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Court of Criminal Appeal 11 April 2002

CHIEF EXECUTIVE OFFICER OF CUSTOMS v DERBAS

[2002] NSWCCA 132

Drugs
APPEAL BY CASE STATED EXCISE PROSECUTION

Citation: Chief Executive Officer of Customs v Derbas [2002] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 11 April 2002
Judge(s): Mason P, Dowd J, Smart AJ

Background

The respondent pleaded guilty in the Local Court to three offences under the Excise Act 1901 (Cth), arising from events on 8 August 2000. The offences involved possession of cut tobacco leaf, manufacturing excisable goods, and moving goods subject to Customs control. The principal penalty dispute concerned the possession offence under s 117.

After the respondent was sentenced in the Local Court, he appealed to the District Court on the severity of the penalty. The central question was whether an amendment that took effect on 7 September 2000, raising the penalty cap in Local Court excise prosecutions from $5,000 to $20,000, applied to offences committed before that amendment commenced.

Chief Judge Blanch in the District Court held that the amendment did not apply to pre-amendment offences, relying on s 4F(1) of the Crimes Act 1914 (Cth), which provides that increased penalties only apply to offences committed after the relevant provision commences. He substituted a $5,000 penalty for the $20,000 fine originally imposed on the s 117 charge. The CEO of Customs appealed by way of case stated.

  • Whether Chief Judge Blanch erred in holding that the amendment to s 134(4) of the Excise Act did not apply to offences committed before the amendment commenced
  • Whether the amendment to s 134(4) constituted a provision that "increases the penalty" within the meaning of s 4F(1) of the Crimes Act 1914 (Cth)
  • Whether item 62 of the Excise Amendment (Compliance Improvement) Act 2000, a specific transitional provision, prevailed over the general operation of s 4F(1)

Decision

The Court of Criminal Appeal confirmed that Chief Judge Blanch was correct on the materials before him: the amendment to s 134(4) did increase a penalty, not merely alter procedure. The word "penalty" appears in s 134(4) itself, and the subsection operates to fix the maximum recoverable penalty in the Local Court. Section 4F(1) of the Crimes Act therefore applied on its face.

However, a critical transitional provision, item 62 of Schedule 1 to the Excise Amendment (Compliance Improvement) Act 2000, had not been drawn to the Chief Judge's attention. Item 62 expressly provided that the amended s 134(4) applied to prosecutions instituted on or after the date of Royal Assent, whether the penalty was incurred before, on, or after that date.

The Court held that item 62 was unambiguous. Because the prosecutions were commenced on 4 July 2001, well after item 62 took effect on 7 September 2000, the amended penalty cap of $20,000 applied. The general operation of s 4F(1) was displaced by the specific and later provision in item 62, applying the generalia specialibus maxim (the principle that a specific provision prevails over a general one).

The Court also rejected the argument that the respondent acquired a vested right to the lower penalty cap when the offences were committed. Before the amendment, the prosecution could have chosen to proceed in the Supreme Court or District Court, where the respondent would have faced higher maximum penalties. No vested right crystallised at the time of the offence.

Orders Made

  • Question 3(a): Answered yes (the Chief Judge erred in law)
  • Question 3(b): Answered yes, the amendment increases a penalty within s 4F(1), but item 62 of the Excise Amendment (Compliance Improvement) Act 2000 prevails over s 4F(1)
  • No order as to costs

Key Takeaways

  • A provision that caps the maximum recoverable penalty in a particular court constitutes a provision that "increases the penalty" for the purposes of s 4F(1) of the Crimes Act 1914 (Cth) when that cap is raised.
  • Under the generalia specialibus maxim, a specific transitional provision in amending legislation prevails over the general retrospectivity protection in s 4F(1) of the Crimes Act, where the two are inconsistent.
  • Item 62 of the Excise Amendment (Compliance Improvement) Act 2000 applied the amended s 134(4) penalty cap to all prosecutions instituted on or after 7 September 2000, regardless of when the underlying offence was committed.
  • An offender does not acquire a vested right to the penalty regime applicable at the date of the offence where the prosecution retains a discretion to proceed in different courts with different maximum penalties.
  • Both parties' failure to draw the relevant transitional provision to the District Court's attention contributed to the error; the Court of Criminal Appeal declined to make a costs order against either party.

Legislation and Cases Referenced

Legislation:
- Excise Act 1901 (Cth), ss 35, 61, 117, 129, 133, 134, 138
- Excise Amendment (Compliance Improvement) Act 2000 (Cth), Schedule 1, items 61 and 62
- Crimes Act 1914 (Cth), s 4F(1)
- Criminal Appeal Act 1912 (NSW), s 5B

Cases:
- Clyne v Wrigley [1980] 1 NSWLR 599 (cited on the question of costs in case stated matters)