Re William Singh v R [1983] FCA 309 (18 November 1983)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM SINGH
And: THE QUEEN
No. NTG 12 of 1982
Criminal Law - Criminal Law and Procedure Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
Woodward J.
Neaves J.

CATCHWORDS

CRIMINAL LAW - Appeal against declaration under s.24 Criminal Law & Procedure Act - "Habitual Criminal" - whether proper sentencing discretion exercised.

Criminal Law & Procedure Act 1978-1981 N.T. s.24 Habitual Criminals Amendment Act 1907 S.A. N.T. Acceptance Act 1910 Habitual Criminals Amendment Act Criminal Code Act 1983 s.397 Parole of Prisoners Act 1971 R v Fahey (1954) V.L.R. 460 R v Tait (1979) 24 A.L.R. 473 R v Roberts (1961) S.R. (N.S.W.) 681 Baldry v R - High Court of Australia 24/6/83 unreported

HEARING

DARWIN
18:11:1983

DECISION

The appellant was convicted after trial by jury on one count of robbery with violence and one count of assault with intent to rape. He was sentenced to imprisonment with hard labour for 5 years on the first count and for 4 years on the second count and the sentences were ordered to be served concurrently. The learned trial judge said, "Having regard to the nature of the offences with which you have been convicted, to your antecedents and to the declaration which I propose to make, I do not think it appropriate that I should fix a non parole period. In pursuance of s.24 of the Criminal Law and Procedure Act I declare that you are an habitual criminal and direct that on the expiration of the sentences I have just imposed you be detained in prison during the pleasure of the Administrator."

The appellant appeals against sentence on the following ground:

"That the declaration that the appellant is an habitual criminal is in all the circumstances unreasonable and amounts to a manifestly excessive sentence."

Section 24 of the Criminal Law and Procedure Act 1978-1981 is as follows:

"24. Where a person convicted of an indictable offence has been previously convicted on at least 2 occasions of indictable offences, the court before which he is convicted may declare that he is an habitual criminal and may direct, as part of his sentence, that, on the expiration of the term of imprisonment then imposed upon him, he be detained in prison during the pleasure of the Administrator."

The appellant, who was aged 27 at the time he was convicted and sentenced, had been previously convicted of indictable offences as follows:

3. 6.66 Larceny (2 counts); Break, enter and steal.
9. 6.66 Break, enter and steal; Attempt break, enter and steal.

12.10.67 Larceny.

10.12.68 Larceny.

27.2.70 Larceny.

6.11.70 Assault with intent to rape.

2.4.73 Break, enter and steal.

24.10.73 Buggery.

6.2.80 Indecent assault.

The convictions on and prior to 6 November 1970 were dealt with in the Children's Court but are nonetheless indictable offences. It is apparent that the appellant more than meets the criteria of being convicted on at least two previous occasions of an indictable offence, indeed so much was very properly conceded by senior counsel who appeared for him.

The power in the Northern Territory to declare a convicted person an habitual criminal is first found in the Habitual Criminals Amendment Act 1907 of South Australia which was continued in force in the Northern Territory pursuant to the Northern Territory Acceptance Act 1910. The Habitual Criminals Amendment Act has not ever been expressly repealed. Section 24 of the Criminal Law and Procedure Act 1978 - 1981 (supra) came into force on 1 July 1978. There has, therefore, been provision for such declarations in the Northern Territory since 1907 and it was apparently reconsidered by the legislature and confirmed in 1978. It is also to be noted that the Criminal Code Act 1983 of the Northern Territory assented to on 4 October 1983 and intended to come into operation on 1 January 1984 contains s.397:

"397.(1) Where any person has been convicted and it appears that by reason of the number of times he has been convicted previously, whether in the Territory or elsewhere, the nature of such convictions or the manner of his life revealed by the evidence or such previous convictions that it is likely he is an habitual criminal, the court, in addition to sentencing him with respect to the offence of which he has been convicted, may call upon him to show cause why he should not be dealt with as an habitual criminal.

(2) In the case of a person so called upon following summary conviction he shall show cause before a judge of the Supreme Court and he shall, in the meantime, be remanded in custody.

(3) If the person called upon to show cause does not show that he is not an habitual criminal he may be declared an habitual criminal."

It should also be mentioned that the Parole of Prisoners Act 1971 came into force in the Northern Territory on 10 May 1972.

A useful statement of the principles governing the exercise of the discretion to make the declaration made in this case is to be found in R v Fahey (1954) V.L.R. 460 where Smith J. says at pp 462 and 463:

" . . . the proper conclusion would appear to be that the purpose of the Legislature in enacting sec. 514 was to arm the Court with a power to deal with a particular class of offenders, namely, the class of offenders who have formed a habit of committing serious crimes and of whom, having regard to their histories, it can be predicted with reasonable confidence that, at the expiration of any term of imprisonment appropriate, according to current standards, to the offences for which they are being sentenced, they will resume their criminal activities. In relation to that class of offenders the normal system of imposing sentences for fixed terms was, from the very definition of the class, inadequate to afford proper protection to the community and the Court was therefore to be armed with the power to provide further protection by directing that such an offender should be held in preventive detention after the expiration of such fixed term of imprisonment as was considered by the Court to be commensurate with the offence for which he was being sentenced."

It may be said without unfairness that the appellant is a man who, particularly when under the influence of liquor, is prone to commit sexual attacks upon females and that he meets the criteria postulated by Smith J.

It is argued that, whereas in the past, declarations that a particular offender was an habitual criminal were fairly regularly made, the use of such a declaration has now fallen generally into disuse. Largely, it is said, because of the introduction of the parole system. However, in the Northern Territory the Parole of Prisoners Act came into force on 10 May 1972 as is mentioned above and as short a time ago as July 1978 the Legislative Assembly enacted s.24 of the Criminal Law and Procedure Act. This indicates that as recently as 1978 the legislature intended that one of the sentencing discretions available to judges in the Northern Territory was to make such a declaration. If the legislature did not wish such declarations to be made or wished them only to be made in special circumstances, it could have repealed the provisions of the Habitual Criminals Amendment Act 1907 (S.A.) or laid down restrictive guidelines. It has done neither. Rather has it confirmed the existence of a power and refrained from placing any limitations upon it.

The learned trial judge when sentencing said:

"I am asked by the Crown to declare you an habitual criminal. I think I should accede to this application. It is evident from your past record that you are a danger in the community, and it is my duty to protect other members of the community from the sort of conduct in which you have been engaging over a long period of time."

There was in the appellant's past history an ample factual basis for what his Honour then said.

The principles which should guide appeal courts when reviewing the exercise of a sentencing discretion are well established. In R v Tait (1979) 24 A.L.R. 473 this court said at p.476:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error."

I am quite unable to say that the learned trial judge was in error in making the declaration sought. Rather do I think that it was proper to make it.

There remains the question of the determinate sentence. The concurrent sentences of 5 years imprisonment for robbery with violence and 4 years imprisonment for assault with intent to rape were, in my view, perfectly proper sentences. Some might see them as somewhat lenient but in view of the nature of the violence and the amount stolen and the relatively mild nature of the sexual assault, I consider them adequate and proper sentences. For some time, however, it has been recognised that when a court makes a declaration that an offender is an habitual criminal, it should impose a light determinate sentence. (R v Roberts (1961) S.R. (N.S.W.) 681)

"When an offender is declared to be an habitual criminal, consideration should be given to imposing, as the sentence for the offence of which he is convicted, a somewhat lighter sentence than would otherwise have been imposed, so that the commencement of the period of detention as an habitual criminal will not be unduly delayed."

(Baldry v R - High Court of Australia 24 June 1982 unreported.)

It is my view that in the case under review the learned trial judge departed from that principle to an extent which warrants interference. I would allow the appeal for the purpose of substituting for the two sentences of 5 years imprisonment and 4 years imprisonment, sentences of 3 years imprisonment and 2 1/2 years imprisonment respectively to be served concurrently, but otherwise I would dismiss the appeal.

In this matter I have had the advantage of reading the draft reasons for judgment of Forster J. I agree with the order which he proposes and with his reasons for that order. In particular, I agree that it is clear that the Northern Territory legislature intends that the provision for declaration of habitual criminals should be used in appropriate cases. It is not merely a provision from the past which has remained on the statute books by default. It is not contested that the appellant meets the criteria for people who may properly be dealt with under the provision. And the contention of senior counsel for the appellant that this Court should substitute for the sentence passed a sentence of 7-8 years imprisonment, with a non-parole period of 5 years, illustrates the necessity for a substantial custodial sentence in this case. I only wish to add some comments of my own because of the concern which I feel about the possible application of the now rare declaration that a person is an habitual criminal.

I am particularly concerned that there has been no such sentence passed in the Northern Territory for about ten years and, I understand, no such sentence has ever been served in the Territory. There are thus no practices or guidelines which would indicate to the Court how such an indeterminate sentence will be applied in practice.

The main argument for the appellant was related to this consideration. It was put that a person with the appellant's record of sexual offences, the details of which were before the learned trial judge and this Court, could conceivably be left in prison for a very long period, with no guaranty of recourse even to the NT Parole Board. It was said to be important that a person in the appellant's situation, who has been in trouble with the police since the age of eleven and spent much of his ten adult years in prison, should be able to know what period he has to serve and should not be cut off from the community for so long that he will never be able to live normally within it.

In my view this argument, although persuasive, provides no sufficient reason for interfering with the exercise of discretion by the learned trial judge. It would, however, be appropriate to stress that full weight should be given by the relevant authorities to the words of the trial judge when he said, as he finished passing sentence,

"As I understand it, your case will be considered from time to time by the relevant authorities. In your own interest it is up to you to make every effort to mend your ways, and to convince the authorities that at some time in the future you are fit to return to society. For what it may be worth, I recommend to the appropriate authorities that you be given psychiatric assistance and any other treatment that may be available to assist you in your problem with alcohol."

With regard to the first sentence quoted, it would seem appropriate that the case of a person undergoing an indeterminate sentence should first be placed before a parole board for consideration within twelve months or so of the expiration of the shortened head sentence preceding the indeterminate sentence, and should remain within the purview of the parole board after that time. This, however, is a matter to be determined by the relevant authorities.

I am in agreement with the reasons contained in the judgment of Forster J. and with the orders proposed.

I also agree with what has been said by Woodward J.