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Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 (14 September 1989)

CATCHWORDS

HEARING

DECISION

"At the time he began this series of
robberies and throughout the prisoner was
heavily addicted to the drug (amphetamines).
He would go without sleep under the
influence of the drugs for several days at a
time and he experienced considerably altered
states of consciousness."

2. His Honour thought that it was necessary that he be sentenced to a lengthy gaol sentence but he thought that "his capacity for rehabilitation should not be crushed". He assessed his prospects of rehabilitation as "above average". In the result, his Honour imposed a head sentence of 12 years and, in respect of that head sentence, he specified an aggregate non-parole period of 4 1/2 years. At the time when his Honour passed that sentence his attention had not been drawn to the provisions of ss.20A and 21 of the Probation and Parole Act 1983 (N.S.W.) which were applicable to the offences of armed robbery committed after 1 January 1988. These sections read as follows:

"20A. (1) If -
(a) a non-parole period is to be specified
with respect to one or more offences
(including, where relevant, an offence
for which a term of imprisonment is
already being served); and
(b) the offence or at least one of the
offences is a serious offence,
this section applies to the non-parole
period.
(2) The non-parole period shall be at
least three-quarters of -
(a) the length of the sentence for the only
serious offence involved; or
(b) the total length of the sentences for
all the serious offences involved (any
two or more such sentences that are
wholly or partly concurrent being
treated as one sentence to the extent of
their concurrence).
(3) This section has effect with respect
to non-parole periods specified pursuant to
section 19, 20, 22 or 23.
(4) A reference in this section to a
serious offence does not include a reference
to an offence committed before the
commencement of this section.
21. (1) Notwithstanding sections 19 and
20(1), if it appears to a court required by
section 19 or 20(1) to specify a non-parole
period that -
(a) by reason of the nature of the offence
or the antecedent character of the
person convicted; or
(b) for any other reason which the court
considers sufficient,
the specification of a non-parole period is
undesirable, the court may decline to
specify a non-parole period.
(2) Where a court, pursuant to subsection
(1), declines to specify a non-parole
period, the court shall state the reasons
for that decision.
(3) Notwithstanding section 20A, a court
or the Board, when specifying a non-parole
period with respect to a serious offence,
may specify a shorter period than that
required by section 20A, but only if it
determines that the circumstances justify
that course.
(4) If a court or the Board specifies
such a shorter non-parole period, it shall
state the reasons for doing so."

3. His Honour's attention was drawn to those sections after he passed sentence, and he added the following paragraph to the reasons which he had given:

"Having regard to the degree of contrition
and co-operation with the police manifested
by this prisoner as well as his higher than
average prospects of rehabilitation, I do
not think it appropriate not to depart from
the prima facie seventy-five per cent non-parole
period. I will depart from it. I
will also have it recorded that the tenet
that the legislation providing for the
seventy-five per cent prima facie non-parole
period was in operation at the relevant time
for these matters was not drawn to my
attention by anyone before I retired to
consider my sentence in the matter."

4. The Crown appealed to the Court of Criminal Appeal against both the head sentence and the non-parole period specified by his Honour. The Court of Criminal Appeal allowed the appeal saying that, after taking account of all the facts which the sentencing judge had referred to in mitigation -

"we are nevertheless of the view that the
seriousness both of the main offence and of
the totality of the offences is such that
the head sentence imposed was manifestly
inadequate and that this Court should fix a
head sentence of fifteen years penal servitude."

5. Having determined the appropriate head sentence, the Court of Criminal Appeal said that the proper course for the Court to take was "to exercise its own discretion in relation to the non-parole period." With reference to ss.20A and 21(3), their Honours said:

"The evident purpose of the amending
legislation was to establish a statutory
norm in relation to non-parole periods in
respect of serious offences, and to provide
that such norm could be departed from, but
only in exceptional cases. It is
undesirable to attempt to make an exhaustive
list of the cases that might be regarded as
exceptional. However, two things can be
said. First, such cases must be relevantly
exceptional. . . . Second, (the special
features) must be of such weight as to
justify departure from a statutory norm.
The sentencing judge must pay due regard to
the intention of Parliament reflected in
s 20A."

"(t)here may be cases where particular and
unusual features or the prospects of
rehabilitation of the offender would justify
a non-parole period that would, by
comparison with ordinary sentencing
practice, be regarded as abnormally low by a
substantial margin."

"the mere fact that an offender's prospects
for rehabilitation are 'better than average'
would not justify a departure from the
period prescribed by s 20A. The features of
the case do not exhibit the special or
exceptional circumstances required to
justify an exercise of power under
subs 21(3) and we decline to exercise
that power."

6. In this Court, counsel for the applicant accepts that the Court of Criminal Appeal was entitled to increase the head sentence to 15 years, treating the head sentence as the sentence appropriate to the totality of the offences of which the applicant was convicted, but it is submitted that the Court of Criminal Appeal was in error in construing s.21(3) as requiring the presence of some special or exceptional features to justify departure from the norm prescribed by s.20A. Subject to a qualification relating to the facts of this case, which we shall mention presently, we see no error in the exposition of these provisions by the Court of Criminal Appeal in the passages we have cited.

7. In the course of argument in this Court, counsel's attention was drawn to the manner in which the Court of Criminal Appeal gave effect to its view as to the appropriate head sentence, and that led to a further submission. The Court increased the sentence imposed for the last and most serious offence, committed on 8 January 1988, to 15 years and ordered that the sentences imposed for the other offences (whether committed before or after 1 January 1988) be served concurrently. As we understand the submission now advanced, it is argued that, as the head sentence was determined by taking into account offences committed before 1 January 1988 and as that sentence was imposed for a serious offence committed after that date, the case must be treated as exceptional, because the three-quarters non-parole period specified as the norm by s.20A should not be applied to a head sentence which is determined in part as punishment for serious offences committed before 1 January 1988. This argument was not raised before the Court of Criminal Appeal.

8. The effective sentence which a court determines to be appropriate punishment for a series of offences can be framed, in most cases, either as sentences for the several offences to be served concurrently, or as cumulative sentences, or as sentences which are in part cumulative and in part to be served concurrently. If, with full awareness that s.20A applied only to those serious offences which were committed after 1 January 1988, the Court of Criminal Appeal chose to impose the head sentence of 15 years for the armed robbery committed on 8 January 1988 and to impose lesser head sentences for all other offences to be served concurrently with the 15-year sentence, the sentences so imposed are not open to objection. Nor does the imposition of a head sentence for the armed robbery committed on 8 January 1988 in that way establish an exceptional feature in respect of that offence which might attract the operation of s.21(3). By its terms s.21(3) operates only with respect to an offence to which s.20A applies and s.21(3) operates only when the circumstances of the offence to which s.20A applies are exceptional. The true thrust of the applicant's argument must be that, in a case where s.20A applies to some serious offences in a series but not to others in the series, it is wrong to impose the full effective head sentence on the serious offence or offences to which s.20A applies. We would agree that the differing application of s.20A warrants consideration of the appropriateness of imposing the full effective sentence on the offence or offences to which s.20A applies, but no error of principle appears merely from the Court's having chosen that course. If it be suggested that, in the present case, the Court of Criminal Appeal chose that course without adverting to the differential application of s.20A, it may be answered that that is the merest speculation which, if it be correct, was due to a failure to alert the Court to the implications which that course entailed for the non-parole period. The argument which was raised for the first time in this Court does not persuade us that special leave should be granted.

9. However, the course adopted by the Court of Criminal Appeal did not relieve it of the task of determining whether exceptional circumstances existed which would justify departure under s.21(3) from the non-parole period prescribed by s.20A. The Court approached that task by rejecting as sufficient the mere fact that an offender's prospects of rehabilitation are better than average, at the same time acknowledging that where the prospects of rehabilitation are sufficiently strong a shorter parole period than that prescribed may be justified. It correctly observed that particular circumstances may subject an offender to unusual hardship and may be exceptional enough to bring s.21(3) into play: for example, the offender's health, the nature of the particular offence or the fact that the offender has informed on other offenders. These are factors which are peculiar to individual offenders and are out of the ordinary. Whilst particular factors peculiar to an individual offender may make a case special or exceptional, in our view they do not exhaust the circumstances which can justify the specification of a shorter parole period under s21(3). The Court of Criminal Appeal appears to have taken a contrary view and, in doing so, to have fallen into error in this case.

10. Although there is no particular factor to which an offender can point which of itself would justify a shorter non-parole period, his overall situation might exhibit a number of factors which in combination make the case exceptional and bear upon the suitability of a shorter than normal non-parole period. The power conferred by s.21(3) may properly be exercised in such a case. In the present case, all the offences were committed within little more than a month; the applicant was only 21 years of age without any history of serious criminal activity; he was affected by drugs when he committed the offences, although his addiction to drugs was recent and, apparently, short-lived; his confession of guilt and co-operation with the police suggest that the offences were episodic rather than the manifestation of any ingrained criminal tendency; he had a better than average prospect of rehabilitation. Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances. It appears to us that the Court of Criminal Appeal failed to evaluate them in combination and so failed properly to consider matters which were relevant to the existence of a discretion under s.21(3). The error was an error of principle which justifies the granting of special leave.

11. We would grant special leave, set aside the sentence imposed by the Court of Criminal Appeal and remit the matter to that Court for reconsideration. On reconsideration, the Court of Criminal Appeal will be free to consider the constitution of the head sentences and to determine whether the circumstances justify the course of specifying a non-parole period with respect to the serious offences committed after 1 January 1988 shorter than the non-parole period specified in s.20A. The Court of Criminal Appeal will not be constrained to make its determination by reference solely to one or other of the propositions which have led the several members of this Court to remit the matter to the Court of Criminal Appeal. In determining the appropriate sentence, that Court is free to have regard to the facts of the case and to the operation of s.20A on the head sentences imposed in respect of the serious offences committed after 1 January 1988. Although a majority of this Court has not held that the Court of Criminal Appeal was or is bound to exercise its power under s.21(3), the view of the minority that the Court of Criminal Appeal was so bound reinforces the view of Deane J. and ourselves that it was open to the Court of Criminal Appeal to decide that it was entitled to exercise the power conferred by that sub-section. If that Court determines that a non-parole period should now be specified shorter than the period previously specified, it will be immaterial to the applicant whether the mitigation flows from the exercise of a discretion affecting the constitution of the head sentences or from a discretion arising under s.21(3). The Court of Criminal Appeal is free to exercise its powers de novo albeit accepting that the power conferred by s.21(3) may properly be exercised when the circumstances identified in the judgments now published are present.

DEANE J. The applicant seeks special leave to appeal from a judgment of the New South Wales Court of Criminal Appeal increasing the aggregate sentence imposed and non-parole period fixed in respect of a series of fifteen offences committed by the applicant in December 1987 and January 1988. The offences were centred around six separate armed robberies. In two of them, the applicant used a stolen motor vehicle. In all of them, the applicant succeeded in obtaining a sum of money. In the four armed robberies which occurred in December, the "offensive weapon" used by the applicant was a replica of a Smith & Wesson pistol. In the other two armed robberies, which took place in January 1988, the applicant was armed with a "sawn off" .22 calibre rifle. All of the robberies involved an individual being threatened by the applicant with the relevant weapon. At the time he committed the series of crimes and throughout them, the applicant was addicted to, and affected by, amphetamines. On each occasion, he was accompanied by an accomplice whose identity he continues to protect.

2. In the course of the second of the January 1988 armed robberies, the applicant used the rifle to shoot the victim of his crime. This robbery occurred in a newsagency in the Sydney suburb of Little Bay. The applicant ordered an employee of the business, Mr. Nabil Habib, to lie on the floor behind the till. He then directed Mr. Habib to accompany him as he was leaving the premises. In compliance with that direction, Mr. Habib approached the applicant. The applicant shot him in the chest. The learned sentencing judge expressed the view that the applicant "appears to have thought that Habib was resisting him and shot him to prevent Habib doing so." The applicant had previous convictions but they were for non-comparable offences. The most serious of them was for stealing for which he was sentenced to three months imprisonment. He was, at the time of the offences, 21 years old.

3. The learned sentencing judge, having regard to the "totality" principle appropriate to a series of related offences committed in a short period (see, e.g. Mill v. The Queen [1988] HCA 70; (1988) 63 ALJR 117, at pp 118-119; [1988] HCA 70; 83 ALR 1, at pp 3-4), concluded that it was appropriate "to impose head sentences which will aggregate to twelve years, and in respect of them to specify an aggregate non-parole period of 4 1/2 years." His Honour did this by imposing fifteen concurrent sentences comprising a sentence of 12 years imprisonment in respect of the particular offence of armed robbery and wounding of Mr. Habib, a sentence of one year's imprisonment for the first armed robbery, sentences of six years imprisonment for the other four armed robberies, and sentences of one year's imprisonment for each of the associated offences, including the two offences of larceny of a motor vehicle. In fixing the non-parole period, his Honour was influenced by what he considered to be the applicant's genuine remorse and "above-average prospects" of rehabilitation. On appeal, the Court of Criminal Appeal (Gleeson C.J., Lee C.J. at C.L. and Hunt J.) increased the sentence for the robbery and wounding offence from 12 to 15 years imprisonment and substituted a non-parole period of 11 years and 3 months. Otherwise, their Honours did not interfere with the sentence imposed by the learned sentencing judge. Their Honours indicated that the resulting aggregate head sentence of 15 years was less than would, in their view, have been appropriate were it not for the fact that it was being imposed as an increased sentence by an appellate court. The applicant has not sought to argue that an aggregate head sentence (i.e. the total of cumulative sentences) of 15 years was excessive. The only arguments advanced in this Court are arguments to the effect that the Court of Criminal Appeal misconstrued or misapplied provisions of the Probation and Parole Act 1983 (N.S.W.) ("the Act").

4. The primary ground on which the applicant relies is that the Court of Criminal Appeal misconstrued the provisions of s.21(3) of the Act. That provision must be read in the context of s.20A which commenced on 1 January 1988 and which provides:

"20A. (1) If --
(a) a non-parole period is to be
specified with respect to one or
more offences (including, where
relevant, an offence for which a
term of imprisonment is already
being served); and
(b) the offence or at least one of the
offences is a serious offence,
this section applies to the non-parole
period.
(2) The non-parole period shall be at
least three-quarters of --
(a) the length of the sentence for the
only serious offence involved; or
(b) the total length of the sentences
for all the serious offences
involved (any two or more such
sentences that are wholly or partly
concurrent being treated as one
sentence to the extent of their
concurrence).
(3) This section has effect with respect
to non-parole periods specified pursuant to
section 19, 20, 22 or 23.
(4) A reference in this section to a
serious offence does not include a reference
to an offence committed before the
commencement of this section."

5. Having decided that the aggregate head sentence should be increased from 12 to 15 years, the Court of Criminal Appeal exercised its own discretion in fixing the non-parole period. Their Honours expressed the view that a judge would, in a case to which s.20A applied, be justified in fixing a shorter non-parole period than the period specified in s.20A only if he were persuaded that the case was a special or exceptional one. In the course of their judgment, they said:

"The evident purpose of the amending
legislation was to establish a statutory norm
in relation to non-parole periods in respect
of serious offences, and to provide that such
norm could be departed from, but only in
exceptional cases. It is undesirable to
attempt to make an exhaustive list of the
cases that might be regarded as exceptional.
However, two things can be said. First, such
cases must be relevantly exceptional. In
other words their special features must
relate to matters otherwise proper to be
taken into account in fixing a non-parole
period. Whilst it would be unduly rigid to
say that such matters could not possibly
include matters that were also relevant to
the head sentence, they would be matters
which have some special significance in
relation to the non-parole period. Second,
they must be of such weight as to justify
departure from a statutory norm. The
sentencing judge must pay due regard to the
intention of Parliament reflected in s 20A."

"There may be cases where particular and
unusual features or the prospects of
rehabilitation of the offender would justify
a non-parole period that would, by comparison
with ordinary sentencing practice, be
regarded as abnormally low by a substantial
margin."

6. In my view, the Court of Criminal Appeal was correct in treating s.21(3) as enabling a sentencing judge to impose a lesser non-parole period than the minimum period prescribed by s.20A only in a case where the circumstances are special or exceptional. Section 20A sets the statutory norm. Section 21(3) allows departure from that norm - "but only" in the exceptional or special case where circumstances "justify" it. Obviously, as their Honours expressly recognized, "the prospects of rehabilitation of the offender" could, in some cases, justify a case being seen as falling into that special or exceptional category. In the context of the view which their Honours took of the circumstances of the present case, I do not see their comment that "the mere fact that an offender's prospects for rehabilitation are 'better than average' would not justify a departure from the period prescribed by s 20A" (emphasis added) as involving any error of law. Indeed, were it otherwise, the statutory norm would presumably be rendered inapplicable to about one half of sentences on the "mere" ground that the offender's prospects of rehabilitation were at least marginally better than the discouragingly poor average. In my view, the applicant's primary argument is without substance.

7. A secondary argument advanced on behalf of the applicant possesses greater force. As has been said, the learned trial judge fixed the aggregate sentence of 12 years imprisonment and the non-parole period of 4 1/2 years by reference to the "totality" principle. His Honour expressly stated that he wished to make it clear that he had been "concerned to punish the whole of the criminality rather than, with over-much nicety, to specify particular sentences for particular crimes." It would seem that the case was argued in the Court of Criminal Appeal on the basis that that was the correct approach and their Honours made clear that they accepted that the "totality" principle was applicable and that the increase from 12 to 15 years in the sentence for the offence of robbery and wounding was made for the purpose of producing a corresponding increase in the aggregate sentence. In criticizing the aggregate sentence of 12 years imposed by the sentencing judge, their Honours remarked that the robbery and wounding offence "alone . . . would have warranted a head sentence of twelve years penal servitude." It was submitted on behalf of the applicant that that comment indicates that the increased sentence of 15 years imposed for that particular offence was unduly inflated to reflect the applicant's overall criminality, including criminality in respect of the December 1987 offences.

8. The "totality" principle does not preclude regard being paid to the other offences in the relevant series in assessing the weight to be given to factors favouring mitigation of the punishment which would otherwise be justified as appropriate to a particular offence viewed in its objective circumstances. That principle cannot, however, justify the imposition of a heavier sentence for the particular offence than that which is justified as such punishment (see, generally, Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491 and 496). That being so, it is, at best from the applicant's point of view, debatable whether their Honours' comment that the applicant's crime of armed robbery with wounding "alone" would have warranted a head sentence of 12 years penal servitude indicates that they may have unduly increased the sentence for that particular crime. If it does and if the matter had been raised before the Court of Criminal Appeal, it is likely that their Honours would have thought that the appropriate course was to make nine years of the sentence of 12 years imposed for the offence of robbery and wounding cumulative upon one or all of the various concurrent sentences of six years imposed in respect of four of the other offences of armed robbery. If that were all that was involved, the point would be a bare technical one which could not warrant the intervention of this Court since the most serious of the offences attracting a sentence of six years was obviously the other offence committed with a real firearm which was also committed in January 1988. In that regard, it should again be stressed that counsel for the applicant expressly disclaimed any suggestion that the period of 15 years which the Court of Criminal Appeal held to be the appropriate aggregate sentence pursuant to the "totality" principle was, in itself, open to attack on the ground that it was unjustifiably excessive.

9. The applicant's submission that the sentence of 15 years was excessive for the particular offence of armed robbery and wounding was, however, advanced as but the first step in an attack upon the increased non-parole period fixed by the Court of Criminal Appeal. The applicant's argument in that regard focuses upon the fact that s.20A of the Act only applies in relation to serious offences which were committed after 1 January 1988 (see s.20A(4), above). The aggregate sentence of 15 years imprisonment imposed by reference to the "totality" principle included, so it is said, an element of punishment attributable to all offences, including the 1987 offences. That being so, an erroneous inflation of the sentence for the armed robbery and wounding offence to include the whole of that 15-year period would produce the consequence that s.20A applied in respect of a wrongly inflated period of imprisonment. The answer to this argument lies in what has been said above. If the sentence of 15 years for the particular crime of armed robbery and wounding should properly be seen as excessive, the obvious variation of the sentences imposed by the learned trial judge to achieve what the Court of Criminal Appeal saw as the minimum aggregate sentence of 15 years imprisonment was to make the sentence of 12 years imposed by the learned sentencing judge for that offence partly cumulative upon the sentence or sentences of six years imposed for the worst or all of the other offences of armed robbery. If that course were followed, it is not suggested that the "total length" of the sentences in respect of the January 1988 "serious offences" could properly be seen as excessive. That "total length" would still provide a situation in which s.20A would produce a minimum non-parole period of 11 years and 3 months since the aggregate of the sentences imposed in respect of the January 1988 "serious offences" would, to the extent that they would then be cumulative, be 15 years.

10. There remains to be mentioned an argument which emerged in the course of discussion in this Court. The question which that argument raises is whether the fact that the series of offences in the present case straddled the critical date (for the purposes of s.20A) of 1 January 1988 constituted, in the circumstances, an important consideration of supporting a conclusion that the circumstances of the case were such as to justify the fixing of a shorter non-parole period than that prescribed by s.20A. It is not suggested that that argument was advanced by the applicant in the Court of Criminal Appeal and the question which it raises is not adverted to in the judgment of that court. I have been much troubled about whether, in these circumstances, it is appropriate to consider that question on this application. With considerable doubt, I have come to the view that, in circumstances where the members of this Court are formulating considered and detailed reasons for judgment, the interests of justice will be better served if it is dealt with than if it is left unresolved. In coming to that view, I am mindful of the fact that the case involves an aspect of double jeopardy in that the increase of the applicant's sentence and non-parole period by the Court of Criminal Appeal represents a deprivation of liberty which had already been in jeopardy before the sentencing judge. The Court of Criminal Appeal was, no doubt, referring to that aspect of the case when it indicated that the head sentence which it imposed was less than would have been appropriate were it not for the fact that it was being imposed as an increased sentence by an appellate court. I am also influenced by a clear view that the question should be answered favourably to the applicant and that, in the result, the Court of Criminal Appeal failed to advert in its judgment to a relevant and important consideration in fixing the appropriate non-parole period. So to say implies no criticism of the Court of Criminal Appeal which must, of necessity, ordinarily deal with cases ex tempore and on the basis of the arguments presented by counsel.

11. In my view, the consideration that the aggregate of the sentences for the two serious offences committed after 1 January 1988 represents the appropriate aggregate sentence under the "totality" principle for a series of offences straddling that date was, of itself, an essential factor to be taken into account (pursuant to s.21(3)) in determining whether the circumstances of the present case justified the specification of a shorter non-parole period than that required by s.20A. There may, of course, be cases in which that consideration would obviously not lead a court to determine that "the circumstances justif(ied)" a shorter non-parole period than the minimum period determined by the application of s.20A. If, for example, it was clear that sentences imposed in respect of offences committed after 1 January 1988 did not exceed the sentences which would have been imposed if those offences had been punished in isolation, the consideration would be of little, if any, real relevance. In a case such as the present, however, where the sentences imposed for one or more of the offences committed after 1 January 1988 represent what is seen as the appropriate total punishment for a series of major offences committed mainly before that date, it is difficult to see the sentences imposed for the offences committed after 1 January 1988 as clearly not exceeding the sentences which those offences would probably have attracted if punished in isolation.

12. It is necessarily a matter of speculation whether the Court of Criminal Appeal would have concluded that the circumstances justified the fixing of a lesser non-parole period than the minimum determined by the application of s.20A if its attention had been drawn in argument to the relevance, for the purposes of s.21(3), of the consideration that the six central offences involved in the series of offences to which the aggregate head sentence of 15 years was appropriate included four offences to which the provisions of s.20A were inapplicable for the reason that they had been committed prior to 1 January 1988. However, it seems to me that there is a significant likelihood that the Court of Criminal Appeal would, if their Honours' attention had been drawn to that aspect of the case, have concluded that the circumstances of the case were special or exceptional in the sense of justifying a departure from the statutory norm specified by that section. As I read the judgment of the Court of Criminal Appeal, their Honours were of the view that the application of s.20A would ordinarily lead to the fixing of a harsher non-parole period than that which would otherwise be appropriate. It seems to me that that was so in the circumstances of the present case. In the context of the applicant's age and his "better than average" prospects of rehabilitation, the consideration that the minimum non-parole period of 11 years and 3 months resulted from the application of s.20A to what was seen as the appropriate aggregate head sentence for a series of offences which included a majority of offences beyond the reach of that statutory provision was clearly of critical significance for the purposes of s.21(3). In that regard, it should be borne in mind that when concurrent sentences are imposed under the "totality" principle for a series of crimes, it is commonplace for the leading head sentence to be fixed towards the upper limit of what is justifiable as punishment for the particular crime viewed on its objective facts in order to reflect the "totality" of the criminality involved in all the crimes.

13. Accordingly, I would grant special leave to appeal, allow the appeal and quash the order fixing a non-parole period of 11 years and 3 months. Since the Court of Criminal Appeal may think it appropriate to restructure the head sentence, I would also quash the head sentence of 15 years for the offence of armed robbery with wounding and the order that that sentence be served concurrently with the sentences for the other offences. I would remit the matter to the Court of Criminal Appeal to redetermine the sentence in relation to that offence of armed robbery with wounding and to fix the appropriate non-parole period.

14. There is one further matter which should be specifically mentioned. It is that it does not appear to me that the Court of Criminal Appeal fell into the error of failing to appreciate the need to advert to the applicant's overall situation in determining whether the case came within s.21(3) of the Act. The only reason why I would interfere with the sentences imposed by the Court of Criminal Appeal is that which I have indicated, namely, that it appears to me that the failure of counsel to raise the matter led their Honours to overlook the significance, in a case such as the present where the leading sentence reflects total criminality involved in a series of offences, of the fact that most of the offences had been committed before 1 January 1988. It will, however, obviously be necessary for the Court of Criminal Appeal, in reconsidering the question whether the case comes within s.21(3), to take account of all the circumstances including the matters referred to in the penultimate paragraph of the judgment of Brennan and Dawson JJ.

GAUDRON AND McHUGH JJ. This is an application by a convicted person for special leave to appeal against a judgment of the Court of Criminal Appeal of New South Wales. That Court allowed an appeal brought by the Crown against the imposition in the District Court of New South Wales of a head sentence of 12 years penal servitude and a non-parole period of 4 years 6 months. In lieu thereof, the Court of Criminal Appeal sentenced the present applicant to 15 years imprisonment and specified a non-parole period of 11 years and 3 months. The question in the application is whether the Court of Criminal Appeal erred in refusing to exercise its discretion, pursuant to s.21(3) of the Probation and Parole Act 1983 (N.S.W.), to reduce the non-parole period below three-quarters of the sentence which is the period otherwise required by s.20A of that Act.
The Factual Background

2. In the District Court the applicant pleaded guilty to committing 15 offences on and between 4 December 1987 and 8 January 1988. One charge arose from an offence of robbery whilst being armed and wounding; five charges arose from offences of robbery whilst being armed; four charges arose from the possession of imitation firearms with intent to commit indictable offences; two charges arose from the possession of firearms with intent to commit an indictable offence; two charges arose from the larceny of motor vehicles; and one charge arose from the possession of a shortened firearm. Nine of the offences were committed before 1 January 1988, the date on which s.20A of the Probation and Parole Act took effect. One offence of armed robbery and one offence of possession of a .22 calibre rifle occurred on 3 January 1988. Four offences occurred on 8 January 1988. They were the offences of robbery with wounding, having possession of a .22 calibre rifle, having a .22 calibre rifle in his possession with intent to commit an indictable offence, and larceny of a motor vehicle.

3. The applicant was born on 19 June 1966. Until he was sentenced for the present offences, he had a minor criminal record. The learned trial judge, who had the advantage of seeing and hearing the applicant give evidence, accepted that at the time "he began this series of robberies and throughout" he was "heavily addicted" to amphetamines. His Honour also thought that the applicant showed genuine remorse and contrition and that he had "above-average prospects of rehabilitation". The learned trial judge sentenced the applicant to 12 years on the count of armed robbery with wounding and to various periods in respect of the other offences, the longest of these periods being six years. The latter sentences were made concurrent with the sentence of 12 years in respect of which his Honour specified a non-parole period of 4 1/2 years.

4. The Probation and Parole Act as it applied from and after 1 January 1988 provided:

"20A. (1) If -
(a) a non-parole period is to be
specified with respect to one or more
offences (including, where relevant,
an offence for which a term of
imprisonment is already being
served); and
(b) the offence or at least one of the
offences is a serious offence,
this section applies to the non-parole
period.
(2) The non-parole period shall be at
least three-quarters of -
(a) the length of a sentence for the only
serious offence involved; or
(b) the total length of the sentences for
all the serious offences involved
(any two or more such sentences that
are wholly or partly concurrent being
treated as one sentence to the extent
of their concurrence).
. . .
(4) A reference in this section to a
serious offence does not include a reference
to an offence committed before the
commencement of this section."
"21. . . .
(3) Notwithstanding section 20A, a court
or the Board, when specifying a non-parole
period with respect to a serious offence, may
specify a shorter period than that required
by section 20A, but only if it determines
that the circumstances justify that course.
(4) If a court or the Board specifies
such a shorter non-parole period, it shall
state the reasons for doing so."

5. "Serious offence" is defined to mean an offence referred to in Sched.5, s.4(1). Schedule 5 identifies a number of statutory and common law offences under the headings of (1) "Homicide, grievous bodily harm etc."; (2) "Abduction and kidnapping"; (3) "Robbery"; (4) "Sexual assault"; and (5) "Drug trafficking etc.".

6. As the result of the definition of "serious offence" in s.4(1) and the exclusion from that definition of offences committed before 1 January 1988 (s.20A(4)), only two of the fifteen offences were covered by s.20A. They were the offence of armed robbery committed on 3 January 1988 and the offence of robbery with wounding committed on 8 January 1988.

7. Counsel did not draw the attention of the learned trial judge to the terms of ss.20A and 21, however, until after he had pronounced sentence. His Honour then said:

"Having regard to the degree of
contrition and co-operation with the police
manifested by this prisoner as well as his
higher than average prospects of
rehabilitation, I do not think it appropriate
not to depart from the prima facie seventy-five
per cent non-parole period. I will
depart from it. . ."

8. As the Court of Criminal Appeal observed, the objective circumstances of the principal offences in question were very serious. Armed robbery with wounding carries a maximum sentence of penal servitude for life. The Court of Criminal Appeal said:

"That crime alone, in the present case, would
have warranted a head sentence of twelve
years penal servitude.
The totality of the criminality involved
in all the relevant offences warranted a head
sentence substantially in excess of twelve years."

9. The Court noted the subjective factors relied upon by the learned judge in his reasons for judgment but commented that it was by no means clear what the learned trial judge had had in mind in referring to the applicant's "above-average prospects of rehabilitation". The Court went on to say:

"Taking all those facts into account we are
nevertheless of the view that the seriousness
both of the main offence and of the totality
of the offences is such that the head
sentence imposed was manifestly inadequate
and that this Court should fix a head
sentence of fifteen years penal servitude."

10. The Court then stated, correctly in our opinion, that the proper course in the circumstances was for it to exercise its own discretion in relation to the non-parole period. Their Honours rejected the view that the amending legislation achieved "practically nothing at all". They pointed out that, prior to the amendments, three-quarters of a head sentence would have been regarded as a long non-parole period, at the top or close to the top of the range within which normal periods were ordinarily set. Their Honours said that, since Parliament must have been aware of this factor, the amending legislation was plainly intended to have a punitive effect. They pointed out that the evident purpose of the amending legislation was to establish a statutory norm in relation to non-parole periods in respect of serious offences and to provide that the norm should be departed from only in "exceptional circumstances". They also pointed out that to depart from the norm the special features of the case must be relevantly exceptional in the sense that they must relate to matters which were proper to be taken into account in fixing a non-parole period. Further the special features had to be of such weight as to justify departure from the statutory norm.

11. Their Honours concluded that the circumstances of the present case did not warrant the exercise of the power conferred on it by s.21(3). They said:

"As was indicated above we are considerably
less impressed than was his Honour by what
he described as the 'prospects for
rehabilitation', and in any event, following
the legislative amendment, the mere fact that
an offender's prospects for rehabilitation
are 'better than average' would not justify a
departure from the period prescribed by
s 20A. The features of the case do not
exhibit the special or exceptional
circumstances required to justify an exercise
of power under subs 20(3) (sic) and we
decline to exercise that power."

12. In the result the Court quashed the head sentence of 12 years penal servitude and the non-parole period of 4 years 6 months. In lieu thereof their Honours sentenced the applicant to 15 years penal servitude with a non-parole period of 11 years 3 months. The concurrent sentences on the other charges were not altered.
The Court of Criminal Appeal should have exercised its power under s.21(3)

13. Counsel for the applicant made four submissions. First he submitted that the Court of Criminal Appeal erred in its construction of s.21(3) of the Probation and Parole Act because the Court said that the discretion could only be exercised in special or exceptional cases. Secondly, counsel submitted that that Court erred when it said that the mere fact that an offender's prospects of rehabilitation were better than average would not justify a departure from the period prescribed by s.20A. These two submissions must be rejected. The non-parole period prescribed by s.20A is the norm. A reduced non-parole period brought about by the exercise of the power conferred by s.21(3) is an exception to this norm. It was no error, therefore, for the Court of Criminal Appeal to say that the norm should be departed from only in exceptional circumstances. Nor did the Court err when it said that the "mere fact" that a prisoner had better than average prospects of rehabilitation was not itself sufficient to justify a departure from the statutory norm specified in s.20A. The exercise of the discretion in favour of the prisoner can only be made if "the circumstances justify that course": s.21(3). The prospect of rehabilitation is only one of the circumstances which must be taken into account. In a case where the other circumstances are relatively neutral or are of little weight, an above average prospect of rehabilitation may be sufficient to justify the exercise of the discretion under s.21(3) in favour of the prisoner. Indeed the Court of Criminal Appeal recognised that this could be so when it said:

"There may be cases where particular and
unusual features or the prospects of
rehabilitation of the offender would justify
a non-parole period that would, by comparison
with ordinary sentencing practice, be
regarded as abnormally low by a substantial
margin."

14. The third submission of counsel for the applicant was that the Court of Criminal Appeal erred in sentencing the applicant on the totality principle when two of the offences were "serious offences" and the other offences were not "serious offences". As a result of a comment from a member of this Court, however, counsel for the applicant put a fourth submission. He submitted that the Court of Criminal Appeal erred in refusing to exercise its discretion under s.21(3) because it failed to take into account that most of the offences were not "serious offences" within the meaning of s.20A.

15. The reasons for judgment of the Court of Criminal Appeal show that the applicant received a sentence of 15 years in respect of the charge of robbery and wounding because "the totality of the offences is such that the head sentence imposed was manifestly inadequate". It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Reg. v. Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice, (1985), p 282; Hall, Sentencing in New Zealand, (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently. In Attorney-General v. Tichy (1982) 30 SASR 84, King C.J. said (at p 85):

"The essential thing to be borne in mind is
that if the sentences are made consecutive
there must be no overlapping of the factors
brought into account in determining the
length of each sentence; similarly, if the
sentences are made concurrent the gravity of
the total criminal conduct must be reflected
in the leading sentence."

16. But as Wells J. pointed out in the same case (at p 93):

"The practice of imposing either concurrent
or consecutive sentences cannot avoid
creating anomalies, or apparent anomalies,
from time to time. What must be done is to
use the various tools of analysis to mould a
just sentence for the conduct of which the
prisoner has been guilty. Where there are
truly two or more incursions into criminal
conduct, consecutive sentences will generally
be appropriate. Where, whatever the number
of technically identifiable offences
committed, the prisoner was truly engaged
upon one multi-faceted course of criminal
conduct, the judge is likely to find
concurrent sentences just and convenient.
There are dangers in each course. Where
consecutive sentences are imposed it may be
thought that they are kept artificially apart
where they should, to some extent, overlap.
Where concurrent sentences are imposed, there
is the danger that the primary term does not
adequately reflect the aggravated nature of
each important feature of the criminal
conduct under consideration."

17. However, the terms of s.20A do not sit easily with these principles of sentencing which courts in England, Canada, New Zealand and Australia have worked out "to mould a just sentence for the conduct of which the prisoner has been guilty". Whether the trial judge imposes consecutive or concurrent sentences for a number of offences not all of which are "serious offences", the operation of s.20A is bound to cause problems. If a head sentence is imposed both for a "serious offence" and to give effect to a "multi-faceted course of criminal conduct", the head sentence will be longer than if the "serious offence" stood alone. To apply the terms of s.20A(2) to a head sentence based on a course of criminal conduct which includes offences which are not "serious offences" is to go beyond the legislative purpose. Non-parole periods for offences not within the scope of s.20A are to be dealt with in accordance with general principles and not by the bottom line rule established by s.20A. Moreover, in most, if not all, cases the automatic imposition of s.20A to a head sentence based on a course of conduct involving both "serious" and non-serious offences must result in an injustice to the prisoner since it is unlikely that the judge would specify a non-parole period equivalent to three-quarters of the sentence in respect of offences which are not serious offences within the meaning of s.20A. If, on the other hand, the sentencing judge decides, because of the operation of s.20A, to impose consecutive sentences even though only one course of criminal conduct is involved, the totality principle requires that the total length of the sentences must not exceed what is appropriate for the course of criminality. This will usually mean that the sentence for the "serious offence" will be lower than if it stood alone. Even when, in accordance with general principle, consecutive sentences are required for independent acts of criminality, the need to ensure that there is "no overlapping of the factors brought into account in determining the length of each sentence" will often mean that the sentence for a "serious offence" is lower than would be imposed if the "serious offence" stood alone. Hence, as the result of the operation of s.20A(2) the imposition of a concurrent as opposed to a consecutive sentence may result in a longer non-parole period for a "serious offence".

18. Moreover, to impose consecutive sentences leads to the anomaly that the prisoner who commits a series of offences may receive a lighter sentence and non-parole period for a "serious offence" than a prisoner who commits a comparable "serious offence" but no other offences. On the other hand the imposition of concurrent sentences leads to the anomaly that the prisoner who has committed other offences as well as a "serious offence" will usually receive a longer sentence and therefore a longer non-parole period for the "serious offence" than the prisoner who has committed only a comparable "serious offence". If all offences were subject to s.20A(2), this would not matter. But s.20A(2) selects only certain offences for extra punitive treatment. Whether consecutive or concurrent sentences are imposed in cases involving both a "serious offence" and non-serious offences, therefore, is a matter of considerable importance. The automatic operation of s.20A(2) in such cases is bound to lead to anomalies and injustices. In many cases the combination of "serious" and other offences will justify the specification of a shorter non-parole period than that required by s.20A. Each case must depend on its own circumstances. But where "serious" and non-serious offences are the subject of the sentencing, ordinarily the better course would seem to be to impose sentences in accordance with the totality principles and, where necessary, adjust the non-parole period under s.21(3) after taking into account the terms of s.20A. It will frequently be necessary to exercise the power under s.21(3) where concurrent sentences are imposed and the head sentence reflects punishment for conduct involved in non-serious as well as "serious" offences.

19. In the present case the Court of Criminal Appeal stated that the offence of armed robbery with wounding "alone" would have warranted a head sentence of 12 years penal servitude. The imposition of the additional three years imprisonment in respect of that charge while leaving the other sentences to be served concurrently together with the remark that "the totality of the offences is such that the head sentence imposed was manifestly inadequate and that this Court should fix a head sentence of fifteen years" indicate that the Court of Criminal Appeal saw the 15 offences as one "multi-faceted course of criminal conduct". Upon that hypothesis the proper exercise of the discretion conferred by s.21(3) required the Court to have regard to the important factor that the head sentence of 15 years took into account criminal conduct which, if punished separately, was not subject to the provisions of s.20A. As we have already pointed out, 13 of the 15 offences were not within the terms of s.20A. Whether or not the discretion under s.21(3) must always be exercised in respect of a sentence involving offences which are and offences which are not subject to s.20A, we think that, in the circumstances of this case where 13 out of the 15 offences fell outside the scope of the "punitive" provisions of s.20A, the Court of Criminal Appeal was bound to exercise the power conferred on it by s.21(3) and specify a shorter period than that required by s.20A. In specifying that period the Court was entitled to take into account the terms of s.20A as it applied to the two offences within its scope as well as all relevant subjective and objective factors. Since the Court of Criminal Appeal refused to exercise its powers under s.21(3), it fell into error.

20. However, the question arises whether the case is a proper one for special leave to appeal. It is no part of the function of this Court to act as a court of appeal from the decisions of State Courts of Criminal Appeal. Historically, the Court has been particularly circumspect in interfering with sentence matters: Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606, per Mason J. at p 611. In Lowe, Gibbs C.J. said (at pp 608-609) that, at least speaking generally, "to warrant the grant of special leave to appeal against a sentence when there has been no want or excess of jurisdiction, it must appear that the case involves some question of law or principle of general importance or that there has been a gross violation of the principles which ought to govern discretion in imposing sentence". Moreover, until the present point was raised by a member of the Court during argument, it had not occurred to those representing the accused. As a result this Court is denied the advantage of the opinions on the point of the judges in the Court of Criminal Appeal. However, the failure to raise the point in the Court of Criminal Appeal is not necessarily fatal to it being raised on a special leave application: cf. Pantorno v. The Queen [1989] HCA 18; (1989) 63 ALJR 317, at pp 324-325; [1989] HCA 18; 84 ALR 390, at pp 402-403.

21. Against the matters which point against the grant of special leave must be weighed three other matters. First, the provisions of s.20A are rightly seen as punitive in operation: cf. Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623, at p 628. Hence, the applicant has been punished in respect of matters which the legislature did not intend should be the subject of punishment under s.20A. Secondly, the sentence of 15 years, after taking account of all or most of the subjective factors mentioned by the trial judge must be near the top of the sentencing range. A non-parole period of 11 years and 3 months in respect of that sentence for a man of 21 whom the trial judge thought showed genuine remorse and contrition and had better than average prospects of rehabilitation is very heavy. Thirdly, the effect of ss.20A and 21(3) in cases where more than a "serious offence" is involved is a matter of considerable importance.

22. In Lowe, Mason J., dissenting, agreed with the observations of Gibbs C.J. as to the circumstances in which this Court will ordinarily grant special leave to appeal against sentence. But he warned (at p 611) "that the discretion to grant or refuse leave cannot be reduced to a formula or to rigid categories and that the Court must always make allowance for the exceptional case of manifest injustice or manifest public importance which may not readily fall into one of the categories already mentioned". We think that the present case does involve a principle of general importance. But in any event, we think that the refusal of the Court of Criminal Appeal to exercise the discretion conferred by s.21(3) makes the case one of manifest injustice. The applicant is being punished by the specification of a non-parole period derived from the application of a legislative formula to a sentence which is based on conduct that the legislature intended should not be the subject of that formula.
Orders

23. In our opinion, special leave to appeal should be granted. The appeal should be allowed. Since the Court of Criminal Appeal may now wish to take a different approach to the question of sentencing, both the sentence of 15 years and the non-parole period of 11 years and 3 months should be set aside. The matter should be remitted to the Court of Criminal Appeal.

24. One further matter should be noted. Our view of the effect of s.21(3) of the Probation and Parole Act is a minority view. Accordingly, it is desirable that we observe that, but for the view we have taken of s.21(3), we would express our concurrence with the view of Deane J, which view, as his Honour points out, renders it necessary that the Court of Criminal Appeal, in reconsidering the question whether the case comes within s.21(3), take account of all the circumstances, including the matters referred to in the penultimate paragraph of the judgment of Brennan and Dawson JJ.

25. The applicant must remain in custody pending the determination of the matter by the Court of Criminal Appeal.

ORDER

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of New South Wales allowing the appeal to that Court and quashing the sentence imposed by the sentencing judge.

Quash the sentence imposed by the Court of Criminal Appeal of New South Wales.

Remit the matter to the Court of Criminal Appeal of New South Wales for determination in accordance with the judgment of this Court.

Order that the applicant remain in custody serving the sentence imposed by the sentencing judge pending the making of further order by the Court of Criminal Appeal of New South Wales.