Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 (17 August 1977)

CATCHWORDS

HEARING

DECISION

2. Section 51A (1) of the Justices Act is in the following terms:

"51A. (1) A person charged before one, or more than one,

Justice with an indictable offence not punishable with penal

servitude for life may, at any stage of the proceedings, plead

guilty to the charge and thereupon the following provisions

of this section have effect: -

(a) The Justice or Justices may accept or reject the plea.

The rejection of a plea of guilty at any stage of the

proceedings does not prevent the accused from

pleading guilty under this section at a later stage of the

proceedings and the Justice or Justices have power to

accept or reject the plea at that later stage;

(b) Where the Justice or Justices reject the plea the

proceedings before the Justice or Justices shall be

continued as if the plea had not been made;

(c) Where the Justice or Justices accept the plea, the

Justice or Justices shall thereupon commit the accused

to such sittings of the Supreme Court or such Court of

Quarter Sessions as the Justice or Justices may direct

to be dealt with as hereinafter in this section

provided;

(d) The Judge of the Supreme Court or the Chairman of

Quarter Sessions, as the case may be, before whom the

accused is brought in accordance with this section -

(i) shall, if it appears to him from the information or

evidence given to or before him that the facts in

respect of which the accused was charged before

the Justice or Justices do not support the charge

to which the accused pleaded guilty or if the

accused or counsel for the Crown requests that an

order be made under this subparagraph, and may

if for any other reason the Judge or Chairman, as

the case may be, sees fit so to do, order that the

proceedings before the Justice or Justices at which

the accused pleaded guilty be continued at a time

and place to be specified in the order;

(ii) unless an order is made under subparagraph (i) of

this paragraph, has the same powers of

sentencing or otherwise dealing with the accused, and of

finally disposing of the charge and of all

incidental matters as he would have had if the accused on

arraignment at any sittings of the Court had

pleaded guilty to the offence charged on an

indictment filed by the Attorney-General."

3. The applicant was brought before the District Court, Sydney, in its criminal jurisdiction (Judge Goran) on 20th September 1974. He adhered to his plea of guilty to each of the charges. The learned judge heard evidence of a very long and persistent record of criminal behaviour on the part of the applicant, the evidence of the applicant himself and that of his wife. (at p295)

4. Having considered the material before him, his Honour, addressing the applicant, amongst other things, said this:

"I accept your evidence, Iaccept the fact that you have had

a change of heart, and I accept the evidence of your wife. I

was once told by an officer of the Salvation Army who helped

judges and magistrates in court ... that if there ever is an

age when a man who has seen a lot of gaol is going to

change, it is about the age of forty - that is give or take a year

or two either way - it is about that age, and he impressed me,

and I tried it out as a theory and I found from time to time it

worked.

You are at the crossroads; you have either to be declared

or sent to gaol for a long time, or else you have to be given

your chance now, and I prefer, of course, to give you a

chance, and I am going to do it. I am going to do it in this

way, a way which is familiar, as I say, to many people in my

court.

I won't deal with you today, I will deal with you in twelve

months time. During that twelve months you are going to

be on a trial period to see what you can do to keep out of

crime, and you are going to be under the supervision of the

Probation and Parole, and I am going to ask them to give me

a report about you each three months to see how you are

going, and I am going to ask them to help you. That means

of course that you will be at large during that time. If you

can satisfy me - I won't give you any promises - but if you

can satisfy me at the end of that time that I should not send

you to gaol, that you have made good, then I won't sent you

to gaol at all."

"The order I will make is that I will remand you for

sentence to 19th September next year to appear here, and I

will suffer you to go at large providing you enter into a bond

today; we will fix the amount, yourself in $200, to appear on

that day for sentence. Yor are to be of good behaviour in the

meantime, that is one condition. The other condition is that

you will place yourself under the supervision of the Probation

and Parole Service and obey such reasonable directions as an

officer of that service may give you from time to time, and I

have called for reports every three months. The period of

remand may be broken at the instance of either yourself or

the parole officer." (at p296)

5. The applicant, on that day, did enter into a recognizance in the sum of $200 conditioned on his being of good behaviour during the period until 19th September 1975 and to appear at the Court at Sydney within that period if called upon so to do to receive sentence and that he placed himself under the supervision of the Probation and Parole Service obeying all the reasonable directions of the officers of that Service. (at p296)

6. The recognizance recited that the applicant had pleaded guilty before the stipendiary magistrate to the three charges and that thereafter at a sitting of the District Court at Sydney he was ordered to enter into the recognizance. (at p296)

7. Some discussion took place during the hearing of this application as to the form of the recognizance. It was observed, quite correctly, that in truth the applicant had not been ordered to enter into the recognizance but that he had been set at large contingently on his entering into a recognizance in the specified terms. However, nothing, in my opinion, turns on the erroneous inclusion in the recognizance of the recital that the applicant was ordered to enter into it. (at p297)

8. Having entered into the recognizance, the applicant was set at large and up till the time at which he was returned into custody, as I shall hereafter mention, he observed the conditions of the recognizance. After a period of three months, a parole officer reported to the District Court judge as follows:

"Since being released on a recognizance on 20th September

1974 Griffiths has continued regular contact with this Service.

He has not missed any reporting appointments. Griffiths

has maintained regular employment with the one employer

for the whole of the period.

A number of home visits have been made and a very stable

happy home environment has been observed. Griffiths has

been most co-operative with this Service and it is felt that his

performance thus far has been above average." (at p297)

9. However, the Attorney-General for the State of New South Wales appealed to the Court of Criminal Appeal,

"... against a certain sentence pronounced by His Honour

Judge Goran, a Judge of the District Court of New South

Wales, in the District Court (Criminal Jurisdiction) at Sydney

on the twentieth day of September in the year one thousand

nine hundred and seventy-four when one KEVIN IDRIS

GRIFFITHS appeared for sentence on charges of breaking and

entering a shop and stealing therein, breaking and entering a

store and stealing therein, and being an accessory after the

fact to breaking and entering a shop and stealing therin,..."

"... and for the said offences sentence was deferred upon

him entering into a recognizance himself in the sum of $200

to be of good behaviour and to appear to receive sentence on

the nineteenth day of September in the year one thousand

nine hundred and seventy-five, or earlier if called upon to do

so in respect of any breach within the said period ..."

10. The Court of Criminal Appeal overruled submissions on behalf of the applicant, the respondent to the Attorney-General's appeal, (i) that the applicant had not been convicted, (ii) that, in any case, he had not been sentenced and (iii) that, consequently, on either ground, the Attorney-General had no right of appeal. The Court held that the applicant had been sentenced and that the Court had jurisdiction to entertain the Attorney-General's appeal. The Court said:

"The deferring of sentence pursuant to s.558" (i.e., of the

Crimes Act, a section to which I shall later refer) "is clearly

within the appellate jurisdiction of this Court and there

seems to be no reason either in principle or in policy to deny

the appellate authority of this Court where a course

achieving and intended to achieve substantially the same

result, is adopted in consequence either of conviction after

trial or conviction on a plea of guilty."

"It would be regrettable to recognise that a course could be

followed immune from appellate authority whereby a

convicted person could find himself for a lengthy period, in

this instance, for example, twelve months, uncertain as to

what his punishment is going to be. Not only would he be

uncertain, but, if the argument for the respondent were well

founded, there would be no remedy by way of appeal to this

court. There is accordingly every justification both in point

of textual construction and in point of policy for recognising

that what took place here amounts to a sentence within the

terms of s. 5D and that it is open to review by this court upon

appeal by the Attorney-General, equally as it is open to

review upon an appeal by the criminal concerned."

"In our view this is not a permissible sentencing procedure.

It cannot be supported as a mere exercise of the undoubted

power of adjournment. Such a power is ancillary and is

exercisable, inter alia, if the judge wishes to deliberate or to

obtain further information such as a psychiatric report. But

the power of adjournment is not properly exercised if the

adjournment is ordered as an integral part of the sentencing

process in the way in which it is involved in the practice

under consideration." (at p298)

11. The Court of Criminal Appeal then felt itself at liberty itself to sentence the applicant. It imposed a total sentence of some six years' imprisonment with a non-parole period to expire three years from the date on which the applicant was taken into custody. In pursuance of this sentence the applicant was placed in gaol to serve the sentence imposed on him. (at p298)

12. The applicant now seeks the special leave of this Court to appeal against the orders of the Court of Criminal Appeal. Notice in that regard was filed some twenty-one months after the date of the decision of that Court. This delay, however, has, in my opinion, been satisfactorily explained and I would certainly grant any necessary extension of time to enable the Court to consider the applicant's application for special leave. (at p299)

13. The applicant has been in gaol for more than two years, serving the sentence imposed upon him. We were informed that the non-parole period fixed by the Court of Criminal Appeal has not yet expired. As I have reached the conclusion, for reasons which I am about to express, that the Court of Criminal Appeal was in error in entertaining and in allowing the Crown's appeal and that the learned trial judge was not in error in taking the course which he did, the applicant is now in a very sorry state indeed. From the parole officer's report which I have set out and which was before the Court of Criminal Appeal, it seems that the applicant had decided to abandon a life of crime and was making an apparently successful effort to rehabilitate himself. From that promising situation he was taken as a result of the decision of the Court of Criminal Appeal and plunged into association with those whose company he could not avoid in serving his gaol sentence. His task of self-rehabilitation will have been made more difficult. He could not be blamed if he felt disheartened. (at p299)

14. The applicant, in support of the application for special leave, poses four submissions. He first says he was not convicted of any of the three offences; that therefore a sentence could not have been imposed on him and that, consequently, there could be no right of appeal in the Attorney-General. (at p299)

15. Section 5D of the Criminal Appeal Act, 1912 (N.S.W.), as amended ("the Criminal Appeal Act") is in the following terms:

"The Attorney-General may appeal to the Court of

Criminal Appeal against any sentence pronounced by the Supreme

Court or any Court of quarter sessions ..."

16. It is manifest that the only right of appeal of the Attorney-General must be derived from the Criminal Appeal Act: the Court of Criminal Appeal has no other source of relevant jurisdiction. It is also manifest that it is only against a sentence that the Attorney-General may appeal. (at p299)

17. According to s. 2 of the Criminal Appeal Act:

"'Sentence' includes any order made by the court of trial on

conviction with reference to the person convicted, or his

property, and any recommendation or order for deportation

in the case of a person convicted; and the power of the

Court of Criminal Appeal to pass any sentence includes a

power to make any such order or recommendation." (at p299)

18. The applicant's second submission is that, in any case, even if there were a conviction, the judge did not sentence him. There was therefore no sentence against which the Attorney-General could appeal. (at p300)

19. The third submission is that there was no irregularity in what the trial judge did in the order which he made and that, in any case, there was no warrant for the Court of Criminal Appeal to interfere with the operation of his order. (at p300)

20. The fourth and last submission is that s. 5D of the Criminal Appeal Act does not give to the Court of Criminal Appeal upon the appeal of the Attorney-General the ability to substitute its own view of what is the proper sentence to be imposed merely because it may not agree with the sentence which the trial judge has imposed. In this respect the applicant challenges some of the remarks made in Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230 and submits that the Court of Criminal Appeal is in truth an appellate court which derives its ability to interfere with what has been done by a trial judge, even upon appeal by the Attorney-General, from the fact that there has been error on the part of, or departure from principle by, the trial judge in the making of the order which he in fact made. (at p300)

21. By an amendment of the Crimes Act in 1974 (No. 50 of 1974), the District Court in its Criminal Jurisdiction acquired the same powers as a magistrate alone formerly exercised under s. 556A of the Crimes Act. That section is in the following terms:

"556A. (1) Where any person is charged before any court

with an offence punishable by such court, and the court

thinks that the charge is proved, but is of opinion that,

having regard to the character, antecedents, age, health, or

mental condition of the person charged, or to the trivial

nature of the offence, or to the extenuating circumstances

under which the offence was committed, or to any other

matter which the court thinks it proper to consider, 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

conviction, make an order either -

(a) dismissing the charge; or

(b) discharging the offender conditionally on his entering

into a recognizance, with or without sureties, to be of

good behaviour and to appear for conviction and

sentence when called on at any time during such

period, not exceeding three years, as may be specified

in the order.

(1A) A recognizance mentioned in subsection (1) shall be

conditioned upon and subject to such terms and conditions as

the court shall order.

(2) Where an order is made under this section the order

shall, for the purpose of revesting or restoring stolen

property, and of enabling the court to make orders as to the

restitution or delivery of property to the owner, and as to the

payment of money upon or in connection with such

restitution or delivery, and for the purpose of the exercise of

any power conferred by section 437 (1) or section 554 (3) , have

the like effect as a conviction.

(3) Where under subsection (1) a charge is dismissed or an

offender is conditionally discharged, the person charged shall

have the same rights as to appeal on the ground that he was

not guilty of the offence charged as he would have had if

convicted of the offence."

"558. (1) A court before which a person comes to be

sentenced for any offence may if it thinks fit defer passing

sentence upon the person and order his release upon his

entering into a recognizance, with or without sureties, in such

amount as the Court directs, to be of good behaviour for such

period as the Court thinks proper and to come up for sentence

if called upon."

22. I mention these sections at this point because of two aspects of the applicant's submissions upon which I must now touch. It was said that because the powers given by s. 556A, which included the ability not to proceed to conviction of the proven offence, were available to the District Court judge, there could be no conviction even upon a verdict of guilty by a jury, unless the judge himself convicted the accused. It was also said that s. 558 was confirmatory of the relevant existing law. (at p301)

23. It is apparent that, in the mechanical amendment of s. 556A so as to extend the powers formerly exercisable only by a magistrate to be exercisable by "any court", insufficient attention has been paid to the very different situation which obtains in the course of a hearing before a magistrate and the course of a trial, whether before a District Court or before the Central Criminal Court. The magistrate, having found guilt, may choose to resort to s. 556A, in which case he does not proceed to convict. But if he decides to convict, as a rule he does so expressly by appropriate words. (at p301)

24. But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury's verdict at least on its first return. But, usually, that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused. (at p302)

25. However, the position where an accused has pleaded guilty is not so easily resolved. In this instance, quite clearly the trial judge has the ability to refuse to accept the plea. Consequently, it can scarcely be said that the making of such a plea is itself a conviction. As a rule, the trial judge's acceptance of such a plea is implicit in so far as he indicates, having heard the plea of guilty, that he will act upon it as, for example, by calling for the record from the gaol recorder or by some other act. Such acts indicate that he is proceeding on the footing that the accused is convicted. (at p302)

26. Although it has not been the practice hitherto to do so, it seems to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilizing s. 556A is in contemplation, that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction. (at p302)

27. This recital of the usual procedure at a trial by the Central Criminal Court or by the District Court in its criminal jurisdiction immediately highlights the difficulty of such courts using the powers given by s. 556A. But I am of opinion that the provisions of that section may be accommodated to that procedure by the following practice. It seems to me that a trial judge, who wishes to consider the exercise of the powers given by s. 556A where there is a verdict of the jury, should first direct that the verdict be recorded but that no conviction thereon be recorded until further order. The prisoner may then be remanded so that on the day to which he is remanded, the question of recording or not recording a conviction can be decided and a further order or a formal sentence pronounced, as the case may be. If, at that time, the judge decides to use the power given by s. 556A he should direct that no conviction upon the jury's verdict be recorded and then proceed to make his order under the section. This, of course, may seem anomalous in that it may well be said that, immediately on the return of the verdict, the conviction had occurred. Also the trial judge will not have decided at the time the verdict is returned what course he will take. But it seems to me that such a practice as I have outlined would satisfy the language of s. 556A as now amended for it can be said that the court has not proceeded to conviction. After all, it is for the court, and not for the jury, to convict the accused. Further the suggested practice really does no substantial violence to traditional concepts notwithstanding the current view of the consequences of the verdict. (at p303)

28. Where the plea is one of guilty which the judge accepts but wishes to consider the exercise of his powers under s. 556A, he can immediately indicate that he accepts the plea of guilty as proving the offence but that he remands the prisoner to consider what course he will take. On the prisoner's return, if the judge has decided to use s. 556A, he should indicate that no conviction is to be recorded and proceed to make the appropriate order. But if he decides not to act under the section, he should say that the prisoner is convicted and proceed to make an order either disposing of the consequences of the conviction or deferring the imposition of a sentence. (at p303)

29. I have made these few remarks, though they may not strictly be necessary for the disposal of this application, because the matter has been fully argued by the applicant and by the Crown and because the amendment to s. 556A could give rise to uncertainty for the future. A degree of formality in carrying out the practice I have outlined would assist to remove any ambiguity from the proceedings consequent upon verdict or upon a plea of guilty. I shall reserve what I wish to say about s. 558 until later. (at p303)

30. Meantime, I return to the procedure under s. 51A of the Justices Act. It is clear from the express provisions of that section that a Supreme Court judge or a District Court judge is not bound to act upon the plea of guilty which the person committed to the court by the justice has made to the charges preferred before the justice. Further, he is not bound to accept the plea of guilty which may be affirmed by that person when he appears before the court, be it the Central Criminal Court or the District Court. The terms of the section sufficiently establish that position. Thus, it would seem that before the judge can sentence a person committed to the court under s. 51A he must expressly or impliedly accept the plea of guilty. Before doing so, he may in an appropriate case take evidence as to the facts of the matter and, indeed, if the accused is willing in an appropriate case to hear his account of the matter. Though, as I will indicate, I do not think it is indispensable, I think it would be advisable for the judge who has decided to accept the plea of guilty to do so formally and, if he proposes to proceed to convict, to indicate by appropriate words that the accused is convicted. But he may wish to keep open the possibility of utilizing s. 556A. In that event, he should not convict the accused until he has decided not to give the accused the benefit of that section. Again, if the judge desires to keep open his powers under that section during a remand, he should indicate by express words that the question of proceeding to conviction is deferred. Though nothing of that kind occurred in this case, it is submitted on behalf of the applicant that the judge kept open for himself the power to exercise s. 556A and that therefore he must not be taken to have proceeded to conviction before making the order which I have recited. (at p304)

31. It is to my mind quite clear, however, that the judge in this case did not for a moment contemplate resort to the powers given him by s. 556A. It is apparent from the report he made to the Court of Criminal Appeal that he regarded the order which he did make as only properly to be made as a substitute for a gaol sentence: in other words, that the only alternative he felt open to him in this case was a gaol sentence. I would have no doubt that he did not intend to reserve for himself the power to resort to s. 556A. (at p304)

32. I am also clear that the judge did accept the plea of guilty in the sense that it not only established guilt but warranted the entry of a conviction. In my opinion, the judge did convict the applicant. Consequently, the first submission ought not to be accepted. The applicant, in my opinion, was convicted and, indeed, the order which the judge made was made on the basis that it was an order on conviction. (at p304)

33. I now proceed further to discuss what it was that the trial judge did. I have so far said he accepted the plea of guilty: he treated it as warranting the entry of conviction: he did not contemplate or reserve to himself the use of the powers given him by s. 556A as amended and he convicted the applicant. But did he sentence him? (at p304)

34. It is apparent that he did not order the applicant to enter in to a recognizance. It may be accepted that an order that the prisoner enter into a recognizance may amount to a sentence as defined where that order definitively disposes of the consequences of the conviction: cf. the use of s. 20 of the Crimes Act 1914 (Cth) and see Devine v. The Queen [1967] HCA 19; (1967) 119 CLR 506 . (at p304)

35. A discussion took place during the argument of this application as to the use of what I might call a "preventive bond" as under the Statute of 1360 and as to the use of compulsory bond instead of a gaol sentence. I do not regard it as necessary to deal with all the matters which have been discussed in these connexions. Suffice it to say that the trial judge did not purport to compel the entry into a recognizance as a means of "preventive justice" or as itself a sentence, in the sense of a definitive disposal of the consequence of the proven offence. What he did, it seems to me, was to decide that he would remand the applicant for sentence. It cannot be doubted that that is a power available to the trial judge and, for that matter, regularly exercised. The judge can remand the prisoner in custody until brought before the court again to be dealt with at the end of the period of remand. But, also, it cannot be doubted that, instead of remanding the prisoner in custody, he may set him at large during the period of the remand. The prisoner may be set at large immediately and unconditionally or only upon his entry into a recognizance. It matters not whether the latter course is described as a grant of bail. The power to condition the setting at large during a period of remand upon entry into a recognizance of a stipulated kind is, in my opinion, beyond question. (at p305)

36. The trial judge in this case decided, for the reasons he expressed in the passage from his remarks which I have quoted, to set the applicant at large during the period which would elapse before he was called up for sentence, i.e. the period of the remand, rather than to leave him in custody during that period. He decided that he would only set him at large on the acceptance by the applicant of the conditions which he, the judge, expressed and which he required to be included as conditions of a recognizance in a money sum. Although he did not expressly seek the applicant's consent so to be dealt with, as well he might have done and which in my opinion it would be good practice to do, it is clear to my mind that the entry into the recognizance by the applicant indicated his consent to the course pursued. (at p305)

37. I am quite unable to agree with the Court of Criminal Appeal in thinking that the power to remand pending sentence is limited to such period as is necessary to enable the judge to be better informed as to the physical or mental condition of the accused. Of course, that is usually the purpose of the remand for sentence, the period of the remand being at least in part determined by the time expected to be taken to obtain the desired information. But it is erroneous to conclude that therefore the power itself is limited to such occasions and to such periods. I can find no decided case which suggests that the power to remand for sentence is so limited. Further, the presence of s. 558 in the amended Crimes Act, like s. 19 of the Powers of Criminal Courts Act 1973 (U.K.), indicates that neither such a power nor its exercise is inconsistent with the due administration of criminal justice. (at p306)

38. But, even if such a restriction as the Court of Criminal Appeal sought to enforce on the power to remand pending sentence were thought to exist, I would be prepared to accept the view that to remand the accused for such a period as would enable the jury to have observations made of his behaviour and of his capacity to be rehabilitated is well within even such a restricted power. Again the terms of s. 1 of the Powers of Criminal Courts Act (U.K.) may be regarded as confirmatory of the acceptability of such a use of the power. (at p306)

39. During the course of argument, I indicated from time to time to counsel for the applicant that we would not propose to enter into the question of what was the proper sentence if a gaol sentence had to be imposed upon the applicant if we found that the Attorney-General's appeal was competent. But, it seems to me, I can properly say that, in my opinion, the interests of the community are not by any means necessarily disserved by a judge taking the course which the trial judge took in this case. It is a course which must be reserved for proper cases, cases in which the guilty person will accept the delay in the determination of the sentence and submit to the compulsion towards reformation which that delay and the terms of a recognizance may involve: and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is likely to occur. It is a course which one would expect to be taken only by those who have had experience in this field and who have heard and evaluated the convicted person. (at p306)

40. I am unable to accept the view expressed by the Court of Criminal Appeal in their solicitude for the prisoner that it was unfair to leave him uncertain as to his fate. It is enough to dispose of that suggestion to say that the applicant under the terms of the bond into which he voluntarily entered could have ascertained at any time what his fate would be by terminating the period of remand. Indeed, he could have preferred to be dealt with and know his fate immediately by refusing to enter into the recognizance: but, evidently motivated by a desire to reform which his subsequent conduct appears to have confirmed, he chose to accept the opportunity made available to him by the trial judge. (at p306)

41. I am a little uncertain as to what the Court of Criminal Appeal really decided in this case. I have quoted the salient parts of the judgment. It is possible to read what the Court said as an intimation that the trial judge lacks the power to remand for sentence except for the purpose of obtaining reports from qualified people as to the physical or mental characteristics of the accused. I have indicated the unacceptable nature of that conclusion. Or it may be that their Honours conceded the power to remand for sentence even for twelve months but thought that it was bad practice so to do. If that was the decision I would not support such a criticism. (at p307)

42. The Court did not give a direct reason for concluding that the applicant had been sentenced, a conclusion that was basic to the Court's power to entertain the appeal. Rather, the Court supported its jurisdiction to hear the Attorney-General's appeal by first pointing out that an appeal would be equally available to the prisoner and to the Attorney-General against an order deferring sentence under s. 558; because of the assumption thus made and for which no reason is afforded, the Court concluded seemingly by analogy that an appeal would lie, again at the instance of a convicted person and of the Attorney-General, against such an order as was made in this case, i.e. a remand for sentence, the convicted person being meantime set at large if he entered into a recognizance containing stipulated conditions. (at p307)

43. But, in my opinion, s. 558 in terms denies that an order made under it is relevantly a sentence: just as, strangely enough, the Attorney-General's notice of appeal in the passages I have quoted seems in terms to deny that the trial judge sentenced the applicant. So, in exercising the power given by s. 558, a judge does not sentence the accused. Clearly, having deferred sentence on the convicted person the judge cannot force on the convicted person the burden of the recognizance. That person may refuse to enter into it. But, if he enters into it there can be no injustice in holding that he cannot appeal against the order to which in substance he has consented. Nor can the Attorney-General appeal under s. 5D against the remand for there is in truth no sentence against which to appeal. (at p307)

44. Having regard to what, in my opinion, the trial judge did in this case, so far from sentencing the applicant, he merely remanded him for sentence. I have great difficulty in believing that an order for remand is a sentence. Indeed, I think quite patently it is not. Even if one is tempted to be dominated in this respect by the text of the definition ignoring completely the circumstance that, in any case, the definition is subject to context, it seems to me that what the words "sentence pronounced" call for is a definitive decision by the judge on the punishment or absence of it which is to be the consequence of the conviction. As I have already indicated, an order that the accused enter into a bond to be of good behaviour may be a means of finally determining what should be done upon a conviction of the prisoner. But clearly a remand for sentence is not. (at p308)

45. A further matter was raised by the applicant which perhaps need not be disposed of in order to resolve this appeal. But the matter has been fully argued and it is a matter which affects the general administration of the criminal law in Australia. I propose to express my conclusion as to the submission. (at p308)

46. It has been said that this Court in Whittaker v. The King (1928) 41 CLR 230 decided that the Supreme Court sitting as a court of criminal appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons. (at p308)

47. In my opinion, this Court decided no such thing in Whittaker v. The King. It is quite true that what was said by the Chief Justice and Powers J. in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J. or Higgins J. would do so. The other two Justices, Gavan Duffy J. and Starke J., in refusing special leave, said that the Court of Criminal Appeal "in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts" (1928) 41 CLR, at p 253 . This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the Court acted was, in their opinion, the correct principle. (at p308)

48. Having referred to the principles laid down in R. v. King (1925) 25 SR (NSW) 218 the Chief Justice of New South Wales in R. v. Whittaker (1928) 28 SR (NSW) 411, at p 418 posed for himself the question whether the trial judge had proceeded upon a wrong principle. On examination of what the trial judge had done, he concluded that he had erred in principle. James J. and Campbell J. concurred in this judgment. Having decided that error was present in what the trial judge had done, the Court then was in a position to impose such sentence as it thought proper. Thus, in my opinion, the joint judgment of Gavan Duffy and Starke JJ., in supporting the judgment of the Supreme Court, denies the view of the function of the Court of Criminal Appeal which has been suggested. (at p309)

49. The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s. 5D of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s. 5D as giving to the court more than a truly appellate function. What it is claimed that Whittaker v. The King (1928) 41 CLR 230 decided would give to the court a function more akin to original jurisdiction exercisable without reference to what has already been done and in the exercise of which the court was not constrained by those principles of appellate courts which concede to the presiding judge a discretion the exercise of which is not to be disturbed except for error. (at p309)

50. In my opinion, s. 5D does not bear such a construction. It does no more, in my opinion, than give to the Court of Criminal Appeal authority to hear and determine an appeal by the Attorney-General against the sentence erroneously imposed by a trial judge. Its reference to discretion, in my opinion, does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. Thus, no question of remitting the matter to the trial judge for sentence in conformity with the reasons for judgment of the Court of Criminal Appeal arises. In other words, the court is not limited to acting as a court of cassation. (at p309)

51. In the instant case, had the Court of Criminal Appeal not been in error in setting aside the orders of the trial judge, it could have imposed the sentence which it properly though appropriate. The matter not having been argued, I do not say anything as to the propriety of the sentence in fact imposed by the Court. However, as in my opinion the Court of Criminal Appeal was in error in holding that the trial judge was in error in the course he took, the Court was not entitled to impose a sentence of its own choice. (at p309)

52. It seems to me that the misapprehension as to the effect of this Court's decision in Whittaker v. The King had led to much more frequent appeals by the Attorney-General than might properly have been expected. Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General's appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle. No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence. But that consistency is not to be sought or secured, in my opinion, by the Court of Criminal Appeal substituting in any case which the Attorney-General cares to bring before it, its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge. I ought at this point to say that I agree with the reasons for judgment of Isaacs J. in Whittaker v. The King (1928) 41 CLR, at pp 248-249 and accept the citations which he makes in support of his views. I would call attention to what his Honour says and add that, in my opinion, the views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. They are in reality in a better position to assess the proper sentence than, in my opinion, is a court of appeal, error or breach of principle being absent. (at p310)

53. On my view of the proper meaning of s. 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The present appeal, though mistaken, is understandable as apparently it was thought that the course taken by the trial judge was erroneous in point of principle or practice. (at p310)

54. In my opinion, the orders and sentence of the Court of Criminal Appeal should be set aside and the applicant immediately brought before Judge Goran for sentence, when no doubt the judge will have regard to what has already occurred. (at p311)

STEPHEN J. This application for special leave to appeal concerns the orders made by the New South Wales Court of Criminal Appeal upon the hearing by it of an appeal by the Attorney-General against what was said to be in the inadequacy of the sentence imposed upon the applicant by Judge Goran in the District Court. (at p311)

2. The applicant had been committed to the District Court for sentence after having pleaded guilty before a stipendiary magistrate. Before Judge Goran he maintained his pleas of guilty and his Honour, after hearing evidence relevant to sentence, remanded him to appear for sentence in twelve months' time, allowing him to go at large in the meantime upon entry into a bond to then appear for sentence. The bond was to be conditioned upon good behaviour and upon his subjection to Probation and Parole Service supervision. The applicant duly entered into a conditioned recognizance. (at p311)

3. For the Attorney-General to be able to appeal to the Court of Criminal Appeal there must exist a "sentence pronounced" by the Supreme Court or District Court (Criminal Appeal Act, 1912 (N.S.W.), s. 5D), and "sentence" is defined in that Act to include: "any order made by the court of trial on conviction with reference to the person convicted, or his property ... " (s. 2). Thus there must either have been a "sentence" within the ordinary meaning of that word or within its extended meaning, which would include an order with reference to the person convicted or his property, if preceded by that person's conviction. (at p311)

4. I have had the benefit of reading the reasons for judgment prepared by my brother Jacobs and my brother Aickin, in which are examined in detail the circumstances in which and the time at which "conviction" of an accused person may take place and the meaning to be accorded to the word "sentence" when not extended by special definition. Their researches have lightened my task; as a result of them I am able to conclude that when Judge Goran dealt with the applicant as he did the applicant was then a person "convicted" for the purposes of the definition of "sentence" in s. 2 of the Criminal Appeal Act but was not one in respect of whom any "sentence", in the ordinary meaning of that word, had been pronounced. (at p311)

5. The only question which remains is whether what Judge Goran did involved the pronouncing of a sentence in accordance with the extended meaning given to it by s. 2 of the Act. Was it an order "with reference to the person convicted or his property"? The applicant submits that what occurred was no more than an adjournment of the trial for a year. In so far as his Honour merely remanded the applicant for sentence he made no such order as that of which the definition speaks. As Jacobs J. points out, it will not satisfy the definition that the order should in some way concern the accused; the phrase "with reference to the person convicted" must mean "with reference to the person of the convicted party". This the subsequent, and otherwise otiose, phrase "or his property" demonstrates. (at p312)

6. Judge Goran also suffered the applicant to go at large, provided he entered into a bond. To order release upon recognizance was clearly not an order with reference to the applicant's property. Nor did it impose any restraint upon the person of the applicant; on the contrary it terminated the restraint which had previously existed during custody pending appearance for sentence. It is no doubt an order which refers to the person of the applicant but, in its context as an extension of the meaning of "sentence", the relevant phrase of the definition should, in my view, be understood as concerned only with orders which adversely affect an accused. This the order for release did not do. (at p312)

7. It follows that there was, in my view, no pronouncement of a "sentence", either as that word is defined in s. 2 of the Criminal Appeal Act or in accordance with the ordinary meaning of that word. There could thus be no appeal by the Attorney-General under s. 5D of that Act from Judge Goran's order. The Court of Criminal Appeal accordingly lacked jurisdiction. I would grant special leave, allow the appeal and set aside the order of the Court of Criminal Appeal. As to the course that should now follow, I agree with what is said in the reasons for judgment of Jacobs J. I also agree with all that is said by Jacobs J. concerning the course which was taken by Judge Goran and concerning the appropriateness of intervention by the Court of Criminal Appeal had it possessed jurisdiction to so intervene. (at p312)

JACOBS J. The first submission on behalf of the applicant is that there has been no conviction. This submission is put in two ways. It is submitted that there was no conviction because all that had happened was that the applicant had pleaded guilty and such a plea is not in itself a conviction; that the judge must announce that he convicts. It is also said that it remained open to Judge Goran to apply the provisions of s. 556A of the Crimes Act 1900, as this section was amended in 1974, and that if there had already been a conviction this would not have been open and that therefore there could not have been a conviction. (at p312)

2. The proceedings were before Judge Goran by virtue of s. 51A of the Justices Act, 1902. Sub-section (7) provides:

"A person sentenced or otherwise dealt with under

sub-paragraph (ii) of paragraph (d) of subsection one of this

section for an offence to which he pleaded guilty pursuant to

that subsection shall, for the purposes of any Act passed

either before or after the commencement of section two of the

Justices (Amendment) Act, 1958, be deemed to be convicted

on indictment of the offence."

3. For the purpose of certain statutes it may be correct to say that there is no conviction until judgment (Burgess v. Boetefeur (1844) 7 Man & G 481 (135 ER 193) ) but that cannot be accepted as a correct generalization. Judgment was often deferred after conviction; for instance a plea of clergy was by Hale's time always taken after conviction and before allocutus and judgment: Hale, Pleas of the Crown (1800 ed.), vol. 2, pp. 378-379. Moreover, the record up to and including the conviction could be removed by certiorari into the Queen's Bench. See Hale P.C., vol. 2, Ch. LVI and Ch. LVIII. Section 441 of the Crimes Act, 1900 recognizes that there may have been a conviction but that judgment thereon may have been deferred. (at p313)

4. I therefore take it that a conviction precedes judgment. It seems to me that the verdict of a jury is a conviction when it has been recorded and that a confession of guilt after arraignment is also a conviction when it has been recorded. There remains a conviction so long as the verdict or the confession remains on the record. The record in this sense is the formal record, the authentic memorial, of proceedings. See the examples in Chitty's Criminal Law, 2nd ed. (1826), vol. IV, pp. 376a et seq. It is not an entry in a record book which is merely a minute or memorandum. I agree with what was said on this matter in Reg. v. Tonks and Goss [1963] VicRp 19; (1963) VR 121 . The content of the formal record is under the control of the judge before judgment in the sense that the judge can within certain limits determine what should properly appear in the formal record when it is drawn up: "... a judge of record is as it were a living record, and controuls the entry of the clerk". Hale P.C., vol. 2, p. 647, and see further at pp. 648-649, and at p. 650 "... the court hath a superintendence, as well over the record as over the clerks". Of civil process Coke states (Co. Litt. 260a):

" ... during the terme wherein any judiciall act is done, the

record remaineth in the brest of the judges of the court, and

in their remembrance, and therefore the roll is alterable

during that terme, as the judges shall direct; but when that

terme is past, then the record is in the roll, and admitteth no

alteration, averment, or proofe to the contrarie."

"Holt C.J. (said) that during the sessions, the order was

in the breast of the Court; and though it was drawn up, yet

it was so far in the breast and power of the Court, that by

the second order it ceased to be a record. The Court at the Old

Bailey have altered and set aside their judgments ten times

the same sessions; where judgment de pain fort & dure

has been given, the Court have after let him in to plead,

and after upon his trial he has been convicted, and has had

another judgment against him to be hanged. So it is of

judgments here; which during the same term are in the

breast of the Judges; ... the sessions as well as the term

is but one day in law."

5. If a prisoner were in the hands of the jury a verdict of the jury might be withdrawn before it was recorded but could not be withdrawn after it had been recorded: Hale, P.C., vol. 2, pp. 299-300. By "recorded" is here meant, in the strict sense, incorporated into the roll, the authentic memorial. However, that did not prevent the jury withdrawing its verdict even after it had been taken and recorded in the looser sense of the word. See Reg. v. Clouter and Heath (1859) 8 Cox CC 237 , a case referred to with approval in S. v. Recorder of Manchester (1971) AC 481 . However, the verdict of a jury if they will not withdraw it must be recorded and of course judgment when given must accord with the recorded verdict. Hale, Pleas of the Crown, vol. 2, pp. 309-310. Hawkins P.C., 8th ed. (1824), vol. 2, p. 623. (at p314)

6. I turn now to some of the cases which have been referred to. Burgess v. Boetefeur [1844] EngR 567; (1844) 7 Man & G 481 (135 ER 193) was a civil action, a claim for a penalty payable by overseers to an informant in a certain event on the conviction on information of the keeper of a disorderly house. Three such keepers of a disorderly house pleaded guilty but judgment was respited from October 1842 to June 1843 when the keepers were brought up and fined. In the meantime the overseers had changed. The plaintiffs sued the newly appointed overseers. The question was whether the right to the penalty accrued at the time of the pleas of guilty or at the time of the judgment. So much reliance has been placed on the words of Tindal C.J. (1844) 7 Man & G, at p 504 (135 ER, at pp 202-203) that I would quote the passage in full:

"The first question then is, who were the overseers of the

said parish at the time the conviction took place. The

information was laid in the year 1842, when the parties

prosecuted pleaded guilty. The defendants contend that the

conviction took place at that time. The plaintiff, on the other

hand, says that there was no conviction then, nor till the

parties were subsequently brought up and received the

sentence of the court. The word 'conviction' is undoubtedly

verbum aequivocum. It is sometimes used as meaning the

verdict of a jury, and at other times, in its more strictly legal

sense, for the sentence of the court. In the passages cited

from Blackstone's Commentaries, the term seems to be used

in both senses. The question is, in which sense is it used in

the statute now under consideration. And I cannot but think

that the case of Sutton v. Bishop (1769) 4 Burr 2283 is decisive of the

point. The court there said, 'Though there is a distinction in

criminal cases between the conviction and attainder, yet

there is no such distinction in civil cases between verdict and

judgment, so as that any effect can follow from a naked

verdict. In a civil action no penalty takes place till judgment

be given on the verdict. The penalty is demanded as a debt,

and is not due till judgment is given. Any other construction

would open the door to frauds. An offender would prosecute

another to verdict, and therefore secure his own indemnity,

and then proceed no further.' Why does not the same

reasoning apply to this case? If a verdict of a jury or a

confession by the party were sufficient to satisfy the statute a

door would be equally open to fraud."

7. In Jephson v. Barker (1886) 3 TLR 40 Stephen J. distinguished Burgess v. Boetefeur. The facts sufficiently appear from his shortly expressed reasons. He said that:

"in this case" (i.e. the case before him) "there had been a

judgment - that was to say, there had been an order of the

Court that the prisoner should enter into his recognizances to

come up for judgment if called upon. In Burgess v. Boetefeur

the judgment was respited, and the prisoner was

subsequently brought up for judgment. The judgment which had been

delivered in the present case was a final judgment except in

certain events." (at p316)

8. In R. v. Rabjohns (1913) 3 KB 171 the question was whether there had been a conviction, which involved forfeiture of a licence, when the defendant had pleaded guilty and had been bound over to come up for sentence when called upon. The Court of Criminal Appeal held that a conviction was complete when a person was bound over to come up for judgment when called on. It purported to approve what Stephen J. had said in Jephson v. Barker but it is necessary to quote the words used (1913) 3 KB, at p 174 :

"In the present case the language of the statute itself seems

to settle this question, as it uses the words 'convicted by the

verdict of a jury or upon his own confession,' but apart from

this the judgment of Stephen J. in Jephson v. Barker (1886) 3 TLR 40

disposes of any possible difficulty, as he there says that a

binding over by the Court is the judgment of the Court for the

purpose of completing a conviction."

9. In Reg. v. Blaby (1894) 2 QB 170 it was held that a previous conviction was sufficiently proved by the production of a certificate which showed that the prisoner had been convicted and had been released upon a recognizance to come up for judgment when called upon and that judgment on the conviction was not necessary. The Court, in the course of its reasons, used language from which it has at times been sought to be argued that a mere verdict or a mere plea of guilty without more amounted to a conviction. That, I think, is to misunderstand the decision. A certificate of conviction was produced as the facts recited in the report show. The conviction was theefore certainly on the record. The case decides no more than that judgment was not necessary before there was a conviction. It was misunderstood in R. v. Sheridan (1937) 1 KB 223 but that case is of little authority since S. v. Recorder of Manchester (1971) AC 481 . (at p317)

10. In Reg. v. Cole Lord Parker C.J. said (1965) 2 QB 388, at p 394 :

" ... whilst no doubt a confession of guilt is the highest

conviction, nowhere is it stated either in Hale or Hawkins

when the conviction occurred. It is clear that it does not

occur at the time of the recording because otherwise it would

be impossible for a judge to allow a plea to be changed, as is

perfectly possible up to sentence, and indeed in one of the

cases a verdict of a jury itself was set aside before

sentence. In the judgment of the court it only ranks as a

conviction when the defendant is sentenced."

11. I would add that I do not regard the approach which I have made as being inconsistent with Reg. v. Tonks and Goss [1963] VicRp 19; (1963) VR 121 or Reg. v. Jerome and McMahon (1964) Qd R 595 , although I do not find the same difficulty with Reg. v. Blaby (1894) 2 QB 170 as did the Court in Reg. v. Tonks and Goss. I would further add that the question whether there can be a plea of autrefois convict unless there has been judgment on the earlier conviction, which was the substantive question in Reg. v. Cole (1965) 2 QB 388 , is a somewhat different question which was left open in S. v. Recorder of Manchester (1971) AC 481 . (at p317)

12. I therefore take the position to be that amendments could be made until the record was finally prepared and this would not usually be until the judgment of the court is complete, but that nevertheless, where there is no question of amendment, there is a conviction when it has been recorded. At the present time the record has not that formality which it previously had and therefore the exercise of the power of amendment may be much less formal. It can be inferred for instance from leave to alter a plea, or from a change of plea inferred from the circumstances to have been applied for and allowed (Reg. v. Hazeltine (1967) 2 QB 857 ). Nevertheless, so long as a conviction by verdict or confession is on the record it stands as a conviction under the general principles of criminal law unless any special meaning is given to the word in the context of a particular statute. (at p318)

13. Though in my opinion there is a conviction in the ordinary case when after arraignment a confession of guilt is recorded, the question remains whether there is a conviction on adhering under s. 51A to a plea of guilty. The answer must depend on the correct construction of s. 51A (7). If a man is not "sentenced" is he "otherwise dealt with" within the meaning of this sub-section when he is placed on a recognizance to be of good behaviour for one year and to come up for sentence at the end of that year? I am satisfied that he is. The making of such an order presupposes that the only outstanding question is that of determining what sentence should be awarded. At the end of the year no further question will arise on the question of guilt or innocence. This is not to say that the court is functus officio on everything except sentence. It could at the end of the year reopen the matter and allow the defendant to withdraw his adherence to the plea of guilty. That, however, would be an amendment of the record and would at that stage be within the judge's discretion. The words "otherwise dealt with" mean "dealt with otherwise than by sentence at a time when the plea of guilty before the magistrate remains on the record of the Court's proceedings". An order of the kind made by Judge Goran satisfies these words. (at p318)

14. It is not easy to apply s. 556A to the procedure laid down by s. 51A of the Justices Act, 1902, but that circumstance does not change the meaning of s. 51A nor make s. 556A inapplicable simply because the plea of guilty before the magistrate must be allowed to remain on the record so that s. 51A can continue to apply to the proceedings. There is a logical difficulty in the concept but this difficulty must give way to the legislative intention. If s. 556A were applied then, despite the plea of guilty which is the source of jurisdiction, there would be no conviction except for the purposes expressly provided in s. 556A. However, until s. 556A is applied, there is no conceptual difficulty. There is a conviction even though on the application of s. 556A there would for most purposes cease to be a conviction. This is hardly if at all different from the exercise of the power of amendment which the judge has until his final disposition of the matter of judgment. (at p319)

15. I conclude therefore that there was a conviction within both the usual meaning of the word and within the particular application of that meaning prescribed in s. 51A (7). (at p319)

16. The further submissions on behalf of the applicant are that even if there was a conviction on 20th September 1974 there was no "sentence" within either the ordinary meaning of that word or the definition of that word in s. 2 of the Criminal Appeal Act, 1912, to include any order on conviction with reference to the person convicted or his property. Therefore it is submitted that there was no right in the Attorney-General to appeal under s. 5D of the Act. It is first submitted that the order made by Judge Goran was no more than an adjournment of the trial for a period of a year and was essentially different from the so-called "common law bond" where a convicted person is bound over to be of good behaviour for a certain period and to come up for sentence if called upon during that period in the event of any breach of the condition for good behaviour. (at p319)

17. But is it essentially different? To answer that question requires an examination of the essential nature of a "common law bond". It is necessary to commence with an examination of the recognizance for good behaviour. At the outset a distinction must be made between a requirement of a recognizance for good behaviour which is a judgment open to the court on conviction for a misdemeanour and such a requirement when it is required by a justice under the statute 34 Edw. III c. 1. The distinction is drawn in Burn's Justice of the Peace. I quote from the 23rd ed. (1820), vol. V, p. 302, but the same passage appears in later editions, e.g. 28th ed. (1837), vol. 5, p. 913; 30th ed. (1869), vol. 5, p. 762.

" ... there is a great difference between what the justices in

sessions may do, after a conviction by a jury, for an offence

committed, and what a single justice out of the sessions may

do, before an offence is committed, and to prevent the same

from being committed; or what a single justice may do,

upon a summary conviction before him, for an offence, as

directed by some special act of parliament. The truth is,

binding to the good behaviour was a discretionary judgment

at the common law, given by a court of record for an offence

at the suit of the king, after a common law conviction by

verdict of twelve men."

18. Now under s. 432 (2) of the Crimes Act, 1900 the court may, in the sentence for any misdemeanour, require the offender to enter into a recognizance, with or without sureties, for keeping the peace and being of good behaviour for a term not exceeding three years. The offender would be imprisoned until sureties were found. An order for recognizances for good behaviour is in all these cases part of the judgment of the court. That judgment is a final judgment. (at p320)

19. There could be no such judgment in respect of a felony unless a statute so provided: R. v. Trueman (1913) 3 KB 164, at pp 166-167 . (A number of the great Criminal Law Consolidation Acts of 1861 in England contained such a provision, but it does not appear that this course was followed in New South Wales. Section 432 is limited to misdemeanours.) If judgment were given it had to be that which the law provided for the felony. Judgment in felony brought attainder and forfeiture and there is no reason to think that the criminal courts could avoid these consequences by a perpetual deferment of judgment. The practice was to defer giving judgment whilst a royal pardon was sought. (There is a vestige of this old procedure preserved in s. 460 of the Crimes Act, 1900.) Such a pardon could be made conditional on the convicted person giving security for good behaviour for a certain period. See the form in Chitty's Criminal Law, 2nd ed. (1826), vol. IV, pp. 455-456. Such a recognizance was not part of the judgment of the court but was of that second kind of surety for good behaviour to which I now turn. (at p320)

20. The recognizance or surety for good behaviour can be required by any justice in respect of "all them that be not of good Fame": 34 Edw. III c. 1. A conviction is not necessary. A recognizance to be of good behaviour may be required where the requirement does not form part of the judgment of the court upon an offender. It may be in association with bail - surety to appear at the nominated court and in the meantime to be of good behaviour or it may be a recognizance required from a person of evil fame to be of good behaviour for a certain period. This may take either of two forms - to appear at a later sessions and in the meantime to be of good behaviour or to be of good behaviour for a certain period of time without any requirement to appear at the later sessions. These last two forms are fully explained in Willes v. Bridger (1819) 2 B & Ald 278 (106 ER 368) . In this second class of case the recognizance for good behaviour, whether or not it be in association with bail in respect of an offence or alleged offence and, if not, then whether or not it nevertheless require appearance before a court at the end of the period, is a recognizance under the so-called powers of preventive justice.

"The statute of 34 E. 3 cap. 1. gave them power to

apprehend malefactors, and to commit them to custody, or to

bind them to their good behaviour, which was not intended

perpetual, but in nature of bail, viz. to appear at such a day at

their sessions, and in the mean time to be of good

behaviour." Hale, Pleas of the Crown, vol. 2, p. 136.

21. This is the power which is exercised in the case of a "common law" bond. I am satisfied that the analysis made by the English Court of Criminal Appeal in R. v. Spratling (1911) 1 KB 77, at p 81 is historically and legally correct.

"We think that, apart from any statutory provisions, the

Court of quarter sessions had power to bind over the

appellant to appear for sentence when called upon. It was

not, and could not be, denied that that Court had power to

sentence him at the time he was convicted. We think it

equally clear that it had power to postpone sentence till a

future day. It also had power to release him on bail on his

own recognizances. To bind him over to appear for sentence

when called upon is only to postpone sentence, and in the

meanwhile release the prisoner on bail. This power has

constantly been acted upon, and we see no reason to doubt

that it exists, and that the jurisdiction to pass sentence still

remains in the Court. We must not, however, be taken to

decide that the Court can postpone sentence sine die against

the will of the prisoner." (at p321)

22. The power to grant a common law bond sprang from the power of justices to do two things which in their nature are quite separate. First, justices holding a commission whether of the peace holding their sessions (provided they were of the quorum) or of assize, or of oyer et terminer or of gaol delivery and a justice at nisi prius from the Queen's Bench all had power to respite or defer judgment on a conviction. I have referred to this power earlier. I add here some further examples. The judge could even in case of capital offences defer judgment where he was not satisfied with the verdict or the evidence was uncertain or the indictment insufficient or doubtful whether within clergy. Hale, Pleas of the Crown, vol. 2, p. 412. Secondly, the judge had the powers of a justice under 34 Edw. III c. 1. (at p322)

23. At some time these two courses were combined. I am not sure that I have been able to discover when this was first reported done. The first reported case which has some resemblance and which I can find is Keen v. The Queen [1847] EngR 681; (1847) 10 QB 928 (116 ER 352) . It was a case of a misdemeanour and the record showed that the defendant pleaded guilty and that it was "considered and adjudged" that the defendant enter into recognizances upon condition that he appear and receive the judgment of the Court at the next Quarter Sessions and keep the peace etc. The record stated further respites of judgment and eventually appearance at a sessions where he was fined, imprisoned and ordered to enter into a recognizance to keep the peace for a certain time after the sentence of imprisonment. It was argued that the first order was the judgment of the Quarter Sessions, especially as it used the language of a judgment, and that there could only be one judgment. There was no doubt that this was so, but the replies of the judges in course of argument are worth noting (1847) 10 QB, at pp 930-931 (116 ER, at p 353) :

"(Patteson J. He entered into recognisances as the price of

having judgment respited. Lord Denman C.J. It is a

conditional order: 'Unless you enter into recognisances,

judgment will be passed upon you.' Erle J. What is

expressed, is an arrangement, and nothing more. Coleridge J.

Recognizances are always entered into voluntarily: the

party of whom they are required declares himself

'content'. If he had not been content in this case, judgment

would have been given against him at once.)"

24. There is no reference to the practice in any edition of Russell on Crimes until the 7th ed. (1909), vol. 1, p. 227.

"At common law the Courts have power, except in capital

cases, instead of inflicting immediate punishment, to release

an offender on his entering into a recognizance, with or

without sureties, to come up for judgment when called on, and in

the meantime to keep the peace or be of good behaviour."

25. It is understandable that complying with the terms of the good behaviour bond now should be regarded as discharging the possibility of a judgment of imprisonment or penal servitude on the conviction: R. v. Smith (1925) 18 Cr App R 170 ; R. v. McGarry (1945) 30 Cr App R 187 . However at least in case of felony a common law bond to come up for sentence if called upon to do so within the time limited in the event of a breach of the bond is not strictly a bar to the court calling the convicted man up in other events. There may be a difference in the case of a misdemeanour since a recognizance for good behaviour was a sentence which could have been imposed in the first place. If there is a difference, much would depend on how the judgment was framed. Perhaps this is the explanation of Stephen J.'s reference in Jephson v. Barker (1886) 3 TLR, at p 41 to the bond as a final judgment. I therefore conclude that, though a common law bond is now in justice recognized as a practical bar, nevertheless, if judgment is only deferred, the legal power to give judgment at least in the case of a felony is not lost and that such a "common law bond" is distinct from the recognizance which may be required as part of the final judgment of the court in the case of a misdemeanour. (at p323)

26. In the light of this analysis it is not easy to distinguish the order made by Judge Goran from a "common law bond" in any essential respect. It was certainly a deferment of sentence. It was clearly a recognizance for good behaviour during the period of deferment. It differed from the ordinary form in that it required appearance before the Court to receive judgment on a day certain or when earlier called on in the meantime, instead of requiring appearance if and when called on at any time during a stated period. This, of itself, is not a sufficiently distinguishing feature. A recognizance to keep the peace or for good behaviour could, and in earlier times regularly did, require the person to attend at a later sessions. However, Judge, Goran did not promise that at the end of the twelve months the applicant would not be sent to prison. Since a common law bond does not in law prevent a judgment for penal servitude even if its conditions are kept, this also is not a distinguishing feature. Moreover, if this applicant had kept the conditions of the recognizance it would hardly have been just to have kept him hoping and trying for a year and then to have sent him to prison. Be that as it may, it does not constitute a legal difference between the two forms of recognizance. (at p324)

27. Section 558 of the Crimes Act, 1900, which was enacted in 1974, specifically empowers a Court to defer sentence and order the release of an offender upon his entering into a recognizance to be of good behaviour for a period and to come up for sentence if called upon. This provision applies to felonies as well as to misdemeanours. It does not in terms provide that the offender may only be called up for sentence for breach of a condition of the recognizance. This may possibly be inferred from the provision in sub-s. (6) that:

"A person may be called up for sentence and sentenced on

the breach by him of any of the terms or conditions of a

recognizance entered into by him under this section if the

breach occurs during the period of the recognizance fixed

under subsection (1), notwithstanding that the period has

expired."

28. But the question remains whether a good behaviour bond combined with a deferment of judgment or sentence whatever its form, though it is not a sentence properly so called, is an order made with reference to the convicted person or his property within the definition in s. 2 of the Criminal Appeal Act, 1912. A good behaviour bond in itself is not such an order. The words "with reference to the convicted person" do not in their context mean "concerning the convicted person". Coupled as they are with the words "or his property" they mean "with reference to the person of him convicted". Otherwise the words "or his property" would be unnecessary. An order with reference to the property of A is an order with reference to A in the sense of an order concerning A but is not an order with reference to A in the sense of an order with reference to the person of A. (at p324)

29. The applicant was in custody at the time Judge Goran made his order. He was released from that custody on entering into the recognizance. But this did not make the order for a recognizance an order with reference to the person of the applicant because it imposed no restraint upon his person. An order for a recognizance as part of a judgment on a conviction for a misdemeanour is different, because in such a case the order provides that the defendant be imprisoned until he finds surety. Such an order is an order with reference to the person of such a defendant in that it conditionally imposes a restraint on his person. But an order for release on recognizance without more is not such an order. The restraint on the person of such a defendant does not flow from the order of the trial judge but from the defendant being in custody pending the determination of the matter charged. (at p325)

30. For these reasons I am of the opinion that neither a so-called "common law" bond nor the order made by Judge Goran in this case is a sentence properly so called nor one within the meaning of that word in the Criminal Appeal Act, 1912. The position would be different if the power were exercised under s. 440B or s. 558 (4) of the Crimes Act, 1900 to impose a fine even though sentence be deferred. This would be an order in respect of the property of the convicted person. Thereby the legislature has allowed more than one judgment to be given in respect of the one conviction or, to express it differently, has allowed judgment to be given by instalments. Thus there may be two orders on conviction with respect to a person or his property. No doubt there are then two opportunities of appeal to the Court of Criminal Appeal. (at p325)

31. It follows therefore that the Supreme Court, sitting as the Court of Criminal Appeal, had no jurisdiction under the statute creating the last mentioned Court to hear and determine the appeal by the Attorney-General under s. 5D. I would therefore grant special leave, allow the appeal and set aside the order of the Court of Criminal Appeal. (at p325)

32. Since in my view this Court must perforce intervene in the proceedings because of the important question involved, and must set aside the sentence as invalid, it is necessary to indicate the course which should now follow. The conditions of the bond became impossible of performance when the applicant was taken into custody to serve the sentence imposed upon him by the Court of Criminal Appeal. The applicant must be brought before Judge Goran at the earliest opportunity. It seems to me that the only course now open is so to deal with the applicant that he will be discharged forthwith. The imposition of a substantial sentence of penal servitude at this stage would be inconsistent with fundamental principles of criminal justice. In so stating, I should not be taken to approve the course taken by Judge Goran in this particular case. The applicant's crimes warranted a substantial sentence of penal servitude. If it was intended that he would be sentenced to penal servitude, then there was no justification for delay. If, on the other hand, it was contemplated that there might not be a prison sentence, then for the trial judge to take such a view was wrong. This was not a case for a bond. The best test whether or not this view is correct is to ask oneself whether, no matter which judge the matter had come before, the likelihood or probability was that the applicant might have been spared a prison sentence. By applying that test, at first instance or on review, disparity of sentencing standards between individual judges is likly to be reduced to some extent at least. Disparity of sentencing standards is a very serious deficiency in a system of criminal justice. This is coming more and more to be recognized. See for instance, most recently, the Report of the Twentieth Century Fund Task Force on Criminal Sentencing entitled "Fair and Certain Punishment" (1976), whose distinguished members were drawn from the judiciary, the law schools, and law enforcement agencies in the United States. The report finds that in the United States there is a profound imbalance between the severity of punishment and the certainty of punishment and that this is perhaps the major flaw in the criminal justice system. See p. 3 of the Report. It makes clear that the main concern is not that wide disparity in sentences is relatively unfair between different offenders but that it is also unfair in the absolute sense that the sentences which fall towards either end of the scale are simply and plainly wrong when they are measured against fairness and effectiveness. See p. 4. It is also observed that there is data to suggest that, in the jurisdictions where the sentencing structure is more indeterminate and the greatest discretion is left to the individual judge, judicially imposed sentences tend to be longer. See p. 13. The position is aggravated in the United States by the lack in many States of an equivalent of the Court of Criminal Appeal with its wide powers of review. It is the task of a court of criminal appeal to minimize disparities of sentencing standards yet still recognize that perfect uniformity cannot be attained and that a fair margin of discretion must be left to the sentencing judge. (at p326)

33. If the Court of Criminal Appeal had had jurisdiction it would have been properly exercising its discretion in interfering in the present case. Under s. 5D the Court has a wide discretion whether or not to interfere even though it may reach the conclusion that another sentence should have been passed. In this respect s. 5D gives a wider discretion than s. 6 (3) where the Court is bound to interfere once it reaches the conclusion that the sentence was not both warranted in law and one that should have been passed. The trial judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest. See House v. The King (1936) [1936] HCA 40; 55 CLR 499, at p 505 . But if it does so conclude it must interfere in the case of a defendant's appeal; it may in its discretion interfere in the case of an appeal under s. 5D. Any different interpretation of Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230 is in my opinion wrong. (at p327)

34. The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression on the minds of those who are persisting in a course of crime that detection is likely and punishment will be certain. The first of these factors is not within the control of the courts; the second is. Consistency and certainty of sentence must be the aim. I entirely agree with the statement at p. 6 of the Report to which I have already referred that where equal treatment (i.e. consistency in sentencing) is not the rule a potential offender is encouraged to play the odds, believing that he will be among those who escape serious sanction. Certainty of punishment is more important than increasingly heavy punishment. According to the Task Force Report at p. 7 this view is now widely shared by liberals and conservatives alike and is emerging in the United States as the key element in proposals for sentencing reforms. Though the circumstances when a release on a bond is appropriate are no doubt many and varied, the release on bond of a man who had a substantial record of previous convictions for similar offences, who had not desisted from his criminal courses over a substantial period of time, who was convicted of offences involving many thousands of dollars worth of property, much of which had not been recovered, who had committed one of the offences while on bail and whose accomplices had received substantial prison sentences was out of the question. (at p327)

35. It may be that Judge Goran deferred sentence only in order to determine whether he would make a declaration under the Habitual Criminals Act, 1957. If so, there are two objections to the course adopted. First, he did not make this clear. Secondly, it would be wrong to determine whether or not to declare a man a habitual criminal by reference to his future rather than his past conduct. (at p327)

36. It is necessary to make these matters clear in case my conclusion in these proceedings should be mistaken for an indorsement of the procedure adopted in this case. (at p327)

MURPHY J. Mr. Griffiths' application for special leave to appeal should be granted, the appeal allowed, and the orders and sentences of the Court of Criminal Appeal set aside. (at p328)

2. Mr. Griffiths pleaded guilty before a stipendiary magistrate to three charges of breaches of the Crimes Act, 1900 (two of breaking, entering and stealing and one of being accessory after breaking, entering and stealing). In accordance with s. 51A (1) of the Justices Act, he was committed to the District Court at Sydney where, on 20th September 1974, he again pleaded guilty to the three charges before Judge Goran. Evidence was given of his record of convictions and he and his wife gave evidence that he had had a change of heart and wished to reform. The Judge said he accepted this evidence and that there were two courses he could take: to declare Mr. Griffiths an habitual criminal and send him to gaol for a long time, or to give him a chance to reform. (at p328)

3. His Honour decided on the second course and remanded Mr. Griffiths for sentence for one year, allowing him to go free provided he entered into a recognizance of $200 to appear on 19th September 1975 for sentence. A condition of the recognizance was his good behaviour and his supervision by a parole officer who would give reports to the judge every three months. The remand could be broken at either Mr. Griffiths' instance or the parole officer's. The Judge said that, if at the end of that year Mr. Griffiths could satisfy him that he should not be sent to gaol and that he had made good, he would not sent him to gaol at all. Mr. Griffiths entered into the recognizance and went free. (at p328)

4. The Judge took a course which was lawful (R. v. Spratling (1911) 1 KB 77 ) and which, from his experience and that of his colleagues in the District Court, had often succeeded in the permanent reform of persons who would otherwise spend much of the rest of their lives in prison at a great loss to themselves and families and at great expense to the community. His attempt to explore an alternative to imprisonment was in accordance with the general disillusionment with imprisonment as a means of either deterrence or rehabilitation (see Report of the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1975); O'Leary, Gottfredson and Gelman "Contemporary Sentencing Proposals" Criminal Law Bulletin, vol. 11 (1975), p. 555) and was designed to safeguard the community by effecting Mr. Griffiths' rehabilitation. A prison sentence would not have achieved this and, as the Judge realized, would probably have confirmed him in a life of crime. The Court of Criminal Appeal accepted that Judge Goran did not always follow this course but selected with considerable care the cases in which he felt it might be justified. (at p329)

5. The parole officer reported after three months that Mr. Griffiths had been most co-operative, had not missed any reporting appointments, had maintained regular employment with one employer for the three months, appeared to have a very stable happy home environment, and that his performance had been above average. (at p329)

6. On 24th October 1974, the Attorney-General gave notice to appeal to the Court of Criminal Appeal against the Judge's decision on the ground that the sentence was inadequate. On 7th February 1975, the Court of Criminal Appeal (constituted by Street C.J. and Lee and Slattery JJ.) rejected submissions for Mr. Griffiths that the Attorney-General had no right of appeal. The court heard the appeal, and imposed a sentence of six years imprisonment with a non-parole period of three years. Mr. Griffiths was then imprisoned. His counsel explained that the lengthy delay in applying to this Court for special leave arose from his inability to get any form of legal aid, despite various applications, until the matter came to the Australian Legal Aid Office. (at p329)

7. Section 5D of the Criminal Appeal Act, 1912, as amended, provides that:

"The Attorney-General may appeal against any sentence

pronounced by the Supreme Court or the District Court and

the Court of Criminal Appeal may in its discretion vary the

sentence and impose such sentence as the said Court may

seem proper."

"In this Act, unless the context or subject matter otherwise

requires or indicates -

'Sentence' includes any order made by the court of trial on

conviction with reference to the person convicted, or his

property and any recommendation or order for deportation in

the case of a person convicted; and the power of the Court

of Criminal Appeal to pass any sentence includes a power to

make any such order or recommendation." (at p329)

8. The subject matter of s. 5D is the Attorney-General's appeal known as a Crown appeal. This is an extraordinary remedy, intended to be invoked only rarely (or criminal justice would become even more uncertain than it is) and then only for reasons of great public importance. The context and subject matter indicate that the word "sentence" is not used with the extended meanings in s. 2. This view is fortified by the use of the word "pronounced". The Shorter Oxford English Dictionary, vol. II, 3rd ed., p. 1598, defines "pronounce" as "To utter, declare, or deliver (a sentence or statement) formally or solemnly; to proclaim authoritatively or officially... To state definitely; or declare as one's opinion or judgment..." (at p330)

9. The phrase "sentence pronounced" refers to a formal and definite sentence in its ordinary meaning. Assuming that a remand for sentence is included in the definition of "sentence" in s. 2, the context and subject matter of s. 5D indicate that "sentence pronounced" does not include a remand for sentence. I do not base my conclusion on any opinion that what Judge Goran did was not an "order ... with reference to the person convicted, or his property" (see s. 2). (at p330)

10. As Mr. Griffiths was only remanded for sentence and the judge had not yet pronounced sentence, the Court of Criminal Appeal had no jurisdiction to hear the appeal. As there was no lawful basis for its sentences and orders directing Mr. Griffiths' imprisonment, the sentences and orders were void. (at p330)

11. Even if it had jurisdiction and Judge Goran were mistaken in what he did (I do not think he was) and should have imposed the gaol sentence, I do not agree with the Court of Criminal Appeal's decision. It is inhumane to send a man to gaol for six years when he had been released a few months earlier for the purpose of reforming him and was observing the conditions of his release and trying to reform. This drastic reversal offends ordinary standards of fairness and brings disrepute to the system of criminal justice. (at p330)

12. The massive failure and enormous cost of traditional sentencing approaches has aroused worldwide concern and this has been reflected in numerous conferences, inquiries and learned articles. Uniformity in sentencing has some virtue in avoiding apparent injustice of unequal treatment. But, as the operation of criminal justice is characterized by gross inconsistencies and inequalities, the disadvantages of maintaining uniformity as a primary objective should be realized. Emphasis on and adherence more or less to a scale of penalties for various offences (the tariff system) exerts pressure on the primary judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and exploration of alternative courses contemplated by the legislature. (at p330)

13. Under s. 5D, the function of the Court of Criminal Appeal is not simply to do what should have been done by the primary judge. It may in its discretion vary the sentence; or decline to vary the sentence, even if it were of the opinion that the sentence should not have been imposed. Its discretion not to vary may be and should be used to minimize the increasing of primary sentences, and to discourage frequent Crown appeals, so that the appeals may be invoked only rarely as the extraordinary remedy that was intended, and that it was until recent years. (at p331)

14. As there is no lawful order for Mr. Griffiths' imprisonment, he should be released immediately. Arrangements should be made for his attendance as soon as possible before Judge Goran so that the sentencing process may be completed lawfully. Although the basis contemplated by Judge Goran for his release has been undermined by imprisonment, the only just course is to release him. (at p331)

AICKIN J. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales. The applicant was charged before a magistrate with two counts of breaking, entering and stealing and a further count of being an accessory after the fact to breaking, entering and stealing. The charges came before a stipendiary magistrate and the applicant there pleaded guilty to the charges. The magistrate accepted the plea and committed the applicant to the District Court pursuant to s. 51A of the Justices Act, 1902 (N.S.W.), as amended, and refused bail. (at p331)

2. This process is referred to as a "committal for sentence" and the appropriate order was made by the magistrate on 14th August 1974. The applicant was then called up for sentence before Judge Goran in the District Court on 20th September 1974 and there, when asked by the Judge whether he maintained his pleas of guilty, he answered yes. He also asked the Judge to take into account in sentencing a further charge of breaking, entering and stealing. The Judge heard evidence from police witnesses as to prior convictions and as to the general antecedents of the applicant and of the circumstances of the offences in question. The prisoner himself gave evidence as to the circumstances of the events giving rise to the charges and also as to his criminal record and the personal position of himself and his wife. He also heard evidence from the applicant's wife as to the position of the children and as to the applicant's general attitude. (at p331)

3. At the conclusion of that evidence Judge Goran said that he accepted the evidence of the applicant and of his wife as to his having had a change of heart. He said:

"You are at the cross-roads; you have either to be declared

(scil. as an habitual criminal) or sent to gaol for a long time, or

else you have got to be given your chance now, and I prefer, of

course, to given your chance now, and I am going to do it. I am

going to do it in this way, a way which is familiar, as I say, to

many people in my Court.

I won't deal with you today, I will deal with you in twelve

months time. During that twelve months you are going to be

on a trial period to see what you can do to keep out of crime and

you are going to be under the supervision of the Probation and

Parole, and I am going to ask them to give me a report about you

each three months to see how you are going, and I am going to

ask them to help you. That means of course that you will be at

large during that time. If you can satisfy me - I won't give you

any promises - but if you can satisfy me at the end of that time

that I should not send you to gaol, that you have made good,

then I won't send you to gaol at all."

"The order I will make is that I will remand you for sentence

to 19th September next year to appear here, and I will suffer you

to go at large providing you enter into a bond today; we will

fix the amount, yourself in $200, to appear on that day for

sentence. You are to be of good behaviour in the meantime,

that is one condition. The other condition is that you will

place yourself under the supervision of the Probation and

Parole Service and obey such reasonable directions as an

officer of that Service may give you from time to time, and I

have called for reports every three months. The period of

remand may be broken at the instance of either yourself or the

parole officer." (at p332)

5. On 24th October 1974 the Attorney-General of the State of New South Wales gave notice of appeal to the Court of Criminal Appeal "against a certain sentence pronounced by His Honour Judge Goran" when Kevin Idris Griffiths appeared for sentence on charges of breaking and entering, stealing and being an accessory after the fact to breaking, entering and stealing. The notice of appeal goes on to say "for the said offences sentence was deferred upon him entering into a recognizance" in the terms above referred to and the ground for such appeal was "that the sentence is inadequate". That notice itself draws attention to the central issue, namely, whether there was in fact a "sentence" pronounced at all. (at p333)

6. Under the Criminal Appeal Act, 1912 (N.S.W.), as amended, s. 5D provides that:

"The Attorney-General may appeal to the Court of Criminal

Appeal against any sentence pronounced by the Supreme Court

or any court of quarter sessions ... "

7. The appeal came before the Court of Criminal Appeal which on 7th February 1975 allowed the appeal and ordered that on one charge of breaking, entering and stealing the applicant should be sentenced to imprisonment for a period of three years, having taken into account the additional offence referred to. On the charge of being an accessory the Court imposed a sentence of one year to be served concurrently with the sentence of three years. On the other offences of breaking, entering and stealing, the Court imposed a sentence of three years to be served cumulatively on the other three year sentence, making an aggregate period of six years. A non-parole period of three years after the date upon which the respondent is taken into custody was fixed. (at p333)

8. It is from that decision that the applicant now seeks leave to appeal. The basis of the decision of the Court of Criminal Appeal was first that, by reason of the applicant having formally pleaded guilty before a magistrate and adhered to that plea before the District Court, there was "technically speaking, a conviction there and then" in connexion with the offences. The Court then referred to the provision in s. 558 of the Crimes Act, 1900 (N.S.W.) (as inserted in 1974) which enables a court "if it thinks fit (to) defer passing sentence upon the person and (to) order his release upon his entering into a recognizance, with or without sureties, in such amount as the Court directs, to be of good behaviour for such period as the Court thinks proper and to come up for sentence if called upon." In its joint judgment the Court said that:

"The deferring of sentence pursuant to s. 558 is clearly within

the appellate jurisdiction of this Court and there seems to be no

reason either in principle or in policy to deny the appellate

authority of this Court where a course achieving and intended

to achieve substantially the same result, is adopted in

consequence either of conviction after trial or conviction on a

plea of guilty."

9. The term "conviction" has been said both in England and in Australia to be equivocal - see the judgment of Davidson J. in Re Stubbs (1947) 47 SR (NSW) 329, at p 335 where some of the English authorities are referred to and the decision of the Full Court of the Supreme Court of Victoria in Reg. v. Tonks and Goss [1963] VicRp 19; (1963) VR 121 where most of the authorities are discussed. Generally speaking a verdict of guilty brought in by a jury constitutes a conviction and some dicta suggest that a plea of guilty is equally a conviction. The latter proposition however cannot be sustained. (at p334)

10. It is well established that a prisoner may at any time up to sentence be permitted to change his plea of guilty into a plea of not guilty. In R. v. Plummer (1902) 2 KB 339 it was said that there could not be any doubt that the power in the court to allow an accused to withdraw his plea of guilty could be exercised at any time before, though not after, judgment. Moreover, it is clear that the court is not obliged to accept a plea of guilty. (at p334)

11. The Full Court in Reg. v. Tonks and Goss said (1963) VR, at pp 127-128 :

"The review of the authorities which we have made satisfies

us that a plea of guilty does not of its own force constitute a

conviction. In our opinion it amounts to no more than a

solemn confession of the ingredients of the crime alleged. A

conviction is a determination of guilt, and a determination of

guilt must be the act of the court or the arm of the court charged

with deciding the guilt of the accused. It may be that even a

determination of guilt will not in all cases amount to a

'conviction', for the latter term may be used in a particular

context as meaning not merely conviction by verdict where no

judgment is given, but conviction by judgment ... ; but there

must at least be a determination of guilt before there can be a

conviction. There can accordingly be no conviction on a count

to which an accused pleads guilty until by some act on the part

of the court it has indicated a determination of the question of

guilt. And if there can be no conviction till then, neither can

there be a successful plea of autrefois convict." (at p335)

12. I respectfully agree with those views and need not go over the analysis of the earlier decisions which led that Court to the conclusion which I have quoted. The same view as to the consequence of a plea of guilty was taken by Gibbs J. when sitting in the Supreme Court of Queensland in Reg. v. Jerome and McMahon (1964) Qld R 595 where he quoted the above passage and agreed with it. He found that the Court had done nothing upon the plea of guilty to indicate a determination of the question of guilt and said (1964) Qd R, at p 604 :

"The Court might do that by imposing a punishment; by

discharging a prisoner on his own recognisances; by

releasing him upon parole; or even perhaps by adjourning the

proceedings to enable information relevant only to the question

of sentence to be obtained. Nothing of that kind occurred in

the present case. The pleas of guilty, it is true, were said to be

accepted, but they were never acted upon in such a way that the

court finally determined the guilt of the accused persons." (at p335)

13. Since those decisions the same topic has been considered by the House of Lords in S. v. Recorder of Manchester (1971) AC 481 where it was held that the rule that the trial judge has power to permit a plea of guilty to be changed to not guilty applied not only in respect of indictable offences but also in respect of summary proceedings before magistrates. The meaning and significance of the term "conviction" was considered by Lord Reid (1971) AC, at p 489 , Lord McDermott (1971) AC, at pp 493, 494-495 , Lord Morris (1971) AC, at p 502 and Lord Upjohn (1971) AC, at p 506 , and their observations were to the same general effect as the above authorities. (at p335)

14. It was argued for the applicant that, before there is a conviction, the trial judge must use some express words to indicate that situation, such as "I convict the accused". I can see no reason why a conviction may not occur by indirect words or by conduct. If a trial judge does some act consistent only with there being a conviction, I do not consider that he must utter some formula to make that action effective. If a trial judge imposes a sentence without having uttered some such formula, it would be plain that the accused had been convicted because the pronouncing of the sentence would be inconsistent with any other view. This is entirely consistent with the proposition that conviction is necessarily a further step after a plea of guilty, though it does not appear that any further step is necessary after a finding of guilt by a jury. (at p336)

15. In the present case the applicant adhered to his plea of guilty and it is plain that Judge Goran accepted that plea. The Judge then went on to hear evidence appropriate to assisting in the determination of the sentence to be imposed, both police evidence as to the nature of the particular crimes admitted and as to his past record and on behalf of the accused in mitigation of sentence. Having heard that evidence what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offences, because the step of remanding for sentence could not be taken by any court without there having been a conviction. It may be that during the period of the remand for sentence an accused person might change his mind and ask to change his plea and there would seem to be no doubt that he could be allowed to do so. That however is not inconsistent with his having already been convicted because, as was said in Reg. v. Phillips and Lawrence (1967) Qd, R 237, at pp 288-289 , per Hart J., the change of plea operates to set aside the conviction. (at p336)

16. The history of the meaning of the word "conviction" was dealt with by Windeyer J. in Cobiac v. Liddy [1969] HCA 26; (1969) 119 CLR 257, at pp 271-273 . He there pointed out that conviction and sentence, which is judgment, are distinct things. He said that (1969) 119 CLR, at p 272 :

"A person found guilty and bound over to come up for

judgment when called upon has been 'convicted': R. v.

Rabjohns (1913) 3 KB 171 ; but a person merely bound over to be of good

behaviour has not: R. v. County of London Quarter

Sessions Appeals Committee; Ex parte Metropolitan Police

Commissioner (1948) 1 KB 670 ." (at p336)

17. A number of possible courses of action are available to a judge when an accused has been convicted. In New South Wales they are, apart from the course adopted by Judge Goran, as follows:

(a) To sentence the accused to a term of imprisonment;

(b) To remand for sentence, which means remand in custody unless bail is

"(1) Where any person is charged before any court with

an offence punishable by such court, and the court thinks

that the charge is proved, but is of opinion that, having

regard to the character, antecedents, age, health, or mental

condition of the person charged, or to the trivial nature of

the offence, or to the extenuating circumstances under

which the offence was committed, or to any other matter

which the court thinks it proper to consider, 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

conviction, make an order either -

(a) dismissing the charge; or

(b) discharging the offender conditionally on his entering

into a recognizance, with or without sureties, to be of

good behaviour and to appear for conviction and

sentence when called on at any time during such

period, not exceeding three years, as may be specified

in the order."

"A Court before which a person comes to be sentenced for

any offence may if it thinks fit defer passing sentence upon

the person and order his release upon his entering into a

recognizance, with or without sureties, in such amount as

the Court directs, to be of good behaviour for such period as

the Court thinks proper and to come up for sentence if

called upon."

18. What was done resembles course (b) and course (e). However Judge Goran remanded the applicant for sentence requiring him to come up for sentence in twelve months time in order that he might be informed about the applicant's future behaviour over that period, not about his past behaviour or his physical or mental condition at the time of conviction. The order also required the applicant to come up again for sentence on a fixed day whether or not in breach of any of the conditions. (at p338)

19. It is clear in the light of the decision of the Court of Criminal Appeal in R. v. Spratling (1911) 1 KB 77 that the courts of Quarter Sessions in England had at common law power to order a convicted person to be bound over to come up for judgment when called upon. Pickford J. delivering the judgment of the Court said (1911) 1 KB, at p 81 :

"We think that, apart from any statutory provisions, the

Court of quarter sessions had power to bind over the

appellant to appear for sentence when called upon. It was not,

and could not be, denied that that Court had power to sentence

him at the time he was convicted. We think it equally clear

that it had power to postpone sentence till a future day. It

also had power to release him on bail on his own

recognizances. To bind him over to appear for sentence

when called upon is only to postpone sentence, and in the

meanwhile release the prisoner on bail. This power has

constantly been acted upon, and we see no reason to doubt

that it exists, and that the jurisdiction to pass sentence still

remains in the Court. We must not, however, be taken to

decide that the Court can postpone sentence sine die against

the will of the prisoner. In this case the appellant was

bound over under the provisions of the Probation Act. Such

provisions may confer a larger power of inserting conditions

in the recognizance than existed before, but they cannot, in

our opinion, divest the Court of the jurisdiction to pass

sentence, which it possessed independently of the Act." (at p339)

20. What Judge Goran did in the present case is exactly what is described in that passage. He did not purport to postpone sentence sine die against the will of the prisoner because the postponement was for a fixed time and the order dealt specifically with the right of the prisoner to bring the period of postponement to an end at any time. It was said in argument that Spratling's Case (1911) 1 KB 77 dealt only with "common law bonds" in the sense used in the argument. A reading of the above passage however shows that it deals also with postponement of sentence until a fixed future day. Indeed it treats an order binding a prisoner over to appear for sentence when called upon as being an example of the postponement of sentence. (at p339)

21. A critical question in this case is whether there is any real distinction between Judge Goran's order and the "common law bond", it being clear in my opinion that Judge Goran had power to make the order which he did make. (at p339)

22. The existence of a power to defer sentence is assumed by s. 441 of the Crimes Act, 1900, which provides as follows:

"441. Where a person is convicted of an offence, whether

punishable with death or otherwise, and sentence is deferred,

the court before which he was tried, or any other court of

like jurisdiction, or the Supreme Court, may pronounce

judgment against him at any time afterwards."

23. The history of the courts of Quarter Sessions in New South Wales shows that they were initially given and have retained all the powers and jurisdiction of the courts of Quarter Sessions in England at the time when they were first set up in 1823. Originally power was given to the Governor to create such courts by 4 Geo. IV c. 96, s. XIX of which provided that such courts "shall take cognizance of all matters and things cognizable in courts of general or quarter sessions in England, so far as the circumstances and condition of the said colony shall require and admit". 9 Geo. IV c. 83 repealed the previous Act and by s. XVII provided that the Governor of New South Wales with the advice and consent of the Legislative Council should have power to institute Courts of General and Quarter Sessions and to give and grant to such courts power and authority to take cognizance of all matters and things cognizable by the Courts of General and Quarter Sessions in England. In 1829 the Governor and the Legislative Council of the Colony of New South Wales enacted 10 Geo. IV No. 7 being "An Act for instituting and regulating Courts of General and Quarter Sessions in New South Wales" and by s. 11 of that Act it was provided that:

"... the said Courts of General and Quarter Sessions shall

have power and authority to take cognizance of all matters

and things cognizable in Courts of General and Quarter

Sessions in England, and so far as the circumstances and

condition of the said Colony shall require and admit."

24. In R. v. London Sessions; Ex parte Beaumont (1951) 1 KB 557, at p 560 Lord Goddard C.J., in considering a provision which defined "sentence" as including "any order made on conviction" with certain exceptions not presently material, said that these words meant "an order made as a consequence of a conviction ..." rather than on the occasion of conviction, thus distinguishing a binding over order made under the statute 34 Edw. III c. 1 in 1360 which gave preventive powers not dependant on conviction. This view was followed in Reg. v. Harman (1959) 2 QB 134 . Such an order however is not comparable to the order in this case. That view may be accepted as applicable to the definition in the Criminal Appeals Act, 1912 which however differs from the English definition in other respects. (at p340)

25. In Reg. v. Dwyer (1974) 60 Cr App R 39 the Court of Appeal (Criminal Division) considered the definition of the word "sentence" in the Criminal Appeal Act, 1968 (U.K.) s. 50 (1) which is expressed to include "any order made by a court when dealing with an offender". Roskill L.J. said (1974) 60 Cr App R, at p 42 :

"In principle it is difficult to see what power this Court has

to entertain an appeal (by a prisoner) against the making of a

binding-over order, because it would not appear to be a

sentence within the meaning of the Criminal Appeal Act

1968."

26. There are three decisions in the Court of Criminal Appeal of New South Wales in which the Court acted upon the basis that an appeal lay from the court below where the accused had pleaded guilty and had been bound over to be of good behaviour and to appear for sentence if called upon at any time within a stated period. In R. v. McAskill (1944) 61 WN (NSW) 153 the accused pleaded guilty to a charge of bigamy and was convicted but released after being bound over on his own recognizance to be of good behaviour for three years and to come up for sentence if called upon within that period. The Crown appealed pursuant to s. 5D of the Criminal Appeal Act, 1912 and the Court of Criminal Appeal took the view that the offence was a serious one. Jordan C.J. said (1944) 61 WN (NSW), at p 154 :

"There is, however, a great difference between imposing a

severe gaol sentence, and imposing no sentence at all, but

allowing a person who has deliberately committed a serious

crime to go scot-free on a recognizance to be of good

behaviour for three years, as the learned trial judge

did. This, in my opinion, is entirely inappropriate to such a

case as the present."

27. Section 669A of the Queensland Criminal Code, 1899, as amended, was introduced in 1939 and provides that the Attorney-General may appeal against "any sentence", a term defined by s. 668 as including "any order made by the court of trial on conviction with reference to the person convicted or his property". Under s. 19 (9) of the Code it is provided that:

"When a person is convicted of any offence, the Court or

Justices may, instead of passing sentence, discharge the

offender upon his entering into his own recognizance, with or

without sureties, in such sum as the Court or Justices may think

fit, conditioned that he shall appear and receive judgment at

some future sittings of the Court or when called upon within a

period specified by the Court or Justices and, if the Court or

Justices think fit, that he shall in the meantime keep the peace

and be of good behaviour."

" ... it is true that on a proper proceeding by the Crown

Prosecutor the matter could be brought up again before the trial

Judge to pass a sentence of imprisonment if he so thought

fit. In view of his report, however, he could hardly do that, and

in practice a prisoner given the benefit of s. 19 (9) is not brought

up again for sentence unless he be guilty of some new

wrongdoing."

28. Thus it has been assumed in New South Wales and Queensland without investigation that the Attorney-General may appeal against orders releasing a prisoner on a "common law bond", and its equivalent under the Code. (at p342)

29. The position which arises when after conviction an accused is released on a common law bond was stated by Lowe A.C.J., speaking for the Full Court of the Supreme Court of Victoria, in R. v. Nicholson [1951] VicLawRp 36; (1951) VLR 273, at p 274 as follows:

"We think that where the Court defers the passing of sentence

and directs a prisoner to enter into a bond to be of good

behaviour and to come up for sentence if and when called upon,

that is a mere postponement or deferring of the completion of

the trial. The trial is not completed until the sentence is

passed. If during the period of the bond there is a breach of it

and the prisoner, upon notice, does not attend before the Court,

the Court has power to bring him before the Court in order to

complete the trial in order that sentence may be passed. That

power is established by inveterate practice of the Courts of

England, and that practice has been followed here. We think

it plain that the Supreme Court has in this regard the powers of

the Courts of common law in England, and that this fact

justifies this practice here."

"It is commonly said that a person is brought up for breach of

recognisance before a court before which he has previously

been convicted, and released on recognisance. The phrase is a

natural one to use, but it is an inaccurate phrase. The person

in those circumstances, and the appellant in this case in these

circumstances, was not brought up for a breach of

recognisance. He was brought up before the court to receive

the judgment of the court, upon a conviction recorded against

him, which up to that date had never been passed. In other

words, he was brought up for sentence. He was brought up

because he had been given an opportunity to be free while he

behaved himself. He had misbehaved himself, and, so far

from observing the condition, he had broken the undertaking."

"Similarly, it has been held that there is a right of appeal

where a prisoner is dealt with for breach of a probation order

made under the English legislation that corresponds to The

Offenders Probation and Parole Act of 1959 (Reg. v. Green

(1959) 2 QB 127).

Under that legislation the Court, instead of sentencing

the offender, makes a probation order and if the probationer

has failed to comply with any of the conditions of the order the

Court may deal with him for the offence in respect of which the

probation order was made." (at p344)

30. The question arises whether there is any material difference between binding over on a "common law bond" to be of good behaviour for a period of time and to come up for sentence if called on within that time, and the order made by Judge Goran in this case. Each is an order which assumes a conviction. The former is one which may be final in the sense that, if there is no breach of the conditions of the bond, the matter is at an end on the expiration of the period of the bond and the judge will not have any further function to perform. If there is a breach, then the convicted person will come up for sentence within the ordinary meaning of that term for the original offence. (at p344)

31. Judge Goran's order required the offender to come up for sentence on the day fixed, or at some earlier date in accordance with the order or upon a breach of the conditions of the recognizance, and accordingly something further remained to be done by the Court in any event. This however is the only difference and the question is whether it is sufficient. (at p344)

32. In his reasons for judgment Jacobs J. deals with the nature and history of the common law bond, and the special position with respect to misdemeanours arising from s. 432 (2) of the Crimes Act. I respectfully agree with that analysis and with the conclusion that it demonstrates that there is no essential legal difference between the requirement of a common law bond and Judge Goran's order. Moreover the passage quoted above from R. v. Spratling (1911) 1 KB, at p 81 plainly treats orders in each form as being of the same kind. No doubt Judge Goran retained formal power to impose a term of imprisonment on the applicant coming before him at the expiration of one year, no breach of the condition having occurred. However, in practical terms all that could be done would be to release the applicant. It is true that no promise was made but any course other than release would not be proper or just. (at p344)

33. This is not a case which can properly be left to be dealt with by the practice followed by the Court of Criminal Appeal in the past, because the critical question, i.e. whether such an order is a "sentence" as defined, has never been examined. It must now be examined with respect to common law bonds, including orders in the form of that made by Judge Goran. (at p344)

34. The cases referred to above establish that when, on breach of a condition of a recognizance, the offender is brought before the court it is for sentence on the original offence, not for breach of the recognizance. Accordingly the original order cannot be a sentence in the ordinary meaning of that term. It is therefore necessary to consider whether the extended definition in s. 2 of the Criminal Appeal Act, 1912 applies to an order imposing a common law bond including an order in the form of Judge Goran's order. That requires consideration of whether it is, first, an order made "on conviction", and second, whether it is "with reference to the person convicted, or his property". (at p345)

35. For reasons already given there has been a "conviction". The order could not have been made at all unless there had been a conviction and it was in truth a consequence of that conviction. Accordingly, I regard it as an order "made on conviction" within the meaning of the definition. But is it an order so made "with reference to the person convicted, or his property"? It plainly does not concern his property as the imposition of a fine would. What then do the words "with reference to the person convicted" mean in this context? If they are given a wide meaning they render the addition of the words "or his property" unnecessary. The phrase conveys the familiar idea "the person or the property" of an accused. An order may "refer to" or be made "with reference to" both, as in the case of a sentence imposing a fine and a term of imprisonment, or may be with reference to one or the other, as in the case of the imposition of a fine and in default of payment a term of imprisonment. Punishment may thus affect the person or the property. An order requiring a person to enter into a recognizance, with or without sureties, to be of good behaviour for a specific period and to come up for sentence at a specified time or if called upon on breach of a condition of the recognizance in the specified period does not of itself refer to, and is not made with reference to, either the person or the property of the accused. (at p345)

36. It appears to me that the words of the definition in their context mean affecting the person or the property of the accused or the convicted person. The question therefore remains whether the order that the accused be released on entering into a recognizance is one "with reference to his person" in the sense indicated. His position is changed by that order, but not adversely. The reference to an order affecting the person or the property of an accused indicates only one with an adverse effect. The order actually made did not restrain or otherwise adversely affect the person of the applicant. (at p345)

37. In my opinion the appeal must be allowed because the Attorney-General had no right of appeal and the Court of Criminal Appeal no jurisdiction to entertain his appeal. It appears to me that the only course now open is so to deal with the applicant that he will be discharged forthwith. The consequence of the view that the order of the Court of Criminal Appeal should be set aside is that the applicant must be brought before Judge Goran but no specific order to that effect is necessary. (at p346)

38. In the result therefore special leave should be granted, the appeal allowed and the order of the Court of Criminal Appeal be set aside. (at p346)

ORDER

Application for special leave to appeal granted.

Appeal allowed. Order of the New South Wales Court of Criminal Appeal set aside and in lieu thereof order that the appeal to that Court be dismissed as incompetent.