Rowley v Chief of Army [2017] FCA 1119

FEDERAL COURT OF AUSTRALIA

Rowley v Chief of Army [2017] FCA 1119 File number: NSD 1532 of 2015

Judge: PERRY J

Date of judgment: 21 September 2017

Catchwords: DEFENCE AND WAR – Judicial review of sentence for imprisonment subject to a recognizance release order imposed by service tribunal for offences of dishonesty under Defence Force Discipline Act 1982 (Cth) (DFDA) – where sentence of imprisonment accompanied by order for dismissal – whether s 72, DFDA, operates to "pick up" and apply the power to make a recognizance release order under s 19AC, Crimes Act 1914 (Cth), to sentencing for disciplinary offences - whether ss 68A, 68C, 78 and 79, DFDA, which do not provide for suspension of a period of imprisonment, are exhaustive – whether the sentencing discretion miscarried in whole - whether there was no power to release the applicant pursuant to a recognizance release order because amendments to s 72, DFDA, by the Defence Legislation (Enhancement of Military Justice) Act 2015 (Cth) came into force before the automatic review of conviction and sentence under s 152, DFDA – where s 172(1), DFDA, provides that imprisonment for a specific period does not take effect unless approved by a reviewing authority - whether accrued right to serve sentence of imprisonment in accordance with the recognizance release order is protected by s 7, Acts Interpretation Act 1901 (Cth) - whether Defence Force magistrate misdirected himself in applying s 70(1)(a), DFDA, in failing to have regard to the likely sentence which a civilian court hearing the matter summarily would have imposed – where no failure to have regard to principles of sentencing in accordance with s 70(1)(a), DFDA, established - whether sentence of imprisonment was legally unreasonable – where statistical tables relied upon to demonstrate unreasonableness – where legal unreasonableness not established – no jurisdictional error demonstrated CONSTITUTIONAL LAW – Whether s 68(1)(b), DFDA, beyond the power to make laws with respect to defence under s 51(vi), Constitution, insofar as it prescribes the imposition of a sentence of concurrently with dismissal during peacetime – whether s 68(1)(b), DFDA, is invalid by reason of the lack of any "appeal" or "review" against sentence – where service tribunals do not exercise federal judicial power - where judicial review of sentences imposed by service tribunals available under s 75(v), Constitution, and s 39B, Judiciary Act 1903 - challenge to the validity of s 68(1)(b) dismissed