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District Court 27 October 2017

Garth v R

[2017] NSWDC 469

Assault & violenceHomicidePublic order & justice offences

Citation: Garth v R [2017] NSWDC 469
Court: District Court of New South Wales
Date: 27 October 2017
Judge: Townsden DCJ

Background

The accused was found guilty by a jury on 24 May 2017 of assault causing death while intoxicated, contrary to s 25A(2) of the Crimes Act 1900 (NSW). This offence, inserted into the Act in January 2014, carries a maximum penalty of 25 years' imprisonment. Section 25B of the same Act prescribes a mandatory minimum sentence of eight years' imprisonment, including a non-parole period of not less than eight years, for any offender convicted under s 25A(2).

Before sentencing, the accused challenged the constitutional validity of s 25B. The Attorney-General of New South Wales intervened through the Solicitor-General, who provided written submissions supporting the provision's validity. This was not the first constitutional challenge connected to the same accused: an earlier application to quash the indictment on related grounds had been refused at first instance and upheld by the Court of Criminal Appeal in Garth v R (2016) 341 ALR 620.

  • Whether s 25B of the Crimes Act 1900 (NSW) operates as a "disabling provision" that partially overrides ordinary sentencing procedures, or as a legislative yardstick that sets the lower bound of the available sentencing range.
  • Whether s 25B, on either construction, is constitutionally invalid under Chapter III of the Commonwealth Constitution, on the basis that it is repugnant to the judicial process in a fundamental degree (the Kable doctrine).
  • If s 25B is invalid, whether it is severable from s 25A(2), such that s 25A(2) would also be rendered invalid.

Decision

The central contest was whether s 25B functions as a "disabling provision" or a sentencing yardstick. The accused argued that s 25B(2) contemplates the court first determining a proper sentence under ordinary principles, and then prohibits the court from imposing that sentence if it falls below eight years. On this view, the provision does not merely set a floor; it invalidates the court's own legitimate conclusion and substitutes a legislatively imposed outcome, distorting the exercise of judicial discretion in a manner repugnant to the judicial process.

His Honour rejected that construction. Drawing on the High Court's analysis in Magaming v R (2013) 252 CLR 381, Townsden DCJ concluded that a mandatory minimum penalty fixes one end of the sentencing yardstick rather than disabling any prior exercise of judicial reasoning. The reference in s 25B(2) to a "lesser sentence" does not require the court to first arrive at a substantively different outcome and then be prevented from imposing it. The provision simply sets the minimum, with all other sentencing principles operating within the range above that floor.

His Honour also rejected the argument that the earlier Court of Criminal Appeal decision in Garth v R (2016) stood as authority for the "disabling provision" characterisation. That decision concerned only whether the offence charged was known to law, and the constitutional question about s 25B's character was expressly left aside.

The Court was satisfied that s 25B operates as a statutory yardstick and is constitutionally valid. Having resolved the primary question of validity in favour of the provision, it was unnecessary to address severability. The matter was referred to sentencing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court held that s 25B of the Crimes Act 1900 (NSW), which imposes a mandatory minimum sentence of eight years for assault causing death while intoxicated, is constitutionally valid under Chapter III of the Commonwealth Constitution.
  • A mandatory minimum penalty provision does not become constitutionally invalid merely because it constrains sentencing discretion; under Magaming v R, such a provision fixes one end of the sentencing yardstick rather than supplanting the sentencing process altogether.
  • The Kable doctrine, which invalidates State laws that require courts to exercise judicial power in a manner fundamentally repugnant to the judicial process, was found not to be engaged by the operation of s 25B in this context.
  • The earlier Court of Criminal Appeal decision in Garth v R (2016) was confined to whether the charged offence was known to law, and did not resolve or determine the character of s 25B as either a disabling provision or a yardstick.
  • Section 25B(3) expressly preserves the operation of the Crimes (Sentencing Procedure) Act 1999 (NSW) and other sentencing laws, except to the extent that s 25B(2) requires a minimum term, a structural feature that supported the conclusion that ordinary sentencing principles continue to operate above the mandatory minimum floor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 19B, 24, 25A, 25B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Migration Act 1958 (Cth), ss 233A, 233B, 233C, 234, 234A, 236B
- Crimes Act 1914 (Cth), Pt IB
- Commonwealth Constitution, Ch III

Cases
- Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203
- Magaming v R (2013) 252 CLR 381; [2013] HCA 40
- Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
- International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
- South Australia v Totani (2010) 242 CLR 1
- Kable v Director of Public Prosecutions NSW (1996) 189 CLR 51; [1996] HCA 24
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
- Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49
- R v Barbieri [2014] NSWSC 1808
- R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep)