Sillery v The Queen

Sillery v The Queen - [1981] HCA 34 - HCA 1981 case summary — Zoe

[19]

The words of s. 8(3) are not unambiguous, and provide no sure answer to the question whether "the punishment" means the penalty that may be inflicted, that is, the maximum punishment, or the penalty that must be inflicted, that is, the only punishment. It is not without significance that s. 8(3) departs from the forms that have been used by legislatures in Australia and the United Kingdom in those cases, nowadays rare, where it is intended to provide a fixed and irreducible penalty of life imprisonment. Some statutes, for example, provide that a person convicted of murder, "shall be sentenced to imprisonment for life" (The Murder (Abolition of the Death Penalty) Act 1965 UK, s. 1) or "shall be sentenced to imprisonment for the term of his natural life" (Criminal Code Tas, s. 158) or "shall be imprisoned for life" (Criminal Law Consolidation Act 1935 SA, as amended, s. 11). Words in that form make the intention of the legislature clear beyond any doubt. Some other statutes provide that a person convicted of murder is "liable" to imprisonment (or penal servitude) for life: see Criminal Code Q, s. 305, Criminal Code WA, s. 282(b), Crimes Act 1900 NSW, as amended, s. 19 and Crimes Act 1958 Vic, as amended, s. 3. The expression "liable to imprisonment for life" is itself not free from ambiguity, and may suggest that there is a discretion as to whether the punishment should be imposed [1] . However, the statutes mentioned contain other provisions which assist in resolving any ambiguities to which the use of the word "liable" may give rise. The Criminal Code Q, by s. 19, the Criminal Code WA, by s. 19, and the Crimes Act NSW, by s. 442, provide that a person liable to imprisonment (or penal servitude) for life may be sentenced to imprisonment (or penal servitude) for a lesser period, but the provisions of those sections are expressly declared to be inapplicable in the case of murder. The Crimes Act Vic uses the expression "shall be liable to imprisonment for a term of not more than years" when it intends to fix a maximum rather than a mandatory sentence. In all these instances, the legislature has made it clear when it intends that it should be mandatory to impose a life sentence. In s. 24 of the Crimes Act 1914 Cth, as amended, by the Death Penalty Abolition Act 1973 Cth, it is provided that a person guilty of treason shall be liable to the penalty of imprisonment for life, and when in other sections it is intended to provide a maximum penalty the device suggested by s. 41 of the Acts Interpretation Act is employed. We are not now concerned to consider the effect of s. 24. What is relevant for present purposes is that the expression used in the Act - "the punishment is imprisonment for life" - is not one that has been used in other statutes when it has been intended to provide for a mandatory sentence of life imprisonment.

[21]

There are strong reasons for understanding the ambiguous words of s. 8(3) as intended to provide for a maximum punishment. To construe s. 8(3) as providing for a mandatory punishment would lead to results that would be plainly unreasonable and unjust. It is true that hijacking is generally a most serious crime, which ought to be punished by severe penalties, as Art. 2 of the Convention recognizes. However, even in the case of such a crime there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion to the judge of trial to impose an appropriate sentence not exceeding the statutory maximum. One may compare, for example, the case of an unarmed drunken man who seeks to take control of an aircraft by the use of his fists with that of a terrorist armed with a bomb. What is even more important is that the offence created by s. 8 of the Act covers a variety of circumstances, including an attempt to exercise control of an aircraft - at least if it is a Commonwealth aircraft - which is not in flight. An attempt made in the course of an industrial dispute to exercise control of an aircraft which is on the ground and which contains no passengers might come within the definition, and although actions of that kind might well be serious, they would not normally be thought to warrant the penalty of life imprisonment in every case. Indeed it is difficult to imagine any good reason for resolving an ambiguity of this kind by construing a statute as providing for a mandatory sentence of life imprisonment. The provision of a maximum punishment would allow the trial judge to exercise a proper discretion as to sentence in the light of all the circumstances, and this is particularly desirable where a number of different acts, some much more blameworthy than others, fall within the definition of the crime. If it is intended to provide a mandatory penalty, clear words can and should be used.

[74]

I return to the central submission for the applicant, that by refraining from inserting any words to indicate that the punishment of life imprisonment is irreducible the legislature has clearly evinced its intention to prescribe only a maximum sentence. Mr. Pincus supports the argument by adverting to the range of conduct which is covered by the offence of hijacking an aircraft. If the Act had confined its attention to the conduct which is the subject of the Convention it might well have been inferred that any violence directed to the unlawful seizure or attempt to seize control of an aircraft in flight is so fraught with danger to life and property that it merits a mandatory sentence of life imprisonment. But that is not the case. Paragraphs (c) and (d) of s. 8(2) define the elements of an offence of hijacking which do not require that the aircraft be in flight at the time of the offence. The offence predicated by those paragraphs could be satisfied by the unlawful seizure or attempt to seize control of an aircraft whilst it is stationary on the ground with no persons on board other than the offender, provided only that the aircraft is either a Commonwealth aircraft or is one owned or operated by the government of another country and is in Australia. However committed, the offence requires the use of force, or threat of force, or some form of intimidation. Nevertheless, one can contemplate the unlawful seizure on the ground of an aircraft of the prescribed description, perhaps in circumstances of industrial confrontation or otherwise, which would prima facie establish the offence of hijacking under the Act and yet not seem to warrant a mandatory punishment of life imprisonment. Of course, it might be expected that in such circumstances different charges, more appropriate to those circumstances, would be laid. But, as Mr. Pincus submits, the possibility remains, and forms part of that context from which the intention of the legislature as expressed in s. 8(3) is to be discerned.

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