Dimozantos v R [1992] HCA 49; (1992) 174 CLR 504; (1993) 63 A Crim R 132 (7 October 1992)

HIGH COURT OF AUSTRALIA

DIMOZANTOS v.THE QUEEN [1992] HCA 49; (1992) 174 CLR 504
F.C. 92/036
[1992] HCA 49; (1993) 63 A Crim R 132

Criminal Law (Vict.)

High Court of Australiaz
Mason CJ(1), Brennan(1), Dawson(1), Gaudron(1) and McHugh(1) JJ

CATCHWORDS

Criminal Law (Vict.) - Incitement to commit offence - Sentence - Maximum sentence related to penalty for relevant offence - Incitement to murder - Sentence for murder life imprisonment or such other term fixed by court - Whether maximum penalty for murder "prescribed by law" - Crimes Act 1958 (Vict.), s. 321I(1).

HEARING

Adelaide, 1992, August 31; Canberra, October 7. 7:10:1992

DECISION

MASON C.J., BRENNAN, DAWSON, GAUDRON AND McHUGH JJ. The appellant was convicted of incitement to murder and sentenced to imprisonment for 12 years with a direction that he serve a minimum of 10 years before becoming eligible for parole. Section 321L of the Crimes Act 1958 (Vict.), inserted by the Crimes (Conspiracy and Incitement) Act 1984 (Vict.), abolished the common law crime of incitement. In its place, s.321G created a statutory offence of incitement. Section 321I(1) prescribed the penalty for the statutory offence in the following terms:
" Where a person is convicted under section 321G of incitement
to commit an offence or offences against a law or laws in force
in Victoria -
(a) if the penalty for the relevant offence is fixed by law,
the person shall be liable to a penalty not exceeding the
penalty for the relevant offence;
(b) if the relevant offence, or any of the relevan offences,
is an offence for which the penalty is imprisonment for a term
the maximum length of which is not prescribed by law, the
person shall be liable to imprisonment for a term of not more
than fifteen years;
(c) subject to paragraphs (a), (b) and (d), if the relevant
offence, or any of the relevant offences is an offence for
which a maximum penalty is prescribed by law, the person shall
be liable to a penalty not exceeding that maximum penalty or
the accumulated maximum penalties, as the case may be; or
(d) ..."
2. The learned sentencing judge ruled that par.(c) of s.321I(1) was the provision applicable to the offence of incitement to commit murder. The learned sentencing judge sentenced the appellant on that basis and the Court of Criminal Appeal of Victoria confirmed his Honour's ruling and dismissed the appellant's application for leave to appeal against the sentence his Honour imposed. Special leave to appeal to this Court was granted to enable the appellant to canvass the correctness of that ruling.

3. The problem arises by reason of the amendment to s.3 of the Crimes Act prescribing the penalty for murder. When s.321I was enacted, s.3 read as follows:

" Notwithstanding any rule of law to the contrary whosoever is
convicted of treason or murder shall be liable to imprisonment
for the term of his natural life."

The penalty for murder being fixed by s.3, par.(a) of s.321I(1) prescribed life imprisonment as the maximum penalty for the offence of incitement to commit murder. Then, in 1986, s.3 was amended ((1) by S.8 of the Crimes (Amendment) Act 1986 (Vict.)) to read:

"Notwithstanding any rule of law to the contrary, a person
convicted of murder is liable to imprisonment -
(a) for the term of his or her natural life; or
(b) for such other term as is fixed by the court -
as the court determines."

4. Paragraph (a) of s.321I(1) no longer applies to the offence of incitement to commit murder. Indeed, there may no longer be any offence to which that paragraph applies. Paragraph (a) is concerned with an offence the penalty for which does not depend on the discretion of the sentencing court: the penalty to be suffered on conviction for such an offence is a penalty "fixed by law", not fixed by the court. As s.3 no longer "fixes" the penalty for murder, the penalty for incitement to commit murder is now prescribed by par.(b) or par.(c). The question is: which has become the applicable paragraph?

5. Paragraph (b) applies when the penalty prescribed by law for the relevant offence is a term of imprisonment which does not have a maximum length. Paragraph (c) is a catch-all provision relating to cases where "a maximum penalty is prescribed by law", irrespective of whether that penalty is a term of imprisonment or not. Although par.(c) operates subject to pars (a) and (b), the three paragraphs must be construed as complementary. So construed, par.(a) applies when the penalty for the relevant offence is fixed by law; pars (b) and (c) relate to cases where the court has a discretion in sentencing. Paragraph (b) applies when the penalty for the relevant offence is (i) a term of imprisonment (ii) the maximum length of which is not prescribed by law; par.(c) applies when the penalty for the relevant offence is (i) not a term of imprisonment, or (ii) is a term of imprisonment the maximum length of which is prescribed by law. Logically, the only case not covered by s.321I(1) is a case where the law prescribes a penalty for the relevant offence other than a term of imprisonment and does not prescribe a maximum. Such a case is hypothetical.

6. Construing s.321I(1) in this way, the question in this case is whether s.3 of the Crimes Act prescribes, as the penalty for murder, a term of imprisonment of "maximum length". The appellant submits that s.3 does not prescribe a "maximum length" because, at the time of sentencing a person to imprisonment for the term of his or her natural life, the length of the term is uncertain, and because the concept of "maximum" implies that the sentencing discretion could otherwise be exercised to impose a longer term. The latter argument has no substance. A law which prescribes imprisonment for the term of the prisoner's natural life as a discretionary penalty prescribes a "maximum" in the sense that the prisoner's natural life is the upper limit of the sentencing range and that is so notwithstanding the fact that no higher limit is practicable.

7. There is more support for the former argument. The several paragraphs of s.321I(1) fasten upon the laws which prescribe penalties for relevant offences; they fasten on the scope of the available sentencing discretions. When the phrase "maximum length" is used in such a context, it seems to import a length which is known when the discretion is to be exercised, not a length which is unknown and will remain unknown until the natural life expires. The better view of s.321I(1) is that "maximum length" referred to in par.(b) describes a term of imprisonment fixed or calculable in years, months or days; it does not describe a term of indeterminate duration such as the term of a prisoner's natural life ((2) see Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458 at pp 470, 477; Reg. v. Schultz (1976) VR 325, at p 329)). It follows that par.(b), not par.(c), was the paragraph applicable to the sentencing of the appellant and that the maximum term of imprisonment to which he was liable was not the term of his natural life but a term of 15 years imprisonment.

8. The respondent submitted that that result is contrary to the legislature's intention that the maximum penalties for the inchoate offences of incitement should be the same as the corresponding substantive offences. No doubt that was the anticipation of Parliament when the Crimes (Conspiracy and Incitement) Act was passed in 1984 ((3) see Legislative Council Debates (Victoria, 21 March 1984), pp 1934, 2012; Legislative Assembly Debates (Victoria, 28 March 1984), p 3546) and that anticipation was fulfilled having regard to the penalties then prescribed for murder and other crimes of greatest gravity, namely, treason and piracy. But, when the Crimes (Amendment) Act 1986 created a discretion in the court sentencing for murder, treason or piracy, par.(a) of s.321I no longer had any operation and the application of s.321I(1) to offences of incitement to commit murder, treason or piracy was left to depend on par.(b) or par.(c). That was an apparently unforeseen consequence of the 1986 amending Act. It is impossible to invoke an antecedent legislative intention to assist in the construction of pars (b) and (c) which were not then intended to apply to incitement to commit murder, treason or piracy.

9. The ruling that the appellant, at the time when he was sentenced, was liable to life imprisonment for incitement to commit murder was erroneous. The sentencing discretion thus miscarried. The Court of Criminal Appeal ought to have set the sentence aside and either resentenced the appellant or remitted the matter for resentencing. The Court has been informed that the law has been changed since the Court of Criminal Appeal made its order, but that alteration cannot affect the appellant's legal right to have his original sentence quashed.

10. The order of this Court should be that the appeal be allowed, the order of the Court of Criminal Appeal dismissing the appellant's application for leave to appeal against sentence be set aside and, in lieu thereof, the appellant be granted leave to appeal against sentence and his appeal against sentence be allowed, the sentence be quashed and the appellant be remanded in custody to be sentenced according to law.

ORDER

Appeal allowed.

Set aside the order of the Court of Criminal Appeal dismissing the appellant's application for leave to appeal against sentence. In lieu thereof, order that the appellant be granted leave to appeal against sentence, the appeal be allowed, the sentence be quashed and the appellant be remanded in custody to be sentenced according to law.