Hayes v R [1967] HCA 29; (1967) 116 CLR 459 (20 September 1967)

HIGH COURT OF AUSTRALIA

HAYES v. THE QUEEN [1967] HCA 29; (1967) 116 CLR 459

Criminal Law

High Court of Australia
Barwick C.J.(1), Taylor(1) and Owen(1) JJ.

CATCHWORDS

Criminal Law - Felony - Sentence - Power to impose cumulative sentences - Convictions on three counts - Criminal Law Consolidation Act, 1935-1937 (S.A.), s. 388 - Crimes Act 1914-1960 (Cth), s. 19 - Interpretation Ordinance 1931-1959 (N.T.), s. 4A - Criminal Procedure Ordinance 1933 (N.T.), s. 2.

HEARING

Sydney, 1967, August 25, 28; September 20. 20:9:1967
APPLICATION for special leave to appeal from the Supreme Court of the Northern Territory.

DECISION

September 20.
THE COURT delivered the following written judgment: -
The applicant, a young man who at the mateial time was serving in Australia to appeal against sentences imposed upon him following upon his conviction on indictment before the Supreme Court of the Northern Territory of a number of offences. Section 47 of the Northern Territory Supreme Court Act, No. 11 of 1961, confers jurisdiction on this Court to grant leave to appeal and to hear such an appeal and provides that if the Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence against which the appeal is brought and pass that other sentence in substitution for the sentence so quashed. (at p460)

2. The indictment against the applicant contained no less than twenty-three counts containing charges for offences which ranged from shooting with intent to murder down to maliciously damaging property, all of them arising out of an incident or series of incidents occurring during a brief period of time on the night of 25th February 1967 when the applicant, inflamed by liquor and having had an argument over the telephone with a girl in the naval service to whom he had earlier been engaged, armed himself with a .22 calibre rifle, drove to a naval establishment near Darwin where the girl was stationed and there fired a number of shots when police officers and others sought to arrest him. The jury convicted him upon five of the counts in the indictment and acquitted him on the remainder but we are concerned only with the sentences which were imposed on the second, the tenth and the twentieth counts. The second count charged the applicant with maliciously shooting at a police officer named Alexander with intent to resist arrest and for this offence the maximum sentence is imprisonment for life. On this count he was sentenced to imprisonment for two years to be cumulative upon the sentence imposed upon the tenth count. That count was for maliciously shooting at one Maley, another police officer, with intent to do grievous bodily harm, the maximum sentence for which is life imprisonment and upon this charge he was sentenced to three years' imprisonment. The twentieth count charged a common assault upon a man named Duncan, the assault consisting of the firing of a shot in the general direction of the latter for the purpose of frightening him. The maximum sentence for the offence is imprisonment for one year and that maximum sentence was imposed, the sentence to be cumulative upon the sentence of two years' imprisonment imposed on the second count. (at p461)

3. The first submission made by counsel for the applicant was that his Honour had no power to direct that more than one sentence be cumulative. This was based upon the terms of s. 388 of the Criminal Law Consolidation Act of South Australia, a provision which is applied to the Northern Territory by the Northern Territory Acceptance Act, No. 20 of 1910. It provides that: "Wherever sentence shall be passed for felony on a person already imprisoned under sentence for another offence, it shall be lawful for the Court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced." We have italicized the significant words in this provision which is in terms very similar to those of s. 25 of 11 and 12 Vict. c. 43 and to the same effect as s. 444 of the Crimes Act of New South Wales. It has been held that, while under s. 25 of the English legislation and under s. 444 of the New South Wales enactment there is power to order that one sentence of imprisonment commence on the expiration of the sentence first imposed, a further sentence cannot be ordered to commence upon the expiration of the second term of imprisonment: R. v. Martin (1911) 2 KB 450 and, in New South Wales, R. v. Lovell (1939) 56 WN (NSW) 75 . The reason for this is explained in R. v. Martin (1911) 2 KB 450 where Pickford J. said: ". . . as the section provides that where a defendant shall be in prison undergoing imprisonment a subsequent sentence to commence at the expiration of the first may be passed, the defendant, being in Court and so restrained of his liberty, is considered in prison as soon as ever the first sentence is passed, and then the provisions of the section come into operation. But imprisonment under the second sentence by its terms does not begin until the expiration of the first, and therefore he cannot be said to be in prison under that, and there consequently seems to be no power under the section to impose a sentence to begin at the expiration of the second" (1911) 2 KB, at p 457 . In the present case the learned trial judge first sentenced the applicant for the offence charged in the tenth count and followed this by the sentence on the second count and then the sentence on the twentieth count. It is clear therefore that his direction that the sentence imposed under the twentieth count should begin at the expiration of the sentence imposed on the second count cannot be supported under s. 388 of the Criminal Law Consolidation Act. (at p462)

4. Our attention was drawn, however, to s. 19 of the Commonwealth Crimes Act and it was suggested that sub-s. (2) of that section enabled his Honour to impose cumulative sentences in the way that he did. Sub-section (1) of that section provides that: "Where a person convicted of any offence against the law of the Commonwealth is at the time of his conviction serving a term of imprisonment for any offence (whether against the law of the Commonwealth or against any other law in force in the Commonwealth or any part of the Commonwealth) the Court before which the offender is convicted may direct that any sentence of imprisonment imposed in respect of the first-mentioned offence shall commence at the expiration of the term of imprisonment which the offender was serving at the time of his conviction." It was not contended that this sub-section had any application to the present case, but sub-s. (2) goes on: "Where a person is convicted of more offences (whether indictable or otherwise) than one before the same Court at the same sitting and is sentenced to more than one term of imprisonment, the Court may direct that the sentences shall be concurrent or cumulative." And by sub-s. (3): "Where two or more sentences are directed to be cumulative, they shall take effect one after the other in accordance with the order in which the convictions are recorded or as the Court directs." If s. 19 (2) operates in a case such as this, there would appear to be no doubt that the learned judge had power to give the directions which he gave, but in our opinion, s. 19 (2) has no application to the present case because of a provision contained in the Interpretation Ordinance 1931-1959 of the Northern Territory. Section 4A (1) of that Ordinance declares that s. 19 of the Commonwealth Crimes Act, so far as it is applicable, shall "apply in relation to all Ordinances as if an Ordinance were a law of the Commonwealth", and "Ordinance" is defined by sub-s. (2) to include "every law of" the State of South Australia "in force in the Territory as a law thereof". It may be that s. 19 should not be regarded as applicable in the Northern Territory because of the fact that s. 388 of the Criminal Law Consolidation Act is in force there but, assuming that it is applicable, s. 4A (1A) of the Interpretation Ordinance provides that: "Notwithstanding the last preceding sub-section, the provisions of sub-section (2) of section nineteen of the Crimes Act . . . shall not apply in relation to an Ordinance as if the Ordinance were a law of the Commonwealth unless the Court before which the person is convicted is constituted by a Judge, a Stipendiary Magistrate or a Special Magistrate." In the present case the Court before which the applicant was convicted was constituted not by a judge but by a judge and jury. Section 4A (1A) was enacted in 1957 and at that time the offences of which the applicant was convicted were, under s. 2 of the Criminal Procedure Ordinance of 1933 tried by a judge without a jury. This no doubt explains why s. 4A (1A) took the form that it did but no amendment has since been made to it although trial by judge and jury for these offences was introduced into the Territory in 1962. (at p463)

5. For these reasons we are of opinion that the direction that the sentence imposed upon the applicant on the twentieth count commence at the expiration of the sentence of two years' imprisonment imposed under the second count should be set aside. (at p463)

6. Counsel for the applicant then submitted that the sentences of three years' imprisonment and two years' imprisonment were, in all the circumstances, excessive and that we should substitute sentences for some lesser term. He emphasized the fact that the learned judge had been strongly impressed by evidence given by one of the applicant's officers in support of a plea for leniency and by the fact that the applicant was only serving temporarily in Australia and that a lenghty prison sentence here would bear more severely upon him than if it were to be served in the country where his parents live. He also submitted that all the offences had been committed in the course of what might be regarded as one occurrence and that this occurrence had resulted from the fact that the applicant, by reason of the drink that he had taken and his anger caused by what had been said to him on the telephone by a girl whom he apparently regarded as having discarded him for another man, had lost his normal self control. The applicant was not, he submitted, a man of criminal instincts. (at p463)

7. We thought that the arguments put by counsel were weighty and, after much deliberation, we have reached the conclusion that it would be proper to make some variation in the order made by the learned trial judge. We therefore grant the application for leave to appeal, set aside the direction that the sentence of two years' imprisonment should commence at the expiration of the term of imprisonment for three years and the direction that the sentence of one year's imprisonment should commence at the expiration of the sentence of two years and, instead, direct that all three sentences be served concurrently. (at p464)

ORDER

Special leave to appeal granted. Order that the sentences on the second and twentieth counts be served concurrently with the sentence on the tenth count in lieu of the directions in this respect given by the trial judge.