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PostPosted: Mon May 10, 2004 12:33 pm ... +ingrassia

Ingrassia v The Queen S59/1997 (19 May 1998)


Office of the Registry

Sydney No S59 of 1997

B e t w e e n -






Application for special leave to appeal





Copyright in the High Court of Australia

MR P. KINTOMINAS: May it please your Honours, I appear for the applicant in this matter with my learned friends, MR R.K.M. RASMUSSEN, and MR S.R. COLEMAN. (instructed by Carroll & Knudsen)

MR G.S. HOSKING, SC: May it please the Court, I appear for the respondent with my learned friend, MR A.M. BLACKMORE. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Kintominas.

MR KINTOMINAS: May it please your Honours. The applicant contends that on the proper construction of section 556A of the Crimes Act of New South Wales, that a sentencing judge would have the power to place the offender under a recognisance, a condition of which would be to require him to make a payment of money to the Crown.

There are no other parallels in any of the other States of Australia that are relevant to this application, save the Australian Capital Territory. The other States have significantly other provisions where either the argument that I am putting forward is already specifically catered for in legislation, or the terms of it are such that no argument could possibly be mounted in any event.

The argument depends, we say, upon taking notice of certain parts of the section, and they are as follows: the section provides that where the Court has regard to an enumerated list of matters, which is very wide, and ends up with:

or to any other matter which the court thinks it proper to consider -

if the Court then comes to the following conclusion that:

it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to a conviction -

can do one of two things, and relevantly, for our argument, it can discharge "the offender conditionally on his entering into a recognisance".

HAYNE J: Why is the requirement to pay money to the Crown not the infliction of punishment, or more than nominal punishment?

MR KINTOMINAS: Your Honours, there is a number of arguments that we put forward. Firstly, the critical part of that section is listed with a number of "ors", it is in the disjunctive.

HAYNE J: But the relevant conclusion the Court must reach is that:

it is inexpedient to inflict any punishment, or any more than nominal punishment, or that it is expedient -

you say -

to release the offender on probation -

which is not this case, is it?

MR KINTOMINAS: Yes, it is.

HAYNE J: Release on probation?


HAYNE J: It would be a probation order, would it, to release him on a recognisance?

MR KINTOMINAS: Yes. That, we say, is what "release on probation" means.

HAYNE J: I must confess, it may be attributable to my origins south of the Murray, but a release on a probation order would, to me, convey something very different. You would fall under the hands of the probation service; be required to report; be subject to supervision conditions, and heaven knows what all else, but as I say, bear in mind my origins.

McHUGH J: I think if my brother, Hayne, had had the good fortune to have resided in Sydney he would still hold the same view.

HAYNE J: No, he would have been much less fortunate.

MR KINTOMINAS: Your Honours, the history of the section may have something to do with it because it was taken from an imperial statute. Parts of it were kept, parts of it were not, and then parts of it were later amended. But, it is my submission that if you are going to release him on probation the way to do it would be to put him on a recognisance. It would be part and parcel of putting him on a recognisance because there would be no other way one would have thought of supervising him by a probation officer or anything of the kind.

But, if your Honours are not attracted to that argument, the second argument is this: if we ask what is the difference between not convicting somebody or convicting him and fining him $50, the difference is not the $50 fine, the difference is the conviction. A conviction in itself, or the lack of a conviction, can be the most significant aspect of anything that has to do with the sentence. The consequences of a conviction in many circumstances will far outweigh and completely submerge any consideration of a fine of $50 or $100 or even a larger amount. It is common, as your Honours would know, that when people seek employment they are often asked to disclose whether or not they have a criminal record, or whether or not they have any criminal convictions. Magistrates often, in this State, advise somebody whom they have given the benefits of section 556A, they advise him that he is at liberty and, with perfect truth, can answer "I have no criminal record".

I understand it to be the practice, or at least to be the practice that should occur, that when the police are asked for criminal records by outside bodies to the extent that they do supply them, that they do not supply any details of matters dealt with under section 556A of the Crimes Act. It can therefore make a very significant difference as to whether or not somebody is convicted. We say that in certain circumstances, particularly if you have a look at the particular circumstances of an offender, even if he was fined, as long as he was not convicted it would be a fairly nominal punishment. There is nothing in the interpretation of the section which, in our submission, bars such a course taking place.

I was going to take your Honours very briefly to the ACT legislation because the point that I was going to make - but before I do that, it is of some significance that section (1A) says that:

A recognizance mentioned in subsection (1) shall be conditioned upon and subject to such terms and conditions as the court shall order.

That, we say, is a very, very wide provision. Subsection (1A) was inserted into the Act by the Askin Government in 1974, and I have extracted on page 29 of the application book the remarks of the Minister for Justice, Mr Maddison, when he introduced the Bill to the House. He said on that occasion:

"The opportunities provided by section 556A of the Crimes Act for dealing sensibly with the minor offender of previous good character have been much availed of by magistrates. The judges have, on occasion, regretted that the provisions of the section are not available to them, and the bill makes the section apply in all courts. It also greatly widens the discretion of the court as to the circumstances in which it can give the benefit of the section, and allows the court to impose on the offender any of the conditions it might impose when granting a bond."

Undoubtedly, one of the first things to look at in this situation is, can it be really said to be a fine. To borrow the Churcillian terminology, it is a bit of terminological inexactitude to call it a fine. If the power exists, one would, for example, see that it would be possible for the Court to make provision in an appropriate case for an amount of money which might actually exceed the amount of the fine which would be specified in the section of the Crimes Act under which the offence fell. In any event, it is not a fine in the sense that it would be compulsorily extracted or levied from the offender's property. If he did not pay it you would not have the position where the sheriff would be sent out to levy execution or something of that kind.

McHUGH J: But the payment of the fine would be imposed as the result of an order of the court, or the payment of the sum of money, and that seems, clearly enough, to be a punishment, and that is the real difficulty that you have in this case. It is quite contrary to common law principle that a person who has not been convicted of an offence should be punished by an order of a court. If a court requires a person to do something upon condition it pays a sum of money, then, as the Court of Criminal Appeal said, that person is being punished contrary to the terms of the section.

MR KINTOMINAS: Your Honours, we say the answer to that is this, that if you had spoken even to a 19th century lawyer about the concept of not recording a conviction, or when the offence was proved, or if you had spoken to a 19th century lawyer about the offence being proved but there being no conviction whether reported or not, the 19th century lawyer would not have understood you, it would have been as if you had come down from a spaceship on Mars. All this legislation, particularly section 556A, in itself, is such a radical departure from the common law in terms of what precisely now is a conviction, that those common law principles, we say, do not necessarily apply. The section, itself, has caused a revolution in the common law principles, and it is somewhat anachronistic to talk about the principle that you cannot be punished without a conviction. In any event, one would also have to note this, that it is a punishment which would really require the consent of the offender.

McHUGH J: It does not really require the consent of the offender. He must perform a particular act, but, as a condition of him obtaining the order under 556A, he must do it, otherwise he does not get it. So, in substance, it is the court that is requiring him to do it. Your argument is opposed, is it not, to authorities of England and in Canada, concerning corresponding legislation, where they have held that the legislation does not permit the combination of a conditional discharge and punishment in the form of a fine?

MR KINTOMINAS: Your Honours, the difficulty with all these other authorities that are cited by the Chief Justice are as follows: firstly, in respect of the English provisions, there is only one condition that those sections contemplate, that is the be of good behaviour. There is no provision in the English legislation under which those authorities were given. There is nothing remotely resembling subsection (1A), that is:

A recognizance mentioned in subsection (1) shall be conditioned upon and subject to such terms and conditions as the court shall order.

Without that, then there is no scope at all to argue in the English provisions at all that you could make any other order. We say, therefore, that authorities which depend upon sections which do not have subsection (1A) are not finally determinative of the issue. The matter is not, in our submission, so entirely free from doubt that your Honours ought to refuse to give special leave. I would ask your Honours to take into account that this matter - if what we contend for is correct, this matter would have a very significant effect on the administration of justice in this State and the ACT.

There are two great philosophical divides when it comes to sentencing. The first is whether or not to impose a conviction, and the second is, of course, whether to send somebody to gaol. Now, every day, one suspects that there are perhaps lenient sentences, who give somebody a 556A, but are somewhat troubled about it, and there may be not so lenient sentencers who impose a conviction and, again, are not terribly happy about it either. If there was this middle course, it would allow greater flexibility.

It is also, in my submission, and not without some significance, that the resolution of this dispute was allowed to remain virtually unresolved in New South Wales for a period of 20 years. The issue came before the Court of Criminal Appeal in 1984. That was a Bench consisting of his Honour the then Chief Justice Sir Laurence Street, Justices Kirby and Cantor, and that was a case where they decided that they did not have to deal with the issue, whether that power existed, and it was left for another day.

I cannot put any quantified research before the Court, but certainly all the people I have spoken to have been able to give me various instances where such a course was taken, either by a District Court judge, or by a magistrate, on numerous occasions, over that period of 20 years. That does not mean to say the Crowns who were involved in that exercise and did not appeal or did not take it up to the Court of Criminal Appeal necessarily - you can take the view that they were correct, but it does mean that the Crown, for a very long time, collectively, took the view that whatever the precise merits of this was, it was a fairly useful sentencing tool.

The Court of Criminal Appeal has given a judgment, and there the matter will rest unless this Court interferes. It is, in my submission, undeniably a matter of public importance because it would affect - one would have thought it would not be an exaggeration to say that in every day in the courts of New South Wales that course would be availed of by magistrates and by judges if the Court reversed the decision. So, it has to be a matter of public importance. I appreciate that if your Honours say that there is no point in granting leave because the argument is obviously right, I could not cavil with that, but I would urge your Honours not to take the view. The authorities that have been collected depend upon other statutory regimes which can be, at least in theory, distinguished.

If one has to fall back on to an alleged common law principle that you cannot be punished without a conviction - and when I say "alleged", I conceived that there was such a principle at common law - we say that it is now a meaningless principle. When I say "a meaningless principle", it is a principle which has to be radically rethought and redrafted - - -

McHUGH J: But why should that be so? The legislation is enacted against the background of that principle. The law should, so far as possible, be a seamless web. It is not, of course, but that does not mean that we should tear it apart and treat its pieces in isolation from each other. This is all part of an historical development. This section makes the modification to a common law position, and allows courts to make orders in respect of a person even though the record does not record a conviction against that person. But why should not common law principles guide the construction of the section?

MR KINTOMINAS: Because, your Honour, the common law principles have been displaced to such a material extent that it is no longer safe to take the view that the legislature did not intend to alter the common law that far. It is very difficult to get into the minds of the legislatures, but - - -

McHUGH J: We should not even try if you are talking about the particular mental states of legislators. By a legal fiction we impugn an intention to the Parliament, or the legislature as an institution, but we do not seek to ascertain the precise mental states when you look at the words they have enacted. We look at them against the background of history, against the background of the facts that this legislature is taken to have had in mind in enacting - - -

MR KINTOMINAS: I accept that, of course, your Honour. But, I would still be pressing the point that it is not free from doubt. Even if one takes the question that the Chief Justice referred to about there being no guest legislation in prisons, it overlooks the fact that, for example, somebody could be refused bail deliberately so that he might spend some time in the cells, and then taking that into account, given the benefits of a recognisance under the section.

Ultimately, your Honours, the point that I would like to finish on is that the other matter that never seemed to have been argued in any of the cases that the Chief Justice refers to is the precise point that this is not a fine. This is not really a fine, but a donation to the revenue.

McHUGH J: Yes.

MR KINTOMINAS: I note my time is up.

McHUGH J: Thank you, Mr Kintominas. We need not hear from you, Mr Hosking.

The decision of the Court of Criminal Appeal is not, in our opinion, attended by doubt. Special leave to appeal is therefore refused.


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