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1. Relationship with Pregoative of Mercy and Pardons

Section 21D provides that 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.

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.1

In Attorney-General (Cth) v Ogawa [2020] FCAFC 180, the Court considered that it was preferable to describe a petition to the Governor-General as an ‘application for an exercise of Constitutional executive power under s 61 of the Constitution’ rather than an exercise of the ‘prerogative of mercy’.2

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).

In Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145, 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 in a federal case to the West Australian Court of Appeal: see Jasmin v The Queen [2017] WASCA 122. Similar legislation is in operation in other states and territories.3

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 at 592:

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

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 257Windeyer 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.

In R v Osenkowski (1982) 30 SASR 212, King CJ stated at 212–3 that:

There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

This was affirmed in Markovic v The Queen [2010] VSCA 105, where Maxwell P, Nettle, Neave, Redlich and Weinberg JJA held at [1] that King CJ’s statement in R v Osenkowski ‘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. Constitution s 61. See Attorney-General (Cth) v Ogawa [2020] FCAFC 180, [67] (Allsop CJ, Flick and Griffiths JJ).[]
  2. Attorney-General (Cth) v Ogawa [2020] FCAFC 180, [68] (Allsop CJ, Flick and Griffiths JJ).[]
  3. See, eg, Criminal Procedure Act 2009 (Vic) s 327; Criminal Code (Tas) s 419;  Criminal Procedure Act 1921 (SA) s 173; Criminal Code (Qld) s 672A; Criminal Code (NT) s 431; Crimes (Appeal and Review) Act 2001 (NSW) s 77, see also s 78.[]
  4. See 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), DPP v Najjar [2009] VSCA 246, [11]. For a recent example see R v Yavuz (2020) SASCFC.[]
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