Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623 (13 December 1990)

HIGH COURT OF AUSTRALIA

RADENKOVIC v. THE QUEEN [1990] HCA 54; (1990) 170 CLR 623

F.C. 90/052

High Court - Criminal Law (N.S.W.)

High Court of Australia

Mason C.J.(1), Dawson(2), Toohey(3), Gaudron(3) and McHugh(1) JJ.

CATCHWORDS

High Court - Practice - Special leave - Criminal case - Sentence - Interests of administration of justice in particular case - Judiciary Act 1903 (Cth),s. 35A(b).

Criminal Law (N.S.W.) - Sentencing - Abolition of system of remissions - New scheme of minimum and additional terms - Sentences imposed before abolition to be redetermined in accordance with new scheme - Sentence imposed under former scheme - Resentencing - Principles - Sentencing Act 1989 (N.S.W.), ss. 5,57, Sched. 2.

HEARING

1990, October 5; December 13. 13:12:1990

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

MASON C.J. AND McHUGH J. This application for special leave to appeal raises, if only indirectly, a question of some difficulty concerning the approach to be applied by the New South Wales Court of Criminal Appeal when, having quashed sentences imposed by the sentencing judge before the commencement of the Sentencing Act 1989 (N.S.W.) ("the Act"), it is required to resentence the convicted person after the commencement of the Act. In order to explain the nature of the question, we need to refer to the important changes in sentencing procedures which the Act has introduced.

The new sentencing procedures introduced by the Act

2. Section 3(a) of the Act recites that one of its objects is:

"to promote truth in sentencing by requiring convicted

offenders to serve in prison (without any reduction) the

minimum or fixed term of imprisonment set by the court".

3. The parenthetic reference, "without any reduction", highlights a key difference between the regime of sentencing for which the Probation and Parole Act 1983 (N.S.W.) provided and the new regime introduced by the Act which repealed the Probation and Parole Act. The key difference is the abolition of the system of remissions. Section 58(1) of the Act brought about this result by repealing that part of the Prisons Act 1952 (N.S.W.) which dealt with the system of remissions. The system of remissions contributed to what was perceived to be a fictional element which had emerged in sentencing in New South Wales. That element arose from the combination of, on the one hand, a requirement imposed by s.5(d) of the Probation and Parole Act that the sentencing judge specify a period before the expiration of which a person convicted was not to be released on probation and, on the other hand, the system whereby remissions of sentence were granted as a reward for good behaviour during imprisonment. The practical significance was that the official non-parole period was often substantially longer than the period actually served by a prisoner before release on parole. The appearance and reality of sentences imposed did not coincide: Reg. v. Maclay (1990) 19 NSWLR 112, at pp 121, 123.

4. The Act sought to redress this situation and achieve "truth in sentencing" through the abolition of the system of remissions and the institution of a regime of fixed and minimum terms which accurately stated the period before which a prisoner was not eligible to be released. Section 5(1) in Pt 2 of the Act requires a court, when sentencing a person to imprisonment, to set a minimum term which must be served and an additional term during which the person may be released on parole. The additional term must not exceed one-third of the minimum term "unless the court decides there are special circumstances": s.5(2). The term of the sentence of the court comprises the minimum and the additional term: s.5(4). A court may decline to fix a minimum and an additional term and instead may impose a fixed term of imprisonment that must be served: s.6(1). The legislative change is reflected in the different terminology employed to describe the sentences imposed under the Act, "fixed", "minimum" and "additional" terms being creatures of the new legislation and successors of the earlier expressions "head sentence" and "non-parole period".

The transitional provisions

5. For the sake of uniformity and, no doubt, ease of administration, the Act made provision for the redetermination of sentences imposed prior to its commencement so that those sentences could be expressed in accordance with the sentencing policy and terminology of the Act, specifically the policy that a term imposed as a fixed or minimum term accurately stated the period before which a prisoner was not to be released, whether at large or on parole. The "Savings and Transitional Provisions" of the Act, contained in Sched.2 and designed to effect such redetermination, are set out in the joint judgment of Toohey and Gaudron JJ. It is sufficient for present purposes to observe that the transitional provisions take into account all remissions earned by prisoners prior to the coming into operation of the Act and assume, in favour of those prisoners, that they would have qualified for all available remissions or at least would not have forfeited their right to such remissions by any misconduct in the period between the time of redetermination and the end of their sentences: Sched.2, cl.4.

6. For present purposes two aspects of Sched.2 are important. First, sentences imposed before the commencement of the Act are not entirely redetermined by operation of law; that is, the Act, instead of bringing about a redetermination by force of the application of the provisions of Sched.2, provides for a redetermination by the Offenders Review Board of the relevant non-parole or non-probation period on the basis that the prisoner would have received the maximum remissions possible under the Prisons Act: cl.4(2). Secondly, the Schedule makes no provision for such a redetermination of a sentence imposed by the Court of Criminal Appeal after the commencement of the Act when it quashes a sentence imposed before the commencement of the Act. The only provision in the Schedule which deals with resentencing by the Court of Criminal Appeal is that contained in cl.8(2), a provision to which our attention was not directed in argument. Clause (8)2 provides:

"Part 2 (Sentencing) does not apply to a sentence of

imprisonment or detention imposed on a person after the

commencement of that Part if the sentence is imposed in

proceedings to correct a sentence imposed before that

commencement."

On its face, the sub-clause appears to remove any obligation which might otherwise be imposed by s.5 on the Court of Criminal Appeal to reassess sentences simply in the form of a "minimum" and an "additional" term. The sub-clause in terms appears to require the Court of Criminal Appeal to reassess a sentence as though the Act were not in operation. However, as will appear, cl.8(2) has not been so interpreted.

What is the correct approach to be adopted by the Court of Criminal Appeal?

7. The question then is what approach should the Court of Criminal Appeal adopt in the situation in question. Should the Court simply apply s.5 without regard to cl.8(2) and the policy to which the clause gives expression? Or should it act in conformity with that policy and resentence the convicted person as if the Act were not in operation? Or should it initially assess a sentence and non-parole period which would be appropriate to the circumstances if the Probation and Parole Act and the relevant provisions of the Prisons Act had not been repealed and then redetermine the sentence as it would be redetermined under the Schedule if it had been imposed before the commencement of the Act?

8. The Court of Criminal Appeal has held that cl.8(2) does not exclude the operation of the Act in relation to sentences imposed by it in lieu of sentences quashed on appeal pursuant to the Criminal Appeal Act 1912 (N.S.W.), s.6(3): Reg. v. Valentini (1989) 46 A Crim R 23. According to this interpretation, the operation of cl.8(2) is restricted to the correction of an error in sentencing pursuant to an exercise of the power vested in the court by s.19 of the Criminal Procedure Act 1986 (N.S.W.) (at pp 26-27). The reason for this conclusion was succinctly expressed by the Court of Criminal Appeal in its judgment in Maclay (at p 124) in these terms:

"This necessarily follows from the absence from Schedule 2

of any provision translating a fresh sentence so imposed by

this Court after the commencement of the Act into a minimum

period under the Act."

Whatever one may say about cl.8(2), the legislature plainly did not intend to bring about a resentencing by the Court of Criminal Appeal by reference to the requirements of the repealed legislation without translating the fresh sentence into the terminology of the new legislative regime. The provisions of s.5 and Sched.2 have as their object the bringing into existence of a comprehensive regime in which all sentences, new and old, are expressed according to the new terminology. And, as was noted in Valentini (at p 27), there are administrative and practical advantages in expressing all sentences according to the language of the Act.

The approach adopted by the Court of Criminal Appeal

9. Faced with a choice between the first and third alternatives stated above, the Court of Criminal Appeal has held that the third alternative is the correct approach. Thus, in Reg. v. T (unreported, 15 March 1990) Campbell J. stated (at p 5):

"Whilst the savings and transitional provisions

require that the resentencing to be carried out by this

Court, should it be held that the sentences imposed by the

learned sentencing Judge be quashed, should be in accordance

with Part 2 of the Act, that Part does not either expressly

or impliedly require that the Court depart from what in my

opinion is the clear intention that prisoners sentenced

before the Act took effect should be treated equally. It

is to be observed in passing that Part 2 does not itself make

any direct reference to the remission system or its abolition.

An example of the approach that a person is not to be

disadvantaged by a legislative change occurring after the

commission by him of an offence in the absence of a clearly

expressed contrary intention, is to be found in s.55 of the

Interpretation Act, 1987."

10. The provisions of Sched.2 to the Act give the convicted person the benefit of all potential remissions available, a benefit which would not be available if the Court of Criminal Appeal were to apply what we have described above as the first approach. Campbell J. went on to say (at p 7):

"In my view the appropriate course for this Court to

adopt where called upon to resentence under Part 2, after

upholding an appeal against a sentence imposed before the

Act, is to determine the sentence that would have been

imposed had the Act not been enacted and then to apply the

redetermination and translation provisions of the Act to

that sentence. Such a procedure satisfies the requirement

that the resentencing be under Part 2 and produces a sentence

which conforms with requirements of the new sentencing

scheme whilst ensuring that the appellant or respondent is

treated in the same way as others sentenced at or about the

same time as the sentence appealed from was imposed."

(See also per Allen J. at pp 14-15.)

11. The principle enunciated in T was followed by the Court of Criminal Appeal, differently constituted, in Bond v. The Queen (unreported, 12 April 1990). In that case, Badgery-Parker J. stated (at p 7):

"Not only for reasons of comity, but also because I am

satisfied that the approach outlined in Reg. v. T is correct,

the Court in the present matter should follow that decision."

12. In Reg. v. Maclay, the Court of Criminal Appeal (Gleeson C.J., Hunt and Loveday JJ.) stated (at pp 124-125):

"In successful appeals heard after 25 September

from sentences imposed before that date, this Court has

accordingly as a matter of course determined what sentences

should have been imposed originally and then translated

those sentences by reducing them in accordance with cll 4-5

of Schedule 2: see eg, R v. Burns (Court of Criminal

Appeal, 19 October 1989, unreported). We have done the same

in relation to the separate appeal brought by this present

applicant from the sentence imposed by Ford D.C.J. before

25 September. The basis for doing so is the recognition of

the injustice which would otherwise flow to the particular

prisoner who otherwise would have had his sentence

automatically translated to a minimum term which took into

account the remissions to which he had become at least

prospectively entitled." (emphasis added)

13. This decision, as well as the related appeal from the sentence imposed by Ford D.C.J. which is referred to in the passage cited above, was delivered on 16 February 1990. The decision in Reg. v. Burns, also cited in the passage quoted, referred (at p 9) to the earlier decision of the Court of Criminal Appeal in Valentini. In that case, the Court stated (at p 27):

"We also think that it is appropriate, from a practical

point of view, that where this Court quashes a sentence

imposed prior to the commencement of the 1989 Act, the

new sentence be in accordance with the 1989 Act so that

there can be uniformity within the Corrective Services

administration. We have been informed that all sentences

and non-parole periods existing as at the date upon which

the new Act came into operation, namely, 25 September 1989

have already been converted to minimum and additional terms

within the meaning of the 1989 legislation in accordance

with that legislation. It is appropriate, therefore, from

an administrative and practical point of view that we

sentence the respondent in accordance with the 1989 Act."

14. This passage is not inconsistent with the T approach. True it is that the sentences imposed in Valentini were expressed in the language of the Act, that is to say "minimum" and "additional" terms were imposed. But this was also the case in T where the Court first reassessed then redetermined the sentence in accordance with the principle in Sched.2 to the Act. The expression of sentences in the language of the Act says nothing as to the approach the Court of Criminal Appeal in fact followed in arriving at those sentences. As we read the passage quoted from the judgment in Valentini, the sentences expressed as "minimum" and "additional" terms were reassessed and redetermined in the same way. In other words, they were first reassessed as if the Court of Criminal Appeal were imposing a sentence at the time when the original sentence was imposed, at which time authority dictated that, when setting a head sentence and non-parole period, the sentencing judge should not inflate the level of sentence to be imposed in order to compensate or account for any remissions that would flow to a prisoner: Reg. v. Paivinen [1985] HCA 39; (1985) 158 CLR 489; Hoare v. The Queen [1989] HCA 33; (1989) 167 CLR 348; Malvaso v. The Queen [1989] HCA 58; (1989) 168 CLR 227; and Carbone v. The Queen [1989] HCA 57; (1989) 64 ALJR 51; 89 ALR 45. Once this reassessment had occurred, the sentences were then redetermined in accordance with the principle in Sched.2. Our reading of Valentini is confirmed by the statement made in Maclay that the T approach was followed "as a matter of course" in New South Wales.

15. The T approach has been consistently followed in subsequent cases. The decision in Bond v. The Queen has already been referred to. In Reg. v. John (unreported, 17 July 1990), Samuels J.A., with whom Gleeson C.J. and Maxwell J. agreed, stated (at p 11):

"I would respectfully adopt and apply the view of the

majority in T, that, in effect, resentencing in cases such

as the present requires a special methodology in order to

ensure equivalence between what ought to have been done

correctly under the old Act, and what must now be done under

current legislation."

The approach in T was further confirmed as the "settled approach" by the Court of Criminal Appeal (Kirby P., Sharpe J., Lusher A.J.) in Reg. v. Lian (unreported, 28 June 1990) and by Hunt J. (with whom Finlay and Allen JJ. agreed) in Reg. v. Coleman (1990) 19 NSWLR 467, at p 489.

The correctness of the T approach

16. Although the Crown in the present case conceded that the T approach was correct, some question was raised in argument about the soundness of that approach, the suggestion being that the Court of Criminal Appeal should, in the situation under discussion, proceed directly to apply s.5 of the Act. In ordinary circumstances we would have some hesitation in expressing a firm view about a point not fully argued, but in this case we are impelled to say that we see no reason to doubt the correctness of the T approach. It has been adopted by the Court of Criminal Appeal in a long line of cases; it applies the Act in a manner favourable to convicted persons; it is accepted by the Crown as being correct; it gives effect to a sensible and commonsense approach yielding administrative and practical advantages; and it is a legitimate, indeed the only legitimate, interpretation that can be applied to the transitional provisions which appear, when viewed in their entirety, not to address the specific question, thereby creating an ambiguity.

17. Both context and principle lend support to the T approach. In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement. And, as we have noted, the Act is astute, in those matters to which it gives specific attention, to ensure that persons sentenced under the old regime are not disadvantaged by the legislative changes.

18. In the first passage which we quoted earlier from the judgment of Campbell J. in T (at p 5), there was a reference to s.55 of the Interpretation Act 1987 (N.S.W.). It is relevant also to refer to s.30(1)(b) and (c) of that Act which provides that an amendment or a repeal of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the old legislation or any penalty incurred in respect of any offence arising under that legislation. True it is that, apart from cl.8(2), the Act provides that sentences imposed after the commencement of the Act shall conform with the new regime. However, the general principles governing the interpretation of amending and repealing statutes support the view that the Act should be read as disclosing an intention that persons convicted and liable to be sentenced before the Act took effect should be treated equally and alike.

The history of the present case

19. The applicant was charged with four offences under the Crimes Act 1900 (N.S.W.) and was found guilty of one count under each of ss.59, 61C(1) and 61D(1) of that Act, being acquitted of another count under s.61D(1). The offences in question arose out of a single incident, details of which are briefly recounted in the joint judgment of Toohey and Gaudron JJ. and which need not be repeated here. On 1 September 1989 the applicant was sentenced on each count to three years imprisonment with a non-parole period of eighteen months in respect of each count. The sentences, imposed under the Probation and Parole Act, were to be served concurrently. The Act, which repealed the Probation and Parole Act, came into operation on 25 September 1989.

The decision of the Court of Criminal Appeal

20. On 18 October 1989, the Director of Public Prosecutions for the State of New South Wales sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences imposed by the sentencing judge were inadequate. The Director obtained leave and was successful in the appeal. On 6 March 1990, the Court of Criminal Appeal (Samuels J.A., Wood and Badgery-Parker JJ.) substituted the following sentences:

Count 4 Assault Occasioning Fixed Term of

Actual Bodily Harm imprisonment for 2 years

(Section 59 Crimes commencing on 11 August

Act) 1989 and entitling the

applicant to release on

10 August 1991, subject to

sentence imposed on count 1

Count 2 Sexual Intercourse Fixed term of

Without Consent imprisonment for 2-1/2 years

(Section 61D(1) commencing on 11 August

Crimes Act) 1989 and entitling the

applicant to release on

10 February 1992, subject to

sentence imposed on count 1

Count 1 Maliciously Inflict Minimum term of

Actual Bodily Harm imprisonment of 4-1/2 years

With Intent to Have commencing on 10 August

Sexual Intercourse 1991 and entitling the

(Section 61C(1) applicant to release on

Crimes Act) 10 February 1996 with an

additional term of 1-1/2 years

commencing on 10 February 1996.

As can be seen, the hearing of the appeal post-dated the repeal of the Probation and Parole Act and the coming into operation of the Act.

21. In the present case, prior to the appeal, the three year sentence and eighteen month non-parole period initially imposed upon the applicant was redetermined in accordance with Sched.2 and resulted in a "minimum term" of eleven months, fifteen days and an "additional term" of eleven months, eight days. That sentence may be compared to the six and a half year "minimum term" and one and a half year "additional term" substituted by the Court of Criminal Appeal. The effect of the Court of Criminal Appeal's decision was, therefore, to increase the minimum period to be served by the applicant by a factor of approximately 6.8.

22. Once it is accepted, as it must be, that the Court of Criminal Appeal came to the view that the original sentence imposed was manifestly inadequate, the question arises whether that Court adopted the T approach in resentencing the applicant. It is not clear from the judgment of the Court of Criminal Appeal what approach that Court in fact followed in arriving at the substituted sentences imposed upon the applicant. In argument, counsel for the Crown accepted that the T approach was correct and that it should have been applied in this case. The Crown's submission is simply that this case is not suitable for the grant of special leave to appeal. The Crown must therefore be understood as impliedly, and in our view rightly, conceding that the Court of Criminal Appeal did not follow the correct approach. The Court's reasons for judgment contain no indication that it embarked on the T approach.

Should special leave be granted?

23. The Crown opposes the grant of special leave on two grounds: first, that special leave should not be granted merely to correct sentences which are thought to be excessive and, secondly, that special leave should not be granted as the T approach had not been adopted by the Court of Criminal Appeal until after the delivery of its decision in the present case.

24. With respect to the first of these objections, an application asserting no more than that a sentence imposed on appeal is excessive will not normally attract a grant of special leave: Colefax v. The Queen (1962) ALR 399; Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606, per Gibbs C.J. at p 608; Dawson J. at p 621; Deakin v. The Queen [1984] HCA 31; (1984) 58 ALJR 367; 54 ALR 765. This Court's reluctance to grant special leave against sentencing decisions has been frequently reiterated: Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458, per Stephen J. at p 461; Mason J. at p 467; Aickin J. at p 497; Lowe, per Gibbs C.J. at pp 608-609; Mason J. at p 611; Brennan J. at p 620; Dawson J. at pp 621-622.

25. With respect to the second objection, the circumstance that the T approach had not been adopted by the Court of Criminal Appeal until after its decision in the present case, even if it be true, is no answer to the contention that there was an error of principle embedded in the decision, though the objection might, in appropriate circumstances, provide another answer to the application for special leave, namely, that the question of principle was subsequently settled by later decisions of the Court of Criminal Appeal. However, we are unable to accept that the T approach had not been applied before the decision in the present case. It appears from the earlier review of the authorities, which were not all cited to this Court in argument, that the Court of Criminal Appeal pursued an approach which was the same as the T approach in at least three of its decisions prior to the present case: Valentini, Burns and the separate unreported judgment in Maclay (at p 7). And, in the passage from the reported judgment in Maclay (at pp 124-125), which we have already quoted, the Court stated that it had followed that approach "as a matter of course" in successive appeals heard after 25 September 1989, the present case in our view being an exception to the generality of that statement. Hence, it appears that the Court of Criminal Appeal had proceeded to its decision in this case by following an approach inconsistent with settled principle. In that respect the decision is anomalous and it has resulted in an increase in the applicant's sentences by a factor of 6.8. This very considerable increase in the applicant's sentences may be attributable in part to the failure to apply the T approach, thereby reflecting a denial to the applicant of the benefit of taking into account the potential remissions to which he would have been entitled had that approach been applied.

26. The interests of the administration of justice warrant the grant of special leave to appeal in this particular case: Judiciary Act 1903 (Cth), s.35A(b). Special leave should be granted by reason of the inconsistent approach of the Court of Criminal Appeal, proceeding from what appears to be an error of principle, which produced an unjust and anomalous result in the particular case.

Conclusion

27. The applicant has requested this Court to "pass the sentence and non-parole period which should have been ordered by the Court of Criminal Appeal". That is not a course which this Court will normally follow when special leave to appeal is granted and an appeal is allowed against a sentence. The normal course is to remit the matter to the Court of Criminal Appeal which has the advantage of contemporary knowledge of both local conditions and local sentencing practices: Neal v. The Queen [1982] HCA 55; (1982) 149 CLR 305, per Gibbs C.J. at p 309. Moreover, the Court of Criminal Appeal has the benefit, which this Court necessarily denies itself by virtue of its traditional reluctance to grant special leave to appeal against sentencing decisions, of practical experience in sentencing derived from the fact that it is regularly called upon to review the merits of sentences in the ordinary course of the administration of the criminal law: Veen, per Aickin J. at p 497; Neal, per Brennan J. at pp 322-323. The normal course should be adopted in this case. The matter should be remitted to the Court of Criminal Appeal to set the appropriate minimum and additional terms in light of the approach contended for by the applicant, agreed with by the Crown and followed by the Court of Criminal Appeal both before and after its decision in this case.

DAWSON J. This is an application for special leave to appeal against a sentence imposed upon the applicant by the Court of Criminal Appeal of New South Wales (Samuels J.A., Wood and Badgery-Parker JJ.). The applicant was convicted in the District Court of one count (count 1) of maliciously inflicting actual bodily harm with intent to have sexual intercourse, one count (count 2) of sexual intercourse without consent and one count (count 4) of assault occasioning actual bodily harm. He was acquitted of one count (count 3) of sexual intercourse without consent. He was sentenced to three years imprisonment on each count upon which he was convicted, to be served concurrently, with a non-probation period of eighteen months. The Crown appealed against the inadequacy of the sentence. The Court of Criminal Appeal allowed the appeal and varied the sentence as follows:

"Count 4: Fixed term of 2 years commencing 11/08/89,

entitling (applicant) to be released, subject to

sentence to be imposed on count 1, on 10/08/91.

Count 2: Fixed term of 2-1/2 years commencing 11/08/89

entitling (applicant) to be released 10/02/92

subject to sentence to be imposed on count 1.

Count 1: Term of penal servitude of 4 years commencing

10/08/91 entitling (applicant) to be released on

parole on 10/02/96, and an additional term of 1-1/2

years commencing 10/02/96."

2. Between the date upon which the applicant was originally sentenced and the date upon which the Court of Criminal Appeal imposed its sentence, the Sentencing Act 1989 (N.S.W.) came into force. One of the objects of that Act, expressed in s.3(a), is "to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court". That part of the Prisons Act 1952 (N.S.W.) dealing with remissions is repealed together with the whole of the Probation and Parole Act 1983 (N.S.W.). Section 5 of the Sentencing Act requires a court when sentencing a person to imprisonment for an offence, firstly, to set a minimum term of imprisonment that the person must serve for the offence and, secondly, to set an additional term during which the person may be released on parole. Unless there are special circumstances, the additional term must not exceed one-third of the minimum term. As an alternative, a court may, in the circumstances set out in s.6, decline to set minimum and additional terms and set instead a fixed term of imprisonment that the person must serve for the offence. Under s.9, if a court imposes a further term of imprisonment which is to be cumulative on a previous sentence which has a minimum term, the further sentence must commence at the end of the minimum term of the previous sentence. If there is an appeal against sentence, the court of appeal may, under s.11, vary any minimum and additional terms, rescind any minimum and additional terms and instead set a fixed term or rescind a fixed term and set minimum and additional terms, but in doing so must comply with Pt 2 of the Act which is the Part dealing with sentencing. Section 11 does not limit any other power of the court in determining an appeal.

3. Section 57 of the Sentencing Act, under the heading "Savings and transitional provisions", provides that Sched.2 has effect. Schedule 2 provides, in substance, for the redetermination of existing sentences by the Offenders Review Board upon the repeal of the Probation and Parole Act by reducing the non-parole or non-probation period of each sentence by any remissions already earned and the maximum remissions which might have been earned under the Prisons Act. A sentence so redetermined is to be translated into a minimum term and an additional term calculated in accordance with a formula provided by Sched.2. Schedule 2 also provides in cl.8(2) that Pt 2 of the Act does not apply to a sentence imposed after the commencement of that Part if the sentence is imposed in proceedings to correct a sentence imposed before that commencement. It was not submitted, nor in my view could it be, that this provision has any application upon appeal. It is quite obviously a reference to the procedure under s.19 of the Criminal Procedure Act 1986 (N.S.W.) whereby a court may reopen proceedings to correct sentencing errors. Thus there is no provision that Pt 2 does not apply on appeal and it was common ground that it applied in this case in the proceedings before the Court of Criminal Appeal.

4. Shortly after the decision in this case a differently constituted Court of Criminal Appeal (Gleeson C.J., Campbell and Allen JJ.) heard an appeal against sentence by a prisoner in the case of Reg. v. T (unreported, 15 March 1990). In that case, Campbell and Allen JJ. allowed the appeal and held that, as the original sentence had been imposed before the Sentencing Act came into force, the Court, whilst resentencing in accordance with Pt 2 of the Act, should determine the sentence that ought to have been imposed had the Act not been enacted and should then apply the redetermination and translation provisions of Sched.2 of the Act to that sentence. It was said that this procedure was justified so that the prisoner would spend no longer in custody than he would have done if the appropriate sentence had been imposed in the first place. Gleeson C.J., who dismissed the appeal, did not find it necessary to decide whether the procedure adopted by the other two members of the Court was appropriate, but observed that if it were "it would mean that any re-determined sentence ... would be influenced by special considerations not applicable to offenders coming up for sentence for the first time under the new legislation".

5. Subsequently, in Bond v. The Queen (unreported, 12 April 1990) the Court of Criminal Appeal (Kirby P., Wood and Badgery-Parker JJ.) adopted the procedure suggested in Reg. v. T, but Kirby P. observed that for his part he adopted it "without intellectual persuasion" because the Crown accepted that it was the approach which should be taken.

6. In this case the applicant's original sentence was redetermined by the Offenders Review Board and translated under the Sentencing Act with the result that he was to serve a minimum term of 11 months 15 days imprisonment expiring on 25 July 1990 with an additional term expiring on 3 July 1991. It is conceded by the Crown that, if the sentence imposed by the Court of Criminal Appeal under Pt 2 of the Sentencing Act, amounting in effect to a total of 6-1/2 years minimum term plus an additional term of 1-1/2 years, were to be converted back into a sentence imposed in accordance with the law before the Sentencing Act came into force, it would amount to a sentence of approximately 12 years and 9 months with a non-parole or non-probation period of 10 years and 4 months. I should say that I doubt whether such a conversion back is a useful exercise. There does not appear to be any warrant for regarding the provision made in the Sentencing Act for the redetermination of existing sentences as intended for the calculation of an appropriate sentence otherwise than for the purposes of transition to the new scheme. The Crown also conceded that the Court of Criminal Appeal in this case ought to have applied the procedure adopted in Reg. v. T. Of course it did not, Reg. v. T not having been decided at the time, and the procedure not having gained general acceptance in the Court of Criminal Appeal before that case.

7. Notwithstanding the concession made by the Crown, I am not presently persuaded that the procedure adopted in Reg. v. T is correct, having regard to the provisions of the Sentencing Act. Despite the existence of savings and transitional provisions in Sched.2, none was provided in relation to resentencing upon appeal. The Court of Criminal Appeal was required to impose an appropriate sentence under Pt 2, not under the law as it existed before Pt 2 came into force. Obviously, the Court considered the sentence imposed by it to be the appropriate sentence under Pt 2 of the Act.

8. The transitional provisions for redetermining existing sentences contained in the Sentencing Act might be thought to be generous but necessary to gain acceptance of the scheme of the Act and to enable it to be implemented completely and immediately. There was no similar need for generosity in resentencing upon appeal and the Act does not display it. The Act contemplates a disparity between prisoners whose sentences have been redetermined and translated under the Sentencing Act and those who have been sentenced under Pt 2 of that Act. Such a disparity would seem to be inevitable. But that is the result of the scheme adopted and of the requirement that it be given effect at a particular juncture. Nor does the Act provide for a modified application of Pt 2 in resentencing upon appeal, any more than it does so in relation to the imposition of sentences for offences committed before the Sentencing Act came into force. In this respect a comparison may be made with the Probation and Parole Act which, before its repeal, was amended by the insertion of s.20A dealing with minimum non-parole periods for serious offences. That section was expressed not to apply to offences committed before the commencement of the section which was 1 January 1988.

9. However, in the absence of full argument upon the point it would be wrong of this Court to express any concluded view about the procedure adopted in Reg. v. T. Even if it be submitted without contest, as it was, that the Court of Criminal Appeal was in error in this case in not adopting the procedure adopted in Reg. v. T, it would be inappropriate to grant special leave for the purpose of endorsing that procedure without argument from the Crown.

10. In the end, the ground upon which the applicant must rely is that the sentence imposed upon him by the Court of Criminal Appeal was excessive. Notwithstanding that the interests of the administration of justice in the particular case (see now Judiciary Act 1903 (Cth), s.35A(b)) have always been a matter to be taken into account in considering whether to grant an application for special leave to appeal, the grant of special leave remains discretionary and there must be some special feature of the case which warrants the attention of this Court. If mere error in the individual case were sufficient to justify the grant of special leave, there would be no difference between ordinary leave to appeal and special leave to appeal: cf. White v. The Queen [1962] HCA 51; (1962) 107 CLR 174. Accordingly, where an application for special leave to appeal is against sentence alone, this Court has consistently taken the view that special leave should be granted only where there has been an error of law or a gross violation of the principles of sentencing. Mere excessiveness of sentence has never, of itself, been an adequate ground for the grant of special leave to appeal: Colefax v. The Queen (1962) ALR 399; Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606, at pp 608-609, 611, 621. Not only does such an approach accord generally with the principles upon which special leave to appeal is granted, but it also gives recognition to the advantages which the Courts of Criminal Appeal in the States have because of their knowledge of local conditions and local sentencing practices: Neal v. The Queen [1982] HCA 55; (1982) 149 CLR 305, at pp 309, 323; Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458, at p 497.

11. The sentence imposed by the trial judge was lenient, particularly when redetermined and translated under the Sentencing Act. The increase in the term of imprisonment imposed by the Court of Criminal Appeal under Pt 2 of that Act does not disclose any error in the exercise of its discretion and there is nothing, in my view, to attract the grant of special leave to appeal. Special leave should be refused.

TOOHEY AND GAUDRON JJ. This application for special leave to appeal concerns the operation of the Sentencing Act 1989 (N.S.W.). The long title to that Act describes it as an Act "to promote truth in sentencing; to provide for the procedure to be followed in sentencing prisoners to imprisonment and for the release of prisoners on parole; to repeal the Probation and Parole Act 1983 and amend certain other Acts; and for other purposes". What is at issue is the operation of the Sentencing Act when an offender is resentenced by the Court of Criminal Appeal of New South Wales following an appeal to that Court, the original sentence having been imposed before that Act came into operation.

2. On 28 June 1985, the applicant was charged with a number of offences, all arising out of an incident some two months earlier. He was indicted before a jury on four counts under the Crimes Act 1900 (N.S.W.), as follows:

1. Maliciously inflicting actual bodily harm with intent to have

sexual intercourse: s.61C(1).

2. and 3. Sexual intercourse without consent: s.61D(1).

4. Assault occasioning actual bodily harm: s.59.

3. The applicant stood trial but in March 1987 the jury was unable to reach a verdict. He was admitted to bail until the conclusion of his retrial on 11 August 1989. This time he was found guilty on counts 1, 2 and 4 but not guilty on count 3. On 1 September 1989, his Honour Judge Flannery in the District Court of New South Wales sentenced the applicant to three years imprisonment on each count, to be served concurrently and to date from 11 August 1989. His Honour fixed a non-probation period of eighteen months to commence from 11 August 1989.

4. The Sentencing Act came into operation on 25 September 1989; Pt 2 is headed "Sentencing". Section 5(1) requires a court, when sentencing a person to imprisonment for an offence, to set a minimum term that must be served and an additional term during which the person may be released on parole. The additional term must not exceed one-third of the minimum term "unless the court decides there are special circumstances": s.5(3). The minimum and additional terms together comprise "the term of the sentence of the court for the offence": s.5(4). A court may, in the circumstances referred to in s.6(2), decline to fix minimum and additional terms and may set instead a fixed term of imprisonment that must be served. See also s.11(1)(b). The system of remissions in operation for many years has ceased to exist.

5. Section 57 of the Sentencing Act reads: "Schedule 2 has effect". Schedule 2 is headed "Savings and Transitional Provisions". Clause 5(1) of Schedule 2 provides that every sentence of imprisonment to which a person was subject immediately before the repeal of the Probation and Parole Act 1983 (N.S.W.) (which statute was in force when the applicant was sentenced by Flannery D.C.J.), and in respect of which a non-parole or non-probation period then applied:

"shall be taken to be a sentence consisting of -

(a) a minimum term determined under this clause; and

(b) an additional term determined under this clause".

This was done so as to bring existing sentences into line with those fixed in accordance with the new legislation.

6. The "minimum term" is the period from the commencement of the sentence to the end of the non-parole or non-probation period "as redetermined under clause 4": cl.5(2). The "additional term" is the period from the end of the minimum term so determined to the end of the sentence, "as reduced by any existing remission as referred to in clause 3": cl.5(3). Minimum and additional terms determined under cl.5 of Schedule 2 "are to be taken to have been set under Part 2": cl.5(6). Clause 4 of Schedule 2 redetermines the non-parole or non-probation period of a former sentence by reducing that period by the total of any existing remission (as referred to in cl.3) and all future remissions to which the prisoner might have become entitled (as estimated in accordance with cl.4) had the former provisions relating to remission continued in force. Put shortly, the Offenders Review Board constituted by s.44 of the Sentencing Act is to make a redetermination of the relevant non-parole or non-probation period on the basis that the prisoner would have received the maximum remission possible under s.64(1)(a) and (b) of the Prisons Act 1952 (N.S.W.). Section 64 fell within Pt 11 of the Prisons Act; that Part was omitted by Schedule 3 to the Sentencing Act. The section contained a formula for the calculation of remissions. Consistent with Pt 2 of the Sentencing Act, the minimum term to which cl.5(1)(a) of Schedule 2 refers is the period from the commencement of sentence until a time which equates with the non-parole or non-probation period fixed by the court, less the period of remissions. To the period thus redetermined must be added the "additional term" which is the period from the end of the minimum term, as redetermined, to the end of the sentence, as reduced (in the present case) by any remission to which the prisoner would have been entitled under Pt 11 of the Prisons Act. The effect of s.57 and Schedule 2 is that the non-probation period to which the applicant was subject became a minimum term of 11 months 15 days expiring on 25 July 1990, with an "additional term" expiring on 3 July 1991.

7. The Crown appealed to the Court of Criminal Appeal on the ground that the sentence imposed by the District Court was inadequate. The appeal was allowed and the Court substituted sentences as follows:

1. Sexual intercourse without consent (count 2) - a fixed term

of imprisonment for 2-1/2 years beginning on 11 August 1989 and

entitling the applicant to be released on 10 February 1992,

subject to the sentence imposed on the first count.

2. Assault occasioning actual bodily harm (count 4) - a fixed term

of imprisonment for 2 years beginning on 11 August 1989 and

entitling the applicant to be released on 10 August 1991, again

subject to the sentence imposed on the first count.

3. Maliciously inflicting actual bodily harm with intent to have

sexual intercourse (count 1) - a term of imprisonment for

4-1/2 years beginning on 10 August 1991 and making the applicant

eligible for release on parole on 10 February 1996, with an

additional term of 1-1/2 years beginning on 10 February 1996.

Having determined those sentences as appropriate, Samuels J.A., with whom the other members of the Court of Criminal Appeal agreed, added:

"We impose the fixed terms by reason of the penalty imposed

in respect of the first count and with the view that any

further additional term would serve no purpose."

8. There are a number of grounds of appeal, most of which are unlikely to attract a grant of special leave for they do no more than attempt to argue that the sentences imposed by Flannery D.C.J. were not inappropriate. Only two aspects of the grounds require any consideration by this Court.

9. The first aspect fastens onto the role of the Court of Criminal Appeal in reviewing the sentence and the non-parole period fixed by a sentencing judge. As to that, the Court of Criminal Appeal concluded that, having regard to all the circumstances surrounding the commission of the offences, the sentences imposed by the District Court were manifestly inadequate. With that conclusion there can be no quarrel. On any view they were serious offences. It is unnecessary to recount the events in any detail. It is enough to say that the applicant was a member of a band which was playing at a restaurant. After closing time the band stayed on because of a party taking place in the restaurant. The complainant had arrived while the party was in progress and joined some people whom she knew. Accounts differed of her conduct while she was at the party but there was evidence that she was dancing, as Samuels J.A. put it, "in a somewhat uninhibited fashion". There is no doubt that she had something to drink before she arrived at the party and more drinks thereafter. However, it follows from the jury's verdict that they rejected the applicant's account of sexual intercourse by consent (although they could not have been satisfied beyond reasonable doubt of the complainant's evidence as to a subsequent act of oral intercourse), that they accepted the complainant's evidence as to the violence accompanying the act of sexual intercourse and that they accepted her account of a subsequent act of gratuitous violence.

10. The Court of Criminal Appeal firmly rejected an approach which the Court thought underlay the remarks of the sentencing judge and the submissions of the applicant's counsel on appeal, namely, that the complainant was to some extent the author of her own misfortune. The Court concluded that, taking into account all that could be said on the applicant's behalf including his good reputation and employment record and the time spent in custody before sentence, "these sentences were manifestly inadequate". The applicant has not shown that in reaching its conclusion the Court of Criminal Appeal erred in any way.

11. There is however another aspect of the matter and it bears upon the way in which the Court of Criminal Appeal went about its task of resentencing the applicant. The applicant's submission was that, his original sentence having been fixed before the Act came into operation, the proper approach for the Court of Criminal Appeal was to consider what was an appropriate sentence before that time, namely, when the applicant was originally sentenced, and then "translate" that sentence in accordance with Schedule 2 to give effect to the provisions of the Sentencing Act. The question is one of principle but it is of some importance to see the implications of the applicant's argument. He contended that the result of the decision of the Court of Criminal Appeal was to increase the original sentences imposed by Flannery D.C.J., if translated under Schedule 2, by 6.8 times and, further, that the sentences imposed by that Court, viewed against the sentencing provisions existing before the Sentencing Act came into force, amount to an aggregate sentence of twelve years, with a non-parole period of about ten years. In response, Ms Payne for the Crown said:

"we did an inquiry on a back conversion of the

six-and-a-half year minimum with the one-and-a-half

additional and figures were in fact given that that

converted to a sentence of 12 years 9 months approximately,

with 10 years 4 months and 7 days."

12. The applicant contended, and the Crown accepted, that the proper approach to be taken in the circumstances is to be found in The Queen v. T, a decision of the Court of Criminal Appeal of New South Wales (Gleeson C.J., Campbell and Allen JJ.) (unreported, 15 March 1990). The question whether an appellate court may have regard to the redetermination principles in Schedule 2 to the Sentencing Act and the further question whether the sentencing discretion of such a court is fettered by the "T approach" are not before this Court for decision. However, given the agreement between the parties, there is no reason why this Court should not accept the approach taken in The Queen v. T for the purpose of determining the application. But it must be noted that the judgment of the Court of Criminal Appeal in the instant case was delivered on 6 March 1990, just over a week before judgment was delivered in The Queen v. T. A question therefore arises as to whether, in any event, the Court of Criminal Appeal erred in failing to review the sentences in accordance with the approach taken in that decision, assuming that approach to be correct. First, however, it is necessary to see what The Queen v. T decided.

13. The leading judgment in that case was delivered by Allen J. who observed:

"The effect of the Sentencing Act upon the re-sentencing of

persons previously sentenced under the former legislation

is a different question from that of what sentencing levels

generally are appropriate under the new legislation. It

is a different question because in re-sentencing it would

be offensive to the spirit of the common law and in breach

of the legislative intention manifest in the translation

provisions of the Sentencing Act for the prisoner to be

worse off, in terms of time spent in custody, than he would

have been if the appropriate sentence had been passed in

the first place. It must be recognised, in considering

sentencing levels, that sentences imposed by way of

re-sentence where the prisoner had been sentenced under the

former legislation are in a special category."

Campbell J. spoke to like effect. Gleeson C.J. dissented in the result of the appeal and therefore found it unnecessary to express a view as to the approach to be taken to resentencing in the circumstances then before the Court.

14. In Bond v. The Queen (unreported, Court of Criminal Appeal of New South Wales, 12 April 1990), Wood J. and Badgery-Parker J. each expressed concurrence with the approach taken by the majority in The Queen v. T. Kirby P. was reluctant to accept that approach, inter alia regarding a court as bound, once a sentence had been set aside, to resentence in accordance with the law in force at the time of resentence. Nevertheless, because of existing authority, in particular The Queen v. T, and because, in Bond v. The Queen, the Crown accepted the approach in The Queen v. T as correct, Kirby P. said: "In such circumstances, although without intellectual persuasion, I believe that it is the course that I should take here."

15. As already indicated, the Crown has taken the same stand in the instant case, thereby making a review by this Court of the principles canvassed in The Queen v. T inappropriate on this occasion. What then is there about the application to attract a grant of special leave to appeal?

16. As Mason J. pointed out in Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458, at p 467:

" It is not the practice of this Court to grant special

leave to appeal against sentence. This is because appeals

against sentence rarely involve a point of law of general

application (White v. The Queen [1962] HCA 51; ((1962) 107 CLR 174, at p 176))."

See also Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606. For this reason, an application for special leave to appeal that asserts no more than that the sentence is excessive cannot ordinarily expect to attract a grant of special leave. However, it is necessary to bear in mind that s.35A of the Judiciary Act 1903 (Cth), inserted by Act No.12 of 1984, now requires this Court, in considering whether to grant an application for special leave to appeal, to have regard to a number of matters including:

"(b) whether the interests of the administration of justice,

either generally or in the particular case, require

consideration by the High Court of the judgment to

which the application relates".

17. In our view the interests of the administration of justice in the particular case do require consideration by this Court of the judgment to which the application relates. In the Court of Criminal Appeal, Samuels J.A. mentioned the Sentencing Act in the context of the redetermination that followed the coming into operation of that Act. But there is nothing in the judgment of his Honour that expressly, or indeed by implication, indicates that the Court was applying the principles adopted in The Queen v. T, that is, that the Court was placing itself in the position of the sentencing judge as at the time the applicant was first sentenced, was assessing appropriate sentences as at that time and was then redetermining the appropriate minimum and additional terms. Indeed, it is a reasonable inference that the Court did not approach the resentencing of the applicant in that way for one might have expected the Court to say so. Cf. The Queen v. John (unreported, Court of Criminal Appeal of New South Wales (Gleeson C.J., Samuels J.A., Maxwell J.), 17 July 1990) where the "T approach" was expressly applied in resentencing on appeal. In that event it is likely that the Court, in resentencing the applicant, applied principles different from those which the Court of Criminal Appeal adopted in The Queen v. T and, it is to be assumed, in all comparable cases decided since then. To that extent the position of the applicant is anomalous. The number of prisoners who will be affected by the "T approach" must be limited but, among those prisoners, the applicant has been resentenced according to principles which are not those now applied and which have resulted in a longer term of imprisonment than would otherwise have been the case.

18. The position is that the applicant received from the Court of Criminal Appeal sentences totalling more than twelve years imprisonment when viewed at the time the original sentences were imposed. Having regard to the maximum sentences applicable (12 years imprisonment under s.61C(1), 8 years under s.61D(1) and 5 years under s.59), the fact that all offences arose from the one incident and that the offences, though serious, were not "the worst crimes that can be imagined in these categories", to borrow the language of Samuels J.A., it does seem that the interests of the administration of justice require consideration by this Court of the sentences imposed by the Court of Criminal Appeal. That consideration leads to the conclusion that, although the sentences imposed by Flannery D.C.J. were inadequate, the sentences imposed by the Court of Criminal Appeal are excessive. And the likelihood is that they are excessive because the Court of Criminal Appeal did not approach resentencing on what has become that Court's approach to resentencing in the case of a prisoner who was sentenced before the Sentencing Act came into force. For these reasons, the intervention of this Court is warranted.

19. To put the matter in this way is not to overlook the fact that it is "special" leave to appeal that is sought. But it is to recognise that there is something in the administration of justice in the case in hand that calls for consideration by this Court of the judgment below even though the other considerations to which s.35A of the Judiciary Act refers, and considerations flowing from decisions of this Court before s.35A was enacted, may not advance the applicant's position in this regard. That consideration alone may satisfy the Court that a grant of special leave is warranted. This is such a case.

20. The draft notice of appeal invites the Court to "pass the sentence and non-parole period which should have been ordered by the Court of Criminal Appeal". But it is preferable that the matter be remitted to the Court of Criminal Appeal to set the appropriate minimum and additional (or fixed) terms in the light of the principles adopted in The Queen v. T, not because those principles have the endorsement of this Court, but because they are accepted by the Crown as applicable and now have the endorsement of the Court of Criminal Appeal.

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Quash the sentences imnposed by the Court of Criminal Appeal of New South Wales.

Remit the matter to that Court for determination of sentences in accordance with the judgment of this Court.