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Court of Criminal Appeal 22 September 2016

Garth v R

[2016] NSWCCA 203

Assault & violenceHomicide
CRIMINAL LAW APPEAL ASSAULT CAUSING DEATH

Citation: Garth v R [2016] NSWCCA 203
Court: Court of Criminal Appeal, New South Wales
Date: 22 September 2016
Judges: Bathurst CJ, Beazley P, Simpson JA

Background

The applicant was charged by indictment with assault causing death while intoxicated, contrary to s 25A(2) of the Crimes Act 1900 (NSW). The charge arose from an alleged incident at Rooty Hill on 3 May 2014, in which the applicant was said to have struck another person with a clenched fist while intoxicated, causing that person's death. A second count of recklessly causing grievous bodily harm was also included in the indictment.

The applicant filed a notice of motion seeking to have the indictment quashed on the basis that Count 1 did not disclose an offence known to law. The applicant's argument was that s 25A(2) must be read together with s 25B, which mandates a minimum sentence of eight years imprisonment with a non-parole period of not less than eight years. He contended that s 25B was constitutionally invalid because it was repugnant to the judicial process and undermined the institutional integrity of the court.

The primary judge dismissed the motion, finding that s 25A could be severed from s 25B and that the indictment therefore disclosed a known offence regardless of s 25B's constitutional status. The applicant appealed that decision to the Court of Criminal Appeal.

  • Whether Count 1 of the indictment disclosed an offence punishable by law, in circumstances where the applicant argued the offence depended on s 25B as well as s 25A(2)
  • Whether it was necessary or appropriate for the Court to resolve the constitutional validity of s 25B in order to determine whether the indictment should be quashed
  • Whether s 25B operates as a penalty-creating provision or merely as a constraint on the sentencing discretion available under s 25A(2)
  • Whether the question of severance of s 25B from s 25A was relevant at this stage of proceedings

Decision

The Court dismissed the appeal unanimously, with Beazley P and Simpson JA agreeing with the reasons of Bathurst CJ.

The Court confirmed the well-established principle that courts across the judicial hierarchy decline to determine a constitutional question unless it is strictly necessary to do justice between the parties. Because the Court found the indictment valid without needing to rule on the constitutional status of s 25B, no such necessity arose here.

Bathurst CJ held that the offence created by s 25A(2) carries its own maximum penalty of 25 years imprisonment and is therefore an offence punishable by law. Section 25B does not create or define the punishment; it operates only as a constraint on the sentencing discretion a court may exercise when imposing that punishment. Even if s 25B were constitutionally invalid, the offence under s 25A(2) would remain complete and punishable.

The Court also rejected the applicant's argument based on the structure of the legislation. The legislature deliberately separated the offence-creating provision (s 25A) from the sentencing constraint (s 25B), and reading them together as a single composite provision would cut across that express legislative intention. The Court further noted that the question of severance only arises once a provision has actually been found constitutionally invalid, not at the prior stage of determining whether a constitutional question should be addressed at all. The applicant's complaint that he could not properly assess his plea without knowing the status of s 25B did not provide justification for the Court to decide a constitutional question that was unnecessary to the proceedings.

Orders Made

• Leave to appeal refused

Key Takeaways

  • Courts will decline to determine a constitutional question unless resolving it is strictly necessary to do justice between the parties in the particular case. This principle applies across all levels of the judicial hierarchy.

  • Under s 25A(2) of the Crimes Act 1900 (NSW), the maximum penalty of 25 years imprisonment is self-contained within s 25A(2) itself. Section 25B functions as a sentencing constraint, not a penalty-creating provision.

  • Because s 25A(2) carries its own maximum penalty, an indictment charging that offence discloses an offence punishable by law regardless of whether s 25B is constitutionally valid.

  • The severance doctrine is only engaged once a provision has been found to be constitutionally invalid. It has no role in the threshold question of whether a constitutional issue should be addressed in the first place.

  • An applicant's difficulty in assessing plea options, arising from uncertainty about the constitutional status of a mandatory minimum sentencing provision, does not of itself require a court to decide a constitutional question that does not otherwise arise on the proceedings. Declaratory relief as to s 25B's validity may be available through other avenues, but the Court of Criminal Appeal, sitting under the Criminal Appeal Act 1912 (NSW), has no jurisdiction to grant such relief.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 25A, 25B, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61
- Criminal Appeal Act 1912 (NSW), s 5F
- Interpretation Act 1987 (NSW), s 31

Cases
- CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2
- Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303
- Lambert v Weichelt (1954) 28 ALJR 282
- Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142
- R v Mai (1992) 26 NSWLR 371
- Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35
- Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50
- Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2