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1. Relationship with prerogative of mercy and pardons

Part IB of the Crimes Act 1914 (Cth) does not affect the powers vested in the Governor-General in the exercise of the royal prerogative of mercy: s 21D(1).

Section 19AP separately empowers the Attorney-General to grant any prisoner serving a federal sentence a licence to be released from prison for the balance of the sentence. See Release on Parole or Licence.

The royal prerogative of mercy is an executive power vested in the Queen and is exercisable by the Governor-General: Australian Constitution s 61.

1.1 Statutory Referral

Courts may have cases referred to them under the royal prerogative of mercy through statutory referral schemes pursuant to s 68 of the Judiciary Act 1903 (Cth).

For example, in Jasmin v The Queen [2017] WASCA 122 the court held that s 68 of the Judiciary Act 1903 (Cth) ‘picks up and applies’ s 140 of the Sentencing Act 1995 (WA). This allowed the Commonwealth Attorney-General to refer a petition for the royal prerogative of mercy on a federal case to the West Australian Court of Appeal. Similar legislation is in operation in other states and territories. 1

2. Judicial exercise of Mercy

Courts have an inherent and longstanding historical power to exercise mercy where the individual circumstances of the offender, or the offence, so warrant.

In R v Miceli [1998] 4 VR 588, Tadgell JA stated that:

[a]n element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion. 2

In Morrison v Behrooz [2005] SASC 142. Gray J stated at [46]:

Outside of the principles of mitigation, sentencing authorities have an inherent discretion to grant leniency under the doctrine of mercy. In Cobiac v Liddy [(1969)119 CLR 257] Windeyer J observed:

“The whole history of criminal justice has shewn that severity of punishment begets the need for a capacity for mercy … This is not because mercy, in Portia’s sentence, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.”

Gray J went on at [49] to give examples of circumstances in which mercy may arise:

[T]he discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given to factors which are ordinarily not regarded as relevant mitigating circumstances. For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted either from the offence or from the sentence that would be imposed. In order to demonstrate sufficient hardship in this context, there is a need to identify a significant burden to be borne in addition to punishment — for example, a substantial economic, social or other disability. 3

In Markovic v The Queen [2010] VSCA 105, Maxwell P, Nettle, Neave, Redlich and Weinberg JJA stated at [1], on the exercise of mercy in sentencing that:

There must always be a place in sentencing for the exercise of mercy “where a judge’s sympathies are reasonably excited by the circumstances of the case” [R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ)]. This is a proposition of long standing and high authority, repeatedly affirmed in this court. 4

In DPP v Masange [2017] VSCA 204, Maxwell P and Redlich JA stated at [73] that:

The requirements of justice must sometimes be tempered. Mercy ‘may alleviate suffering that is in some sense deserved’ or which a judge is otherwise entitled to impose (citations omitted).

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  1. See eg Criminal Procedure Act 2009 (Vic) s 327; Criminal Code Act 1924 (Tas) sch 1 s 419;  Criminal Procedure Act 1921 (SA) s 173; Criminal Code Act 1899 (Qld) sch 1 s 672A; Criminal Code Act 1983 (NT) sch 1 s 431; Crimes (Appeal and Review) Act 2001 (NSW) s 77, see also s 78.
  2. R v Miceli [1998] 4 VR 588, 592.
  3. Morrison v Behrooz [2005] SASC 142, [49].
  4. Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, 269; R v Kane [1974] VicRp 90; [1974] VR 759, 766; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 523 (Charles JA, with whom Winneke P and Hayne JA agreed); Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601, 607 (Winneke P); R v Miceli [1997] VSC 22; [1998] 4 VR 588, 592 (Tadgell JA), 594 (Charles JA). For a recent example, see DPP v Najjar [2009] VSCA 246, [11].