In Bui, the appellant sought to argue that the language of Crimes Act 1913 s16A operated to exclude the Victorian provisions overturning sentencing double jeopardy, as s16A requires judges to impose a sentence 'that is of a severity appropriate in all the circumstances of the offence' and to take into account the 'mental condition' of the offender. The argument ran that these general terms were apt to incorporate the common law principle that an appellate court must take into account the distress and anxiety caused by standing for sentence a second time, and that the Victorian provisions prohibiting this consideration were inconsistent with obligation. The court rejected this argument in a most unexpected manner.
And in case you missed just what the court meant, they reiterated it in the penultimate paragraph:Section 16A applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws. In Johnson v The Queen and in Hili v The Queen it was observed that, on its proper construction, s 16A accommodates the application of some common law principles of sentencing. The section has been held to accommodate principles of general deterrence, proportionality, and totality. It is able to accommodate some judicially-developed sentencing principles where such principles give relevant content to the statutory expression in s 16A(1) "of a severity appropriate in all the circumstances of the offence", as well as expressions such as "the need to ensure that the person is adequately punished for the offence", which appears in s 16A(2)(k).Section 16A does not accommodate the "principle" which the appellant seeks to introduce. The appellant submitted that this principle was one of the "other matters" which "the court must take into account" in determining sentence and that it was a matter that operated as an automatic "discount" on the sentence that would otherwise be imposed. Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing. Those terms draw no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal. It has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing. No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.
The "principle" of double jeopardy relied upon by the appellant is not accommodated by the sentencing provisions of s 16A. No question of picking up the Victorian provisions arises. There is no need to resort to the Victorian provisions because the judge-made rule does not apply in the context of s 16A.
Wow. Rather than hold that Victorian law successfully ousted the judge made rule and was picked up for Commonwealth proceedings, the court went further and said that, as a matter of statutory construction, Commonwealth law does not (and hence never has) accommodate the judge-made rule. This means, on my brief search, that the following cases were all wrongly decided:
- DPP (Cth) v D'Alessandro (2010) 26 VR 477
- DPP (Cth) v Moroney [2009] VSC 584
- DPP (Cth) v Hizhnikov [2008] VSCA 269
- DPP (Cth) v Vestic [2008] VSCA 12
- DPP (Cth) v Jackson [2000] VSCA 247
I think you're misreading the judgment (though it ought to have been written more clearly.) The HCA did not, on my reading, hold that 16A bars sentencing double jeopardy. Rather, it holds that 16A doesn't say anything about sentencing double jeopardy and therefore that it does not bar Victoria's statutory repeal of sentencing double jeopardy from being picked up by the Judiciary Act. At [19]-[20], the court explains that that is because 16A lacks textual hooks to pick up sentencing double jeopardy and that it is directed to all sentencing (and therefore cannot include a principle exclusive to appellate sentencing.) There is a strange sentencing in the middle of [19] about an automatic discount being inconsistent with s16A, but I think it could be argued that common law sentencing double jeopardy is not actually an automatic discount. (But the HCA could have been clearer about that. And, of course, in reality SDJ was an automatic discount, which is one reason it was silly.)
ReplyDeleteSo, sentencing double jeopardy can apply in federal jurisdictions, including Victoria prior to the repeal of SDJ. At [26]-[28], the HCA says that the common law principle of sentencing double jeopardy can be picked up by s80, but only where the common law hasn't been overturned by a state statute in the jurisdiction in question. Obviously, Victoria has overturned it. But it wasn't overturned at the time of the judgments you list above. Section 16A doesn't stop s80 from picking up this aspect of the common law, because it says nothing about sentencing double jeopardy.
Personally, I'm glad to see the HCA NOT resurrecting repealed common law on sentencing using bogus statutory interpretation. I wish they'd done the same in Lacey. And Muldrock.
The problem though is that [26]-[28] also states that the common law, as modified by State statutes, is picked up where there is a gap in Commonwealth law. At [28], it states that just because presumed distress or anxiety isn't a factor to consider under s16A, that doesn't mean there is a gap for s80 to operate upon and that resentencing can and will take place in accordance with s16A, without the SDJ fiction.
ReplyDeleteI also don't know what else to make of [29] which seems to be very clear that SDJ is being excluded by s16A and not by the Victorian provisions. Though I wouldn't be surprised if we see another Dickson where Bui is "explained" away to say that s16A does accomodate SDJ in a jurisdiction where that principle has not been repealed by statute.
You do have a point.
ReplyDeleteI agree that [28] can easily be read the way you say. It's a poorly written paragraph. However, i's also dicta, as no-one was arguing that the unmodified common law on SDJ could apply in Bui. An alternative reading of [28] is that it was simply repeating the holding in Blunden: that s80 can only pick up statute-modified common law (which is what the balance of [27] is about.) So, present Victoria law cannot fill any supposed gap in s16A.
[29] is of much more concern, as it isn't dicta, though it is a summary and isn't meant to add anything new to the earlier discussion. Again, it could all too easily be read as you say. But I think it could also be read as follows: the first sentence is about s79 and rebuts Bui's argument that Vic's repeal of SDJ cannot be picked up because of s16A. The second sentence is about s80 and repeats Blunden: that the common law on SDJ cannot be picked up now in Victoria, because Victoria has repealed SDJ. The third sentence is the most confounding, but as per my argument on [28], I think it's just restating that, now that the common law on SDJ has been repealed in Vic, there's no applicable law on this issue federally other than s16A.
The short of it is that the crucial holding of Bui is that SDJ is a common law principle, not a statutory one. So, the SDJ cannot survive the repeal of the common law. What the HCA has to say about the federal position when the common law wasn't repealed is clumsy and vague. The HCA should have been a lot clearer. But, equally, if it had wanted to make the point you say Bui stands for, then the HCA should have been a lot clearer too.
The right judgment, for the right reasons, but very poorly expressed. A bad start to the year, but, for this HCA, better than normal.
An interesting paper by Weinberg: http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2012/Papers%20Sentencing%20Conference/Weinberg%20J%20%20Labyrinthine%20%20.pdf
ReplyDeleteHe agrees with your take on Bui. He raises some difficulties with the ruling (as he sees it.) He also discusses a number of interesting issues about concurrent federal and state sentencing, including a coming 5-judge appeal about the relevance of lesser federal penalties when sentencing for concurrent state offences.