Garth v R [2017] NSWDC 469

Garth v R [2017] NSWDC 469

Section 25B of the Crimes Act 1900 (NSW) acts as a statutory yardstick specifying a mandatory minimum sentence and is not a disabling provision that supplants judicial sentencing discretion. It is constitutionally valid and does not impermissibly interfere with the judicial power or the institutional integrity of the Court under the Kable principle.

Parties
Applicant: Hugh Bacalla Garth; Respondent: Regina; Intervening: Attorney-General of New South Wales
Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Criminal / Ruling on Constitutional Validity of Sentencing Provision Prior to Sentencing
Outcome
Constitutional challenge to s 25B of the Crimes Act 1900 (NSW) dismissed; s 25B held valid.
Legal Topics
Kable Doctrine, Judicial Power, Legislative Power, Mandatory Sentencing, Sentencing Discretion
Constitutional Law Criminal Law Kable Doctrine Judicial Power Legislative Power Mandatory Sentencing Sentencing Discretion

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Parties

Hugh Bacalla Garth

Applicant

Regina

Respondent

Attorney-General of New South Wales

Intervening

Procedural Posture

Criminal / Ruling on Constitutional Validity of Sentencing Provision Prior to Sentencing

Legal Issues

  1. 1 Is s 25B of the Crimes Act 1900 (NSW) constitutionally invalid as repugnant to Chapter III of the Commonwealth Constitution?
  2. 2 Does s 25B operate as a disabling provision that supplants judicial sentencing discretion or as a statutory yardstick?
  3. 3 If s 25B is unconstitutional, is s 25A(2) also invalid?

Ratio Decidendi

Section 25B of the Crimes Act 1900 (NSW) acts as a statutory yardstick specifying a mandatory minimum sentence and is not a disabling provision that supplants judicial sentencing discretion. It is constitutionally valid and does not impermissibly interfere with the judicial power or the institutional integrity of the Court under the Kable principle.

Court Disposition

Constitutional challenge to s 25B of the Crimes Act 1900 (NSW) dismissed; s 25B held valid.

Orders

  • The Court will proceed to sentence.