Leeth v Commonwealth: Case Summary and Analysis
Added on 2020-09-28
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Leeth v Commonwealth:Facts of the case:P, American citizen, pleaded guilty in Queensland Supreme Court to a number of offences, including 3 offences under s. 233B of the Customs Act 1901 (Cth).Received 3 sentences to be served concurrently.Heaviest sentence for crime of conspiring to import into Australia a commercial quantity of cannabis resin.Sentenced to imprisonment with hard labour for 25 years with a recommendation that he not be considered for parole until he had served 14.P appealed sentence.Court of Criminal Appeal deleted recommendation in relation to parole and ordered a non-parole period of 12 and one-half years.S 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be held in the State where the offence was committed, and if not committed within any State, shall be held at such place as Parliament prescribes.Under s 70A of the Judiciary Act, where an indictable commonwealth offence is not committed in any State, the trial may be held in any State or Territory. This does not apply tocases caught by s 70.Under s 70, if the commission of an indictable commonwealth offence commences in one State or part of the Commonwealth and concludes in another, the offender may be tried in either State or part of the Commonwealth as if the offence had been actually and wholly committed therein.P was a federal offender and so Court of Criminal Appeal acted in accordance with s 4. Of the Commonwealth Prisoners Act:o(1) Where a federal court or a court of a State or Territory sentences a federal offender to a term of imprisonment:(a): If a State or Territory law requires the fixing of a non-parole period, thena non-parole period shall also be fixed in relation to the Federal offender; or(b) If a State or Territory law permits the fixing of a non-parole period, then a non-parole period may be fixed in relation to the Federal offender.o(2) Have regard to the matters required under state or Territory law.Section 20 of the Crimes Legislation Amendment Act (No 2) repealed the Commonwealth Prisoners Act, and added a new division to the Crimes Act which provided a Commonwealth scheme for the fixing of non-parole period. However, non-parole periods previously fixed under the repealed law were preserved by section 30(1) of the Amendment Act as if they were non-parole periods fixed under the Crimes Act.Questions for the HC:o1. Was 4(1) of the Commonwealth Prisoners Act prior to its repeal an invalid law of the Commonwealth in so far as it applied to sentences for offences under s 233.B of the Customs Act 1901 (Cth)?o2. Is s 30(1) of the Crimes Legislation Amendment Act (No 2) an invalid law of the Commonwealth in so far as it applies to an order made or purported to be made under s 4(1) of the Commonwealth Prisoner Act?Argument for P:oThe Commonwealth law, in providing for a minimum term to be fixed by reference to State or Territory law, required or permitted the unequal treatment of offenders
because State laws differed significantly. The extension of this argument is that the application of the Commonwealth law was discriminatory in that it required or permitted unequal treatment of equals and was, by implication, not permitted by the Constitution.Rule of law:Mason C.J., Dawson and McHugh JJ:oBy reason s 4 of the Commonwealth Prisoners Act and s 80 of the Constitution, a non-parole period may differ according to the State in which the trial is taking place.oBut, there was no necessary difference. Because, within legislative constraints, it was generally possible to achieve consistent non-parole periods for offenders committing the same offence in similar circumstances.oIn this case, the Court of Criminal Appeal analogised this case with that of an offender named Cornwell who was tried and sentenced in NSW.He was sentenced to 23 years, with a non-parole period of 14, for the same type of crime.But, in NSW, a sentence runs from date offender is taken into custody. Contra, Queensland, where sentence runs for date of imposition.At the time of sentencing, Leeth was already held in custody for 18 months. Thus, to bring Leeth’s non-parole period into line with Cornwell, the Court ofCriminal Appeal reduced Leeth’s non-parole period by 18 months.oDiscuss the role of remissions of sentences.Cornwell only likely to serve a minimum of 8 years and 6 months.Only due to remissions, not discrepancies in sentencing.S 19 of the Commonwealth Prisoners Act provides that State or Territory law relating to remissions and reductions of sentences apply to a federal offender who is serving a sentence of imprisonment in a prison of that State or Territory in like manner as those provisions apply against a State offender.S 33 of the Amendment Act does not affect this.These sections were not impugned.But, it may be observed that, having regard to the widely differing provisions for the remission of sentences in the various States, if uniformity is sought, these sections pose a far greater obstacle to achieving uniformity in the term to be actually served in prison by federal offenders than did s 4 of the Commonwealth Prisoners Act.oDiscusses integration of sentencing and punishment, courts and parole, and the State:Under s 5. Of the Commonwealth Prisoners Act the G-G can make a parole orders requiring the release of a Commonwealth offender on parole.Required to be subject to supervision by parole officer.S 21 provides the G-G might arrange with the Governor of a State for the performance by officers of that State of the functions of a parole officer under the Commonwealth Act.It is apparent from the second reading speech in relation to the Commonwealth Prisoners Act that the Commonwealth had used in the
past, and intended to use under that Act, State parole authorities with respect to federal offenders.Parole systems:Also vary state by state.Relationship between sentence and parole:oWhile the minimum term is part of the sentence imposed upon an offender, its expiry is the earliest point at which the relevant parole system may come into operation so that it must take into account not only the circumstances of the individual but also the requirements of the particular system designed to effect his rehabilitation.oThus, because Commonwealth wants to use existing state parole system, it makes sense to subject federal offenders to the non-parole period which would have been fixed in relation to a State offender subjected to the same parole system.Federal offender imprisoned in State prison:oFederal offender serves in prison in state he/she convicted in.oEnvisaged by s 120 of the Constitution: every state shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Cth.oIt is notorious that the application of different regimes to prisoners serving their sentences in the same prison, particularly in relation to the date of release, is productive of conflict and unrest and is inimical to good prison administration.oThus, cth offender receives same non-parole period as state offenders, is subjected to the same parole system as state offenders, and receives same remissions as state offenders.Judicial power:Under s 77(iii), Cth can invest any court of a State with federal jurisdiction. Criminal jurisdiction conferred by s 39(2) of the Judiciary Act.Specifically, under s 68 of the Judiciary Act.oJurisdiction of State Court to try and convict on indictment State citizens extends to Commonwealth offenders. Extends to arrest, custody and procedure.Cites Williams v the King, in which Dixon J said Cth places administration of criminal law of the Cth in each State upon the same footing as that of the State to avoid the establishment of two independent systems of criminal justice.Thus, the administration of the criminal law of the Commonwealthis organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried.
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