R v White [1968] HCA 19

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. R v White [1968] HCA 19

ORDER Special leave to appeal granted, appeal allowed. Order of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

1968, April 26 Barwick C.J.

The question on this appeal is whether it was competent for the judge who sentenced the applicant at the same time to declare him an habitual criminal. The answer is to be found in the proper construction of s. 319 (1) (c) of the Criminal Law Consolidation Act, 1935-1957 of the State of South Australia. That section and the circumstances of the case are set out by my brother Menzies in his reasons for judgment which I have had the advantage of reading. There is therefore no need for me to do so. Further, I agree entirely with the conclusion reached by his Honour and with the reasoning by which he supports it. Having regard, however, to certain views expressed in the judgment of the majority of the Full Court of the Supreme Court of South Australia in this case [6] and by Gibbs J. in Reg. v. Keitley [4] , I wish to add a few remarks of my own.

1. [1967] S.A.S.R. 184. 2. [1965] Qd. R. 190.

The terms of s. 319 were originally derived from s. 3 of the Habitual Criminals Act, 1905 of the State of New South Wales, a provision which was also adopted in substance by the States of Victoria, Queensland and Western Australia and by New Zealand. When first enacted in South Australia in 1907 as s. 3 of the Habitual Criminals Amendment Act of that year, it had been preceded by an Act called the Habitual Criminals Act, 1870 S.A., the substance of which is now to be found in s. 316 of the Criminal Law Consolidation Act. Though the Act of 1907 was entitled as an Amendment Act, it embodied a new and distinct scheme not in reality a modification or extension of the scheme of the 1870 Act. Perhaps the best indication of this is the presence of both schemes, still unrelated to each other, in the present Act. The period of police supervision for seven years after the service of a term of imprisonment for which s. 316 provides depends upon a prior conviction for an offence within a specified range of offences. It is imposed by the Act itself upon the subsequent conviction for an offence in the same range unless the court sentencing the accused for the subsequent offence otherwise declares. On the other hand, s. 319 like its predecessors, including the New South Wales statute, creates in the court a discretion to declare a convicted person an habitual criminal if that in fact is what in the opinion of the court he is. The section does not itself impose anything upon the prisoner but selects what it describes as previous conviction on at least a specified number of occasions of an offence of the specified class as indicative of the possibility that crime has become habitual with the prisoner. It seems to me that the scheme of this section is different from and independent of that of s. 316 and its predecessors and that no conclusion can be drawn from any difference in the language of the two provisions. Further, the selection of previous conviction on at least a specified number of occasions as the condition giving rise to the judicial discretion does not appear to me to be founded on any specific concept of incorrigibility or lack of response by the prisoner to what is said to be the warning of a prior conviction or of a prior sentence. The selection is made I think because the frequency of the commission of an offence within the stated range of offences may mark habituation and call for special measures for the protection of the public and the reformation of the prisoner.