AB v Director of Public Prosecutions (Cth)

[2006] HCATrans 267

[2006] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2006

B e t w e e n -

AB

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 2 JUNE 2006, AT 9.56 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR N. NIARCHOS, for the applicant.  (instructed by George Mancini & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent with my learned friend, MR G.C. FISHER. (instructed by Director of Public Prosecutions (Commonwealth))

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, may I commence by apology.  There are references within the written submissions which are anomalous because of the process of renumbering of paragraphs by reason of the censoring of the reasons.  I do apologise.  I think contextually your Honours will not have been misled.  I certainly hope not.

Your Honours, in one sense this is an application which calls in aid nothing more special than a grievance that well‑established principles concerning sentencing appeals, including particularly those brought by the Crown, have been applied in a particular case.  It is not possible for me to identify, and we have not attempted in our written submission to identify, any increment to or qualification of the well-established principles which have been cited on both sides.

However, in relation to the interests of justice in the particular case, this is the paradigm case, in our submission, for consideration by this Court of interfering with an intermediate appellate decision in a Crown sentencing appeal, paradigm because there had been a very explicit consideration of matters which Commonwealth law required to be considered and, we would submit, explicitly and seriatim, certainly permit to be considered explicitly and seriatim.

We refer in particular, of course, to the provisions of section 16A.  If I could take your Honours in the book of materials, you will find the relevant provisions at page 170 behind tab 1, 16A of the Crimes Act.  In subsection (2), matters compulsorily to be taken into account by the sentencing court include those in paragraphs (f), (g) and (h). 

Your Honours will have seen that there is a Freudian slip where we talk about there being no redundancy in paragraph 33 of our submissions at page 118 of the application book.  Unfortunately we did so with a typographical error which said no redundancy between “16A(2)(g) and (g)”.  What that means of course is (g) and (h), but there is the (f) as well.  These are separate items.  Now, that does not mean there is not overlap.  They are not the only ones between which there are overlap.

HAYNE J:   But is it said that there is specific error either by the primary judge undetected by the Court of Appeal?

MR WALKER:   No, there was ‑ ‑ ‑

HAYNE J:   Does it then come to manifest excess?

MR WALKER:   It does.  It was a manifest excess appeal, yes.  Before it comes to manifest excess what might be called the unarticulated ‑ ‑ ‑

HAYNE J:   I am sorry, we are at cross-purposes.  Does your argument come to manifest excess by the Court of Appeal on the prosecution appeal?

MR WALKER:   No.  Our argument must – because there are ranges where one looks at what I will call, deliberately, “tariff considerations” there is a range which would be quite impossible for me to contend has been exceeded once one looks at a tariff approach.  But, of course, a tariff approach ‑ ‑ ‑

HAYNE J:   What I am having difficulty with is the primary judge makes a non-custodial disposition.

MR WALKER:   Yes.

HAYNE J:   The CCA intervene and impose a custodial disposition.

MR WALKER:   Yes.

HAYNE J:   Now, the complaint you make about that is what?

MR WALKER:   Is that the intermediate appellate interference was triggered by inadequate threshold holdings.  In particular, there is not identified, in our submission, any error in the judge’s appreciation of the importance of the co‑operation ‑ ‑ ‑

HAYNE J:   No.  The CCA does not say “specific error by the primary judge”.

MR WALKER:   Quite.

HAYNE J:   The CCA says “manifest inadequacy, therefore”.

MR WALKER:   Yes, but in our submission ‑ ‑ ‑

HAYNE J:   Now, is that wrong?

MR WALKER:   Yes, if there is no reason applied and the disparity between what the appellate court does and what the trial court did is of the order that one sees in this case.  It is not said that what I will call the starting point in the trial of sentencing judge’s reasoning was wrong or outside the applicable range for the offences.  That is not said.  That means, in our submission, that when one looks at the very careful and deliberate step‑by‑step approach taken by the sentencing judge it can be seen that the manifest inadequacy said to emerge at the end of the process is one which emerges because there is disagreement - and that is the word we choose quite deliberately - by the appellate judge with the extent of the discount. 

CRENNAN J:   That is right.  That is really what was said, was it not? 

MR WALKER:   Yes.

CRENNAN J:   Rather than a comment on range it was said the discounts were too great so the penalty was no longer proportionate.

MR WALKER:   Your Honour, there is no doubt that that is the way in which it is expressed and the reasoning to get there was that the discounts were too great, the 65 per cent aggregate.  However, the reason why that was identified as an error permitting the ostensibly rare outcome of an interference at the Crown’s instance with a sentence was because there had been the separable or discrete attention paid by the sentencing judge to the plea of guilty and to the co‑operation.

That is the point where, in our submission, an error worthy of this Court’s attention has been committed by the appellate court for this reason.  It is one thing to say that sentencing courts should be wary lest there be double counting by reason of the overlap.  That is one thing.  It is another thing to say that sentencing courts may take account of the matters that 16A(2)(f), (g) and (h) explicitly and discretely list by just one indifferently allocated total amount.  It is completely another thing ‑ apart from those two other matters, with which we of course have no challenge ‑ to say that it is an error for a judge to say for the plea of guilty this, for the co‑operation that extra.

In our submission, when one looks at the provisions of 16A it is a dangerous precedent to have turned from a sentencing judge need not identify separately to what is the message from this authority if it is not affected by consideration in this Court, namely, sentencing judges should not.  That is, if they do assign identifiable components for two quite different things, both indicating…..but two quite different things, then they will have committed an error of a kind which recommits the sentencing discretions to the appellate court and at the instance of the Crown.

Now, there are a number of very important reasons of penological policy why that would be a dangerous authority or precedent to remain in relation to Commonwealth sentencing without this Court looking at it and the most obvious one has to do with cases of exactly this kind.  I will call them, without intending to be technical, accomplices in serious organised crime of a kind that requires co‑operation and involves the kind of hierarchy of fear which leads people to be unco‑operative with the authorities.  “Better to serve my time” reasons the miscreant who has been caught, “than to be carried out of here in a box”.  “Better to serve my time without any discount for co‑operation than to co‑operate and be at risk” and we know that in this case there was risk accepted by the prosecuting authorities which was taken into account by the sentencing judge. 

A plea of guilty, in short, is a world of difference from a plea of guilty plus co‑operation and in this case the co‑operation was of a scale which on any view of it was appreciable.  See, for example, at the application book page 58, about lines 22 to 37, comments which are not appropriately to be seen as capable of having been departed from on appeal. Without the information provided to the police by my client:

they would not have been aware of how –

your Honours will forgive the expression, Mr Big -

left Australia, his subsequent whereabouts or what his current criminal modus operandi was and how it operated.  It follows that nor would he now be returned to custody in Australia.

That is the kind of assistance which in the public interest one needs to encourage as a sentencing judge.  The message has to go out so that those who advise people, in the parlance, “considering a rollover”, are able to do so in the way which with integrity – that means overtly and without winks and nods ‑ indicates to those advising what will be the approach taken. 

Now, facts are infinitely various in relation to the weight that ought to be given to an early plea.  Your Honours have seen many cases where it is hard to keep a straight face when early plea is referred to because somebody has been caught so red-handed that there was no practical choice and there are other cases where an early plea does serve a real purpose in particular indicating contrition of a kind which is then capable of being accompanied by further extra and socially important pieces of conduct apart from the plea of guilty which permits the conviction without a trial.  We refer of course to co‑operation. 

In our submission, it is a very serious error that has been committed on appeal in this case to have identified a supposed error on the part of the sentencing judge of actually attributing a component for the co‑operation.  That is precisely what, in our submission, one would expect, uninstructed by authority, from the list of discrete items in section 16A(2). 

Now, of course, there is a risk of overlap to which Chief Justice Gleeson has referred in cited passages but that is not shown to be a risk of which the sentencing judge was insensible and it is not shown to be a risk, which in any identifiable way by reference to the facts of this case, he has fallen into.  That is why in a Crown sentencing appeal there should not have been the description of error attached to the way in which the judge proceeded.  If there had not been that attribution of error to the way in which the sentencing judge had proceeded then, in our submission, it is difficult to see anything other than simply an impressionistic explanation for the supposed inadequacy.  Your Honours, that is the special leave point. 

There are, however, in relation to the individual justice of the case, the further points that we have made in relation to in particular section 19 of the Crimes Act.  That is quite a different point, very important to my client of course, but it is quite a different point because that is a point that might, for example, result - were there an appeal and success ‑ in remitter for reconsideration by the intermediate appellate court in accordance with the reasons of this Court.  So apart from what is already said in writing about that matter I do not wish to dwell on that today but the first point, the real special leave point to which we have made reference, which is really question 2 on page 113 of the application book is one which, if it is correct, should have resulted in a dismissal of the Crown’s appeal.

That is why I started as I did and why I will finish in the same way.  This is a paradigm for this Court, notwithstanding, I am not proposing any alteration by the Court to the general principles governing intermediate appellate consideration of a sentencing discretion at the interest of the Crown, but in the interest of justice a man where a sentencing discretion has him at liberty though conditionally is instead serving a term of imprisonment under circumstances where it is acknowledged that includes a degree of risk.

Now, what can be said, however, to be transcendent of the individual case and to provide the opportunity in this case for the Court to send a very clear and salutary message, is this dangerous precedent proposed whereby there has been a slide and sentencing judges not having to attribute components to a discount for early plea and for co‑operation to a quite different proposition, namely that it would be an error to have done so.  May it please the Court.

HAYNE J:   Just before you sit down, Mr Walker, it is not, I think, a matter that you seek to raise on appeal to this Court but I confess to being struck by what appeared at page 103, paragraph 34 of the reasons of the Court of Appeal, the effect that the court was “not the sentencing court”.

MR WALKER:   Yes.  It was sentencing ‑ ‑ ‑

HAYNE J:   It seemed to me that it was the court that imposed the federal sentence but that it is to be understood as having caused the sentence to be explained by the District Court on resentencing.  As I say, I do not understand that to be some separate point that would arise.

MR WALKER:   It is, as it were, commentary but it is not the central point.

HAYNE J:   Yes, I understand.  Thank you.  Ms Abraham, we need not trouble you generally in the matter, but is there anything you would wish to say about what is said in paragraph 34 of the Court of Criminal Appeal’s reasons?

MS ABRAHAM:   No, there is not, your Honour.  Obviously the Court of Appeal is the sentencing court and the court there, in my submission, is doing no more than it indicates that the sentence had been explained and the details had been explained by the ‑ ‑ ‑

HAYNE J:   I think they were speaking in the future, Ms Abraham, rather than as for the past, but there we are.

MS ABRAHAM:   True.

HAYNE J:   Yes, thank you. The applicant seeks special leave to appeal against the orders of the Court of Criminal Appeal of South Australia allowing a prosecution appeal against sentence and imposing a custodial sentence upon him rather than the non‑custodial disposition made by the primary judge. We do not accept that upon the Court of Criminal Appeal allowing an appeal and re‑sentencing the offender that court is not, within the meaning of section 16F of the Crimes Act 1914 (Cth), “a court that imposes a federal sentence on a person” and thus bound to explain, or cause to be explained, the matters prescribed by that section. The Court of Criminal Appeal having caused the relevant matters to be explained to the applicant on his surrender to the District Court, no separate question arises concerning that aspect of the matter.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter.  It therefore does not present a suitable vehicle in which to consider the wider questions raised by the applicant in the course of argument of whether or when particular mathematical values are to be attributed by a sentencing judge to discounts for co‑operation with authorities, plea of guilty or like matters.  Special leave to appeal is refused.

AT 10.17 AM THE MATTER WAS CONCLUDED