Achurch v The Queen

[2014] HCATrans 15

[2014] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2013

B e t w e e n -

BRIAN WILLIAM ACHURCH

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2014, AT 10.01 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with MS G.A. BASHIR.  (instructed by Catherine Hunter Solicitor)

MR L.A. BABB, SC:   I appear with MS S.C. DOWLING, SC.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  The Court should have our outline.  Your Honours, should I wait for a moment or just press on? 

FRENCH CJ:   I think you can get started, Mr Game.

MR GAME:   Thank you, your Honour.  Could I take the Court directly to page 493 of the appeal book?  In paragraph 22 of the judgment - and there are complexions on it but there really are two different ways in which this provision can be approached and they are set out there in paragraph 22.  What then the court did in the judgment was to examine the judgments in that line of cases that we have set out in paragraph 1 and then when one comes to paragraph 61 the court says:

where no challenge is made to those decisions it would be inappropriate to construe the provision in the narrow fashion.

Now, those cases and really the genesis of the – the genesis of what might be described as the liberal construction of the provision commenced in Denning but the real articulation of it was in Ho by Justice Kirby where his Honour – that was actually a backdating case and it is maybe worth going directly to Ho 37 NSWLR. This was a case about failing to have regard to some days of untaken - custody not taken into account. The critical passage is at page 403 in the judgment at 37 NSWLR 393 at paragraphs (4) and (5). So that, if I just pause there, that really is the passage which has been adopted in the cases.

Now, we do not dispute that the narrow construction might have been open, but this is the construction that has been adopted and adopted consistently in the cases and never challenged by our opponents in this case in any formal sense.

CRENNAN J:   But is it not a consistent thread in the conception of a broad operation - is not a consistent theme that section 43 is not, as the Court of Appeal said in this case, a proxy for an appeal?  Justice Kirby says that too, does he not?

MR GAME:   Actually, yes, your Honour, but that particular passage in his judgment - a different approach has been taken with respect to what might be described as the second phase which is, if you get to 43(2):

The court may reopen –

This can be seen in Erceg 143 A Crim R 455 at 103 that the idea that one cannot get into resentencing in the broader sense has been really put aside by the cases and there is a good reason for that which is there is no rehearing with respect to the first phase of the thing, but the extent to which you get into resentencing depends entirely on the significance of the error. So that take, for example, the example that is quite often put about the wrong penalty provisions. If the wrong penalty provision is applied, you are going have to resentence. So really the second phase depends on the consequence of the error and that passage at 103 in Erceg, we say is correct. 

FRENCH CJ:   The difficulty is we have to construe this, whatever position people might have taken in respect of previous cases.

MR GAME:   Quite, your Honour.  No, I understand.  I understand that, your Honour.

CRENNAN J:   But in 103 the sub‑premise is that an error in penalty has been detected.

MR GAME:   If one reads paragraph 104 it is accepting what might be described as the breadth of the approach with respect to errors in the process of reasoning that led to the penalty.  There would be very few errors that just emerge from the penalty itself and many of the errors, even on the narrow construction that have been considered, would not be amenable to this.  For example, a failure to take into account a backdate would not be caught.  A failure to have regard to when a person was eligible for parole would not - many, many of the circumstances that have been regarded as falling within the provision would not be able to be brought within the provision.

I accept that the provision is clearly open to that construction, your Honour, but the way it has been construed is really to look at whether or not there have been patent errors in the sentencing process.  It is the idea of patency that is actually the thread that flows through these cases.  We say that it is a mistake, as it were, to construe it as if it were like an appeal provision.  It is a provision that enables you to go back to the judge when the judge has made a patent error in the process, including in the reasons – very importantly – for sentence.

FRENCH CJ:   The problem there, by bringing in the reasoning process, is that you create a rather porous boundary, if you like, between this procedure and the appellate procedure.  There is a lot of attraction with a simple notion that the penalty, contrary to law, is a penalty that is not open at law, for example, because a mandatory minimum has not been applied or a prior conviction which would attract the application of some mandatory minimum has not been taken into account.

MR GAME:   Yes.  Your Honour, if that is the proper construction of the provision then it does not even pick up slips because slips will not normally be unlawful sentences.  So you could not even use it as a de facto slip provision.  This provision came in through amendments in Local Court legislation.  Then it was applied to superior courts as well in 1988 or 1989 which themselves had inherent powers, but it started in Local Courts which only had implied powers.  It could actually have worked as a de facto appeal because there were very strict time limitations in Local Courts so that it worked in a different way to start with.  But then it comes to apply to courts with inherent powers. 

So we would say that that history rather supports the idea that it was not intended just to be limited to what might be described as unlawful sentences.  There is another aspect to this which I might as well bring in straight away which is this, that one of the vexing issues that has arisen is whether or not this could be done on the basis of the material before the court or whether or not one could introduce evidence to say that the person was exposed to a higher penalty. 

That is the dispute that emerges between the Western Australian cases and the Queensland cases because the Queensland cases say you cannot look at that evidence.  That is a de facto Crown appeal.  But if you adopt the narrow construction it is difficult to see why you should be able to go outside – I mean, one go outside the record at all, that is to say, so if it discovered, as has happened in some of these cases, by the Department of Transport that the person was actually liable to a higher mandatory penalty then it is difficult to see how that could fall within this provision if you are only looking, shall I say, at the record and whether or not it is a lawful sentence.  So, it would even be more constrained than has been contemplated by the cases that narrowly construe it except for the Queensland case of Boyd v Sandercock, which is a very, very narrow construction of the provision. 

So there is another aspect of this which is - it is not only a question of the position taken by the respondent but in New South Wales this is a line of cases that has been worked out and it has operated effectively and we say that the court was correct to a certain point and then it fell into error, which was the error that I was about to come to.

FRENCH CJ:   Is there any significance for your construction on the words in parentheses in section 43(1), “including proceedings on appeal”?

MR GAME:   Well, yes, your Honour, but those words – there used to be a section that defined the courts and then - I cannot remember which particular amendment that brought it into parentheses - but, yes, your Honour, if it includes proceedings on appeal it is going to include cases where there has been an appeal where a court has fallen into error.

Now, I think that that amendment came in with the Crimes (Sentencing Procedure) amendments in 1999, which was the second group of amendments.  So it goes local court, then general courts, then into the crimes sentencing procedure ‑ 1986, 1988, 1989 and then 1999 is the events.  Your Honour, the other thing is this, that there is a – and again I think it is sufficiently played out in the judgments and the courts’ reasons, but in the Northern Territory there was a very specific instance of this where the decision in Siganto effectively overturned a line of cases, including the very case Melville which was then reopened in similar circumstances to this.  I should mention there is a Western Australia case of Wallam where the similar consideration – there was a split court.  What I am saying is the issue has arisen on appeal as a real issue so, yes, we do, your Honour.

But where we say that the court fell into error in the judgment ‑ and if you look at page 507, paragraph 50, it appears that the genesis, if there be an error as we assert, that the genesis of the error is in the Crown’s submission in the third last line in paragraph 50.  Now, then if one looks at 61 at page 510, the court accepts the broad construction and the court appears in the second sentence to accept the submission that we put.  But then paragraph 63, and a test repeated – and we have set them out in our hand‑up submissions today at paragraph 5, it is those passages at 63, 73 and 93 – but they adopt a test of whether or not it was open for the court to impose such a sentence.  Now, that is actually the language of appeal, ironically.  It is the language of latent error in appeal and it is really the language of the fourth category of House v The King.  The earlier part of paragraph 63 is also of significance because 5(1), we submit, that it is not the same question under a sentence appeal, under 5D appeal.

So I am going to backtrack for a moment.  If you go back to the resentence of Justice Johnson in the first court at pages 326 and 327, so his Honour rejects discretionary considerations, and then at 327 ‑ and the critical paragraphs are 165 and 166 where the non‑parole period on count 2 goes from four to six and that is a Muldrock error ‑ involves a Muldrock error ‑ and then 166, the non‑parole period – and this is the most important one – count 4 goes from five to 12.  The Court of Criminal Appeal specifically held that 166 was wrong and they specifically held that at page 513 at 72.  So what ‑ and if one is ‑ ‑ ‑

CRENNAN J:   May I take you back to 63 in the Court of Criminal Appeal in the pluralities decision?  You said they were using the language of appeal, but are not those members of the Court of Criminal Appeal saying no more than we accept you can have a species of error which is an error in reasoning because of all the prior cases about breadth versus narrowness, but to attract the jurisdiction under section 43 you also need to show that the sentence imposed was wrong – calls for the imposition of an amended sentence, otherwise the jurisdiction is not attracted.

They are not saying anything other than that, are they?  They are not saying you have to show the sentence is manifestly excessive, they are just saying you have to show in addition to that particular species of error that the sentence imposed is wrong or erroneous, whatever word – and, therefore, calls for correction.

MR GAME:   It depends, your Honour, what they mean by “open to impose”.  There are strong indications that they really did mean that the Court could have imposed it because if they meant that it was the proper sentence then all of grounds 2 to 4 in the grounds below and what I just read to you were meaningless because the Court was actually upholding the appeal having regard to what they said.  Not only that Muldrock applied mandatorily but that to the extent that you departed from the standard non‑parole period you had to justify it and you had to say specifically where it fell within the range.  So they were kind of elaborate errors. 

What I am saying is this, that if the Court meant what your Honour is putting to me, then that does not sit with the way in which they had read the judgment which was that the judgment had material error in at paragraph 72 to 76 and 166.  But secondly, at that point, the question of discretion would become rather important because it is not the same thing as an appellant’s appeal, which is why I said that it is a mistake to, as it were, lead them.

Now, if one looks at – if I just take your Honours to a couple of other paragraphs to support what I say about this.  If one looks at 73 – I should also mention, although transcripts of exchanges would record – are not necessarily a great guide – but there is an exchange between me and the Chief Justice at 440, lines 15 to 25.  One can see there that his Honour the Chief Justice is putting to me at line 22 the very proposition which is picked up in the judgment.  It is not as if this just emerged.  This was something with some care about what one meant by the words was being addressed in the submissions.

If you look at paragraph 73, then at 93 – sorry, I should have said no lesser sentence is warranted is the language of an appellant’s appeal and we saw that in 63.  Then 73, the language, last sentence, 42 “could have imposed” and then, similarly, at 93:

applying correct principles, could have imposed –

Then at 98, applying the “intuitive synthesis” could have imposed – but the discretion in taking out the Muldrock errors has never really come into it.  As I say, if it was, in fact, the case that you came up with the same sentence regardless of the Muldrock errors then – and I put this to the court below, it turns the appeal process in – and I am using strong language, but I will say it anyway, a solemn farce because the appeal was upheld in the first instance for reasons that included the health but, very importantly, from the paragraphs we have looked at was based on what the Court strongly thought was a failure to apply Way.

BELL J:   Mr Game, the Director’s appeal was brought conventionally against the asserted manifest inadequacy of the sentences.

MR GAME:   That is right.

BELL J:   Following the decision of this Court in Carroll, the Director filed a notice articulating specific reasons, as it were, by way of grounds, if you like, supporting why that conclusion was to be drawn.

MR GAME:   Yes.

BELL J:   A difficulty with the construction for which you contend, given that you acknowledge that it cannot be, as it were, a proxy for an appeal, is that the Court of Criminal Appeal concluded that the Director’s challenge of manifest inadequacy was made good.  In coming to that conclusion, and considering specific challenges to the approach taken by the primary judge, the court reasoned in a way that Muldrock subsequently showed to be wrong.  But how, in a process that is not an appeal, does one unscramble that egg and say that the conclusion of manifest inadequacy was tainted by the Muldrock errors, such that it produced a resentence contrary to law?

MR GAME:   The very short answer to a question that has a number of aspects to it is that we say error of law, with respect to the application of the correct principles concerning the standard non‑parole period, affected – forgetting about the principles about Crown appeals for one moment – the outcome in the way that I have shown it affected the outcome because the court ought to have applied that proposition in sentencing.  But there is a distinction between upholding the appeal and the sentence that is imposed. 

So that when you look back at paragraph 92 that may be saying would not have led to the Crown being dismissed altogether, shall I say.  That is one construction of what is being said – altogether as in it would have been appropriate, whatever the sentence was; it was appropriate to uphold the Crown appeal.  Now, if it means it was appropriate to uphold the Crown appeal and impose the sentence that was imposed then why is the court then asking itself questions about whether it could have been imposed and how does that logically sit with what actually happened?

BELL J:   Can we put to one side, for the moment, the reasoning of the Court of Appeal?

MR GAME:   Yes, your Honour.

BELL J:   Can you just identify – consistently with your acceptance that the section 43 application is not a proxy for an appeal – how in the circumstances of this case one would reason to a conclusion that the orders of the Court of Criminal Appeal involved the imposition of a penalty, contrary to law, taking into account that in upholding a Crown appeal it had regard to considerations of sentencing principle which were wrong?

MR GAME:   Yes, your Honour.  The way we put it is that the judgment of – shall I say the resentencing which picks up the ideas in the judgment itself, but the resentencing exercise was attenuated by legal error.  If the penalty is affected by that legal error then we say we have got through the first – applying Ho, we have got through the first phase of section 43 – full stop.  We say that is all we need to establish and that one is then into section 43(2).

We say that is consistent with – actually, the cases have gone a lot further than this. They have gone into things like errors of fact that were not drawn to the judge’s attention and other evidence, so that what we say is that our bottom – shall I say our position is – and when I say the record, in New South Wales the recorder does include the remarks on sentence because of section 69 of the Supreme Court Act.

We say that if there is error of law on the fact of the record and, including the sentence remarks because they are part of – they are part of the record because of section 69 of the Supreme Court Act – they are not part of the record because of the District Court Act which would not include the remarks on sentence.  The rules would say that it is not the sentence.  We say the record, including the reasons ‑ if there is an error law which can be shown to affect the outcome, then you have a penalty that is contrary to law.

BELL J:   How can it be shown to have affected the outcome?  If the outcome is an outcome that is not contrary to law and the exercise is an evaluative one, how can it be shown that the application of wrong sentencing principle affected that evaluative exercise?

MR GAME:   But, your Honour, we say that is a very short walk because it was in purported application of that wrong principle that the Court purported to apply those two sentences that we just saw.

CRENNAN J:   But that means that every sentence which follows an error of reasoning in relation to correct principles, in every one the penalty can be taken to be affected by that error.  That is true, is it not?

MR GAME:   That is true, your Honour.

CRENNAN J:   So you really get into the territory of a general right of appeal because every House v The King error on that analysis would attract the jurisdiction of section 43.

MR GAME:   No, your Honour, because we say that what the provision is getting at is at patent errors, so that one has to, as it were, put aside the idea of appeal and just look at how the section works.  Let me give a kind of colourful example about Muldrock, say ‑ ‑ ‑

CRENNAN J:   Patent error in reasoning or a patent error in result and outcome?

MR GAME:   Patent error in outcome demonstrated by the reasoning in the sentence, and if you do not go to the reasoning in the sentence then you are going to have a tiny, weenie little class of cases, quite different than what one has seen in – and one really is confronted with the proposition that going back to Ho all of these cases were wrongly decided.  Now, just one thing I should mention about Ho is although in a sense it was obiter, it was not really obiter because it was the thing that guided what would happen next because the Court said, but you can go back to the District Court and make this application to have taken into account the lost days, and the lost days kind of case, you could not bring that within because there is nothing unlawful about that sentence, and there is nothing unlawful about slips, so you would not be picking up the things that were originally in mind in 100HA of the Justices Act, which was slips in the Local Court.

BELL J:   Why would one not take into account in the proper construction of this provision the matters to which Justice Johnson directed attention respecting the statutory rights of appeal?  Why would not one take into account the slip rule and conclude that section 43 is serving a function distinct from the slip rule and distinct from the various rights of appeal for which provision is made by statute?  That being what you might characterise as a relatively narrow power for the Court to correct a sentence that – I am sorry, a penalty that is contrary to law or, in circumstances where the Court has failed to impose one that is required by law.  Why would one not construe it in that way?

MR GAME:   Well, one has to concede that is a construction that may have been open but in the question of, shall I say, choices between constructions, now for almost 25 years, a construction has been adopted which gives effect to at least the proposition I am putting which is, legal errors in reasoning that affect the sentence.

FRENCH CJ:   But you still have a right of appeal after the penalty is reimposed, either the Crown or the applicant ‑ ‑ ‑

MR GAME:   Quite, that is ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ and that is subsection 5 ‑ ‑ ‑

MR GAME:   Yes.

FRENCH CJ:   Does not that tell you something about the scope of the procedure and while I am on that, can I just draw attention to subsection (2) and the rather summary proceeding which it seems to contemplate.  I compare that incidentally with your motion and the orders you sought in that at 335 of the appeal book, where you wanted the Crown appeal to be reheard.

MR GAME:   Well, my response to that, your Honour, is the passage that I took you to in Erceg, which is that if you reopen - take the example of the wrong – so say a fine was imposed but the statute said in these circumstances there has to be a sentence of imprisonment, you are going to have to consider the whole thing all over again because you are now talking about different considerations in sentencing, so the factors that were relevant to the sentence as it was originally argued. 

So my point is that what happens on the reopening is entirely dependent on the nature and significance of the error and that one gets no joy at all from identifying the errors such as mechanical, or an integer of the sentence, or simple or technical; none of those things catch the idea.  The idea which is consistent through these cases is patency of the error, whether or not that patency appears on the record because apart from Boyd v Sandercock, there has been a ready assumption that one can go back to the judge and actually correct things, including the prosecution, including the prosecution to the jeopardy of the accused person, or the offender, which is the Western Australian cases.

BELL J:   So on this analysis, one could go to a District Court judge, following a sentencing, not the judge that imposed the sentence and draw to attention that the judge had, in sentencing, had referred to Way and invite another judge to resentence, taking into account all the matters bearing on the exercise of that discretion because there was an error in the application of sentencing principle, resulting necessarily in the imposition of a penalty contrary to law.  That is your argument, is it not?

MR GAME:   Yes, your Honour, but it is entirely discretionary.  If I could put a different example which picks up the same idea - if you were sentenced in the Dubbo court the day before Muldrock was handed down and you went back to the magistrate or back to the judge and said, “Sorry, Muldrock was handed down yesterday”, we say both section 43(1) would be engaged and we say that would be an appropriate case in which to exercise discretion.

The unusual thing about this particular case was that this was a Crown appeal and it was a Crown appeal heavily built on, apart from the mental health issue, Muldrock errors.  This was quite a special situation.  I do not know whether your Honours have picked this up, but Mr Achurch applied both for this and an inquiry.  There were two documents, but there was one – he applied for both, but the court listed this for hearing first. 

Then much later, after a decision in Sinkovich was overturned, the court held you could make an application for an inquiry.  So that is actually how this - he applied for both things, but it happened that much later in Sinkovich it was found that people in this position could apply for an inquiry.  So historically that was the circumstance ‑ ‑ ‑

KIEFEL J:   Was that in part because they could not reopen the Crown appeal?

MR GAME:   I do not know.  No, not really, your Honour, but that may be a discretionary factor.  The reason was that within the language of the provision the error was satisfied the words were a mitigating circumstance –so the onerous nature of the sentence and the fact that you may be entitled to a lesser sentence was held to fall within the language of the inquiry provisions, which are in the same legislation, and it is a case called Sinkovich.  So there have been twists and turns in what has happened.

BELL J:   Mr Game, can I just raise with you another difficulty.  You say that what makes this distinctive is it was a Crown appeal where a deal of emphasis was placed on the error in applying Way, subsequently seen to be wrong in light of Muldrock.  I suppose another view might be that simply looking at the sentences that were imposed having regard to the facts and to a contention that House v The King error of the fourth kind was plainly established.  It is the difficulty of quarantining this process so that it is not an appeal and yet taking into account errors involving the application of principle to the weighing of the competing and often conflicting factors that result in the sentence.

MR GAME:   Yes, but your Honour, we say that question goes entirely to discretion.

BELL J:   What was wrong with the decision here not to exercise the discretion?

MR GAME:   No, but your Honour, the court did not exercise the discretion for – we would accept that the court could exercise its discretion and decline to intervene for ‑ if, say, presented with the complexity of the case, but that was not the way the court approached it.  In fact, really the reasoning of the court was that the situation was exceptional, but they did not intervene because of what we say is the second limb of the test that they applied, which was that the sentence could have been imposed and “could have”, we submit, means ‑ adopting the language of this judgment – is, in effect, could have in the sense that a lawful exercise of discretion in sentencing, one could have arrived at that outcome.  But as I said before, we say that leaves out altogether what might be described as the discretion.

BELL J:   But the only way to feed that in is to have the court on the 43 application determine not only that there are errors in the application of sentencing principle, but then work through the exercise of was the penalty imposed one that was contrary to law in that a proper weighing of the competing considerations bearing on the arrival of the appropriate sentence would have produced this result, might have produced this result.

MR GAME:   The way we put it is that it did affect the outcome, and that once you have got it did affect the outcome, you are through section 43(1).

CRENNAN J:   Well, we are back to the proposition that if you make this sort of error of reasoning, it must affect the penalty.

MR GAME:   Well, your Honour, not ‑ ‑ ‑

CRENNAN J:   You must get an erroneous penalty for the purposes of section 43, because your real objection – are you saying you would not be objecting to the decision of the Court of Criminal Appeal if they had in fact reopened under section 43 and then said, “As an exercise of our discretion we will not be resentencing”?

MR GAME:   Well, it would depend on their reasoning, but hypothetically yes.

CRENNAN J:   Well, of course.

MR GAME:   Hypothetically, yes, your Honour.

CRENNAN J:   Yes, I am putting that in the abstract to you, of course.

MR GAME:   Yes, your Honour, but when I say “did affect the outcome”, I really mean that when one looks at those paragraphs, 165 and 166, one sees that the application of the erroneous principles relating – and that was accepted by the court, the Court of Criminal Appeal did actually affect the sentence that was imposed and, shall I say, it would be a very curious outcome if it did not because the appeal was upheld on the strength of that plus issue about the medical evidence.  I should say also that the whole of the argument about objective seriousness, which was in grounds 2 and 3, was dealt with, with grounds 4 and 5 which were the – so the whole of the argument was dealt with as a composite argument about the role of the standard non‑parole period, and that fed into the manifest excess question.  So that one only had left the medical – the ground concerning excessive weight given to the medical ‑ ‑ ‑

KIEFEL J:   Are you saying that given the application of Way in light of Muldrock it must have affected the outcome of the Crown appeal?

MR GAME:   Yes, your Honour, that is what I say.

KIEFEL J:   How do you establish that?

MR GAME:   Just by showing your Honours the paragraphs in which the Court – if one goes to the judgment below, if one looks at page 304 ‑ ‑ ‑

KIEFEL J:   Page three eight ‑ ‑ ‑

MR GAME:   Page 304, sorry, your Honour.

KIEFEL J:   Page 304.

MR GAME:   This is the point I was just making about how the grounds are dealt with together.  Then one gets to 76 to 78 is the decision, and those paragraphs were found to be erroneous by the Court of Appeal, and then one goes through to the resentencing and it is 165 and 166 that show how it affected the outcome.

KIEFEL J:   Well, could you explain to me how the application of Way feeds into the resentencing?

MR GAME:   Yes, your Honour.  Say one looks at 166, now the standard non‑parole period for that particular offence is 15 years and, in effect, the court held that it was mandatory to apply it because this had been a plea of not guilty, and that one had to say where it fell within the objective range of seriousness.  So one takes 15 years and the court, as I said, at 513, paragraph 72, the second court held that that paragraph 166 was erroneous, and one can see that because what has happened is they have taken 15 years and they have knocked a bit off for mitigating circumstances.

BELL J:   Amongst other things dealing with count 2 the court did have regard to the fact that the primary judge had imposed a non‑parole period of four years.  Now, put Way and Muldrock to one side, the primary judge had no power to impose that sentence.

MR GAME:   That is correct, but that was a ground that was the ‑ ‑ ‑

BELL J:   But the point, Mr Game, that is being raised with you is the difficulty of extracting from reasons which show, in step‑by‑step fashion, the various errors which the court considers the primary judge committed in arriving at the ultimate sentence for each of the counts, and then some consideration obviously of the overall sentence having regard to considerations of totality.  It is the difficulty of unscrambling that to come to the conclusion that the imposition of the penalty was contrary to law.

MR GAME:   Your Honour, the only unscrambling – and perhaps if I could just take your Honours to 513, paragraph 72, which is where the court accepts that that error is at paragraph 166 – but the only unscrambling is the acceptance that in the upholding of the appeal section 54B was given a mandatory application that can be seen to have affected that sentence, because it was ‑ ‑ ‑

BELL J:   I am sorry, which sentence are you talking of?

MR GAME:   No, I mean sentence of imprisonment ‑ paragraph 72, 513, the last sentence of paragraph 72.  So what I am saying is that that error is a very high level error.  It is right there at the point when you impose the new sentence.

BELL J:   A higher level error respecting count 2 is that a sentence was imposed for which – that was contrary to law, by the primary judge.

MR GAME:   Yes, but there is a high level ‑ ‑ ‑

BELL J:   What one finds in the Court of Criminal Appeal is recognition of the evident fact that the earlier court had stated and applied sentencing principles, later shown to be wrong.  That is a different thing to determining how that affected the conclusion.

MR GAME:   I accept it is a different thing.  But our case is that – we put this – I have put it more than once – that it is a very short walk in this case because of the centrality to the – if one put it crudely in terms of years, the standard non‑parole period when one looks at 166 has had a big effect on getting to that 12 years because that is what they are saying.  That is what is, in fact – one cannot ignore, we say, the words of those paragraphs.

We say the same thing in respect of count 2.  The error about the fixed term was kind of just subsumed.  It was ground 1.  It was just subsumed in the other grounds.  That was not determinative.  His Honour said that he would, as it were, take that on board as a subsumed aspect of the case.  When one got to the manifest inadequacy ground, that also was very powerfully informed by the standard non‑parole period in the analysis that occurred.

So it is at that second step we say – and we also say this – and I may have said this before.  We say that that is why it makes sense to construe the “could” in the judgment as meaning what they say.  They mean what they say because what is being said is it could fall within a range, not that it is the appropriate sentence.  When one comes to 99 which is the paragraph that – we say one has to read 99 in the light of the analysis that has taken place before, but also informed by the fact that back in paragraph 63 we saw that a Crown appeal and an offender’s appeal were, as it were, treated as if they were the same thing, namely, was a lesser sentence warranted in law.

FRENCH CJ:   Can I just take you back for a moment to the text?

MR GAME:   Yes, your Honour.

FRENCH CJ:   Section 43(2) says:

The court may reopen –

I think you have spoken of discretion earlier.

MR GAME:   Yes.

FRENCH CJ:   If you are a primary judge looking at an application under 43 in respect of a sentence you have just imposed, on whatever construction you take of 43, it covers a subset of things which could be the subject of an appeal.

MR GAME:   Yes.  No doubt about that, your Honour.

FRENCH CJ:   So you would contend that even on your construction of 43 – the broad construction – a primary judge could say, well, even though this falls within the power that I have under 43 to reopen I am not going to because it is better argued on an appeal.

MR GAME:   Yes, no doubt.

FRENCH CJ:   What kind of limiting principle about the application of 43 properly informs that discretion?  

MR GAME:   What informs the discretion is – part of the answer is that the complexity of the issue and the appropriateness for it to be dealt with on appeal inform that – there is no doubt it affects the discretion.  Can I just – I will not take your Honours to the cases but if you look at Staats and Melville, one will see that – and Siganto - there was an ongoing debate about what was going to happen if Siganto - and the court could reopen – so that is an example where a court on appeal is aware of the problem but goes on anyway.  So, yes, I accept clearly that discretion will include this is an appropriate matter for appeal.  As I said to Justice Bell a moment ago, the curiosity of this case, this was a case on ‑ ‑ ‑

FRENCH CJ:   That is the problem.  When you get to a Court of Appeal there is nowhere else to go subject to the very narrow window of special leave.

MR GAME:   Yes, well, one of the things that informs this is cost and expense and so if you have, shall I say, a large number of legally aided clients such as this one was then the idea of putting on 20 or 30 special leave applications is practically impossible from a financial perspective.  It is just terribly – so that, in terms of cost and expense although it may not appear to the court apparent that - there are competing considerations in cases like this as to whether or not this would be an appropriate vehicle.  As I say, application for inquiry was made at the same time but that has complexities as well because it gets referred back to the – a single judge has to consider it, then they have to decide to send it back to the Court of Appeal to be – so, there are, if I could put it colloquially, there are pros and cons in the end but not for what ‑ ‑ ‑

KIEFEL J:   Mr Game, sorry to interrupt you, the discretion in “may reopen” in section 43(2) might also be informed by a view on the part of the court that the error of law, the penalty that was imposed was contrary to law does not make any difference, that there would be no difference.  Is that not what the Court of Appeal has done here?

MR GAME:   Your Honour, we say no for the reasons that ‑ ‑ ‑

KIEFEL J:   Do you not have to build your argument that it failed to exercise its discretion on the words “may reopen”?

MR GAME:   Yes, your Honour, we say that they did not even get to subsection (2).

KIEFEL J:   They did not reason through subsection (2) at all?

MR GAME:   We say that the whole thing erroneously fell at the first hurdle.  We say ‑ ‑ ‑

FRENCH CJ:   You say they wrongly construed subsection (1).

MR GAME:   That is right.  We say they never got to subsection (2) at all.  They did not reopen.  They did not consider – it is clear we would – I am sort of repeating myself there.

KIEFEL J:   But even if they did not refer directly to subsection (2), is it not open to – is not the inference open that they considered that the error would not have made a difference?  Therefore, there was no point to reopening.

MR GAME:   That is true.

CRENNAN J:   Nothing to be corrected.

MR GAME:   If there is nothing to be corrected then that would have informed the ‑ ‑ ‑

KIEFEL J:   Is that not effectively what they have said?

MR GAME:   I have tried to explain reasons why that is not what they said, both contextually with respect to that which occurred before and to the actual words they use in the judgment and to that exchange with the Chief Justice where this specific way of looking at the case was confronted.  Your Honour, if you really did not get to 519, and we think the sentence was appropriate, then you clearly have not engaged the discretion, because you would have to go back and say well, what do you do about the mental ‑ ‑ ‑

CRENNAN J:   Why is that not tantamount to saying the penalty imposed was not erroneous, therefore, section 43 was not attracted?  There is no requirement for resentencing here.

MR GAME:   Your Honour, I do not know what to say.  Paragraph 63, when the court aligns the offender’s appeal with the Crown appeal, we say that what is happening is that the court is really saying in those passages could such a sentence be imposed, and that is what they mean at 99 when they say it is appropriate.  Otherwise, the whole of the analysis between 63 and 98 does not make a lot of sense.  If you did really do what they did at 99, you would actually have to engage the discretion and you would have to look at the mental health issue in a different way.  You would have to go back and say well, what do we do about ‑ so it would be different, we say, and it would throw in stark relief what happened in the first instance because there was something very discordant about the idea that it was upheld on the basis of something that then did not affect, in a quantitative way, the outcome.

FRENCH CJ:   Incidentally, you could – and back again at the level of the primary judge; I agree, except that there are special issues where we are dealing with the Court of Criminal Appeal, but a primary judge could reopen to fix up an error of a kind which went to a condition of power to impose a particular penalty but otherwise leave in place reasoning which informed the penalty imposed, which is said to be informed by some erroneous principle other than the error which he or she has fixed up.  Then you have still got a right of appeal, have you not, under subsection (5) to deal with that other aspect?

MR GAME:   Yes.  So you would not go back to the Court of Criminal Appeal and say, “By the way, you also mucked up how you dealt with the mental health issue”.  That is why it is not a rehearing in that sense.  I do not want to underplay that because, as I say, the error might be a small error or it might be a very large one.

A couple of things about slip rules and the like:  there is a slip rule now in the Court of Criminal Appeal rules, and it came up in Green v The Queen in the second judgment.  It is in rule 50.  I could provide it and give it to the associates afterwards.  There is a slip rule which is quite broad that enables you to go back to the court.

In courts such as the local court there are not slip rules in respect of sentencing errors of this kind.  We can find slip rules in the Civil Procedure Act but there does not seem to be any slip rule that applies in the District Court to criminal proceedings either and there is nothing in the Criminal Procedure Act.

Now, if one looks at the kinds of cases, such as failure to take into account other custodial history, Act dates, material matters not brought to the attention of the court, including exposure to higher penalty, if one takes the narrow approach of the provision or slips in reasoning such as difficulty in working out what the non‑parole period, which is the facts of Erceg, none of those things would be brought within the operation of the provision if narrowly construed, yet they have all been treated as things that are the appropriate subject matter of it.

So one would end up with, on the record, a sentence that could not lawfully be imposed, and for the reasons that Justice Kirby, joined by Chief Justice Gleeson, gave back in 1995, the section does not say “a sentence that in law could not be imposed” or words that ‑ I think the words he used were ‑ I will just go back to those words, does not say “imposed a penalty that is not provided by law” which is what one would call a narrow construction of this provision.

The reference to Green in which the slip rule was considered is 2011 NSWCCA 71 and it is rule 50C and I will give that to the associates.  I was also going to say this, that it is a very different line of territory but when one ‑ in cases about overturning previous cases ‑ but some of the considerations in cases such as John v Federal Commissioner of Taxation, namely, the fact that the principles have been worked out over a line of ‑ that is at 166 CLR and the passage is ‑ and there are recent judgments of this Court that have dealt with it, but these cases have been worked out over a line of cases and they have worked.

BELL J:   One observation would be that courts have spoken in terms of broad or liberal construction of the provision in cases involving an issue about disqualification periods in relation to driving offences.  I think in Finnie, Justice Howie was concerned with the apparent error of the failure to take account of the pre‑sentence custody.  Those raise ‑ ‑ ‑

MR GAME:   That was eligibility of parole in that case ‑ ‑ ‑

BELL J:   All right.  Yes, but you understand ‑ ‑ ‑

MR GAME:   Yes, your Honour.

BELL J:  ‑ ‑ ‑ what I am raising with you.  There are those lines of cases which on a very strict construction would still not come within the terms of section 43 and then one gets to the proposition that you are advancing that any House v The King error is susceptible of correction under 43 and that is a very different proposition.  One does at some point have to grapple with the text.

MR GAME:   I am deliberately not adopting the latent error aspect of ‑ the last aspect of House v The King.  We say that the error must be an error that is patent.  An error that is – that the whole idea behind the provision is it is an error in the process which is patent and observable to the sentencing court itself, whereas ‑ ‑ ‑

BELL J:   But a failure to take into account a sentencing consideration under 21A would surely be a patent error?

MR GAME:   Yes, your Honour, quite.  That is the language of Ho but say one – may I give an example ‑ a mandatory obligation is to take into account assistance given.  Say it was modest but overlooked, then we say you could go back before sentencing judge and have that corrected, taken into account and we say this line of cases supports it.

BELL J:   That would mean that any failure to advert to a factor of aggravation or mitigation under 21A on the face of it would display error, would it not?

MR GAME:   No, your Honour.  I am deliberately choosing something that really is very obviously something that has to be dealt with on sentence because you have to nominate that you have given a discount for it.

BELL J:   But how does one distinguish that from the failure to take into account as a factor to the extent that it is known to the court, specified in 21A?

MR GAME:   Well, if that error was, shall I say, observable on the record, then in theory you could go back before the judge.  We say yes, and we say the cases actually – as I say, Finnie, Justice Howie goes even further and a lot further.  We also say that it is not necessary for our argument but the issue about going outside the record seems to be – when I say, going outside the material that was before the court is the issue confronted by the Western Australia and the Queensland cases.

For the purposes of our argument we do not need to answer that proposition at all because the material is before the Court.  But we would say if necessary that the idea of it being contrary – a sentence being contrary to law, because you are going back to the original court, because you are exercising a potentially original jurisdiction, original jurisdiction by which I mean sentencing jurisdiction, there would not be any, shall I say, reason of principle why one should exclude cases of the kind such as the Department of Motor Transport discovering that the sentence was not a sentence that could be imposed on that particular individual.  But we do not need to argue that proposition for the purposes of this case.

GAGELER J:   What about simply a relevant consideration that was not in fact drawn to the court’s attention?  How do you deal with that?

MR GAME:   Well, discretion may be one answer to it but, as I say, your Honour, the only argument that I need to succeed with is an argument about errors of law on the face of the reasons in the sentence.

GAGELER J:   But that is because you somehow read on the face of the record into this provision or want to confine your argument to a subset of the operation of this provision without examining its broader operation on the construction for which you contend.

MR GAME:   It may be that I have to accept that that failure to take into account a consideration would be something that could fall within the provision, but was your Honour’s example a failure to take into account a consideration that was not brought before the court?

GAGELER J:   Yes.

MR GAME:   Well, it seems very doubtful that that would be in its broad terms caught, yet that is the very circumstance which was upheld in Shortland v Heath and Traeger in Western Australia, so I think I must answer that yes, that is caught within.

Now, a distinction is sought to be drawn by our opponents about the Western Australian cases and the Queensland cases on the basis that in the Queensland case the sentence that was imposed was already in the higher range, but that was just a matter of serendipity.  The case was decided on the basis that you could not have regard to the other material that was not brought before the court, not the serendipitous outcome of the case.  So those cases, we say, are in direct conflict with each other, but as a matter of history, if one traces those cases through one sees that Ho has informed much of the reasoning in the other cases in the other States, certainly the later Western Australian cases, although Shortland v Heath came before Ho.

BELL J:   Can I just bring you back to the text and to another argument that the respondent raises, and that is as to the significance of the inclusion of subparagraphs (a) and (b).  If your contention is right and any error in reasoning flows through to the penalty, why does one have the distinction between the correction of a penalty that is contrary to law and the correction of a failure to impose a penalty that is required by law?

MR GAME:   Well, I would have to accept that is a consideration against the argument I put, but that is an observation that has been made in the cases, so it is not as though the courts have not been alive to that issue, but what is really contemplated by (1)(b) is an absence of doing something that one is obliged to do.  So (1)(a) can be read in the way that we put and has ‑ ‑ ‑

KIEFEL J:   But, does (b) suggest as more likely a construction of (a) that a penalty that is contrary to law means one that could not lawfully be imposed, and if that is the case one that could not lawfully be imposed is one that is, relevantly, one that is not within a range.

MR GAME:   Well, I think that is what the Court of Criminal Appeal was thinking in this case, which was that since they thought that it was within a range therefore it could lawfully be imposed.

KIEFEL J:   That seems to be the effect, but they have not expressed it quite in that way.  They talk about the application of correct principles, but that seems to be the effect of what they have come to.

MR GAME:   Yes.  We say that is erroneous because whether or not it is within a range is just a way of detecting error, whereas you have already got error, we say, in the actual expression of reasons, so you have already got – if you are talking House v The King ‑ ‑ ‑

KIEFEL J:   But (a) does not talk about error.  It talks about a penalty that is contrary to law, which is the conclusion reached.

MR GAME:   Yes, right, that is true, your Honour.  But the way the section has been read is that it imposed a penalty – imposed contrary to principles of law.  That is the way in which it has been construed by the cases.  Section 43(1)(b) will pick up things, for example, if one failed to disqualify a driver when there was a mandatory disqualification together with some other penalty.  But we submit one can read section 43(1)(a) broadly, still giving work to do in 43(1)(b). 

One may have noticed that the second reading speech is read one way by Justice Kirby in Ho and the same second reading speech is read in a completely different way by Justice Johnson in this case.  As I said, Chief Justice Gleeson agreed, and it was meant to be applied in that case and that decision has been applied consistently since.

BELL J:   Just on that aspect of your submission, I understand the significance you place on the history respecting the interpretation of this provision and its predecessor and, for that matter, similar provisions in other States.  One does see something of a flavour in this decision – that is, the decision the subject of this appeal – of concern that the lore has developed at some remove from the text.  One sees that, perhaps, in the joint judgment at paragraph 22.  It is more clear in the statements of the Chief Judge at Common Law and Justice Johnson.  It just seems to me that that might somewhat weaken your recourse to principles of the kind stated in John relating to this Court.

MR GAME:   Yes, your Honour.  The court was complaining about the fact that they did not have a contradictor is really what was the subtext.

BELL J:   We are concerned, Mr Game, with the correct construction of the provision and here there ‑ ‑ ‑

MR GAME:   But there is no notice of contention and there has never been an articulation of what it is that is said is wrong about the Court of Criminal Appeal’s decision in a clearly articulated way.  It has never been said those cases are wrongly decided.  The case is not sought to be saved on the basis that the reasoning of the court was, actually – and sometimes it is, but sometimes it is not.

KIEFEL J:   But this Court has to construe ‑ ‑ ‑

MR GAME:   Quite.

KIEFEL J:   ‑ ‑ ‑ the provision to ‑ ‑ ‑

MR GAME:   I understand, your Honour.

KIEFEL J:   So there is a possibility you might end up with a narrower view.

MR GAME:   Quite, your Honour.  I understand that.  But, can I say this – and it is not a point that we have emphasised a lot but it did arise in the Court of Criminal Appeal.  The legislation has been in place now since 1986 in various forms.  It has been amended in 1988 or 1989 and then brought into the consolidated Crime (Sentencing Procedure) Act in 1999 after the important decisions.  So there is some weight, but not excessive weight, to be given to the principle of construction that it has been amended in relevant ways, not immaterial ways, in the knowledge of the decisions that have applied it and has been such things as specifically addressing which courts it applies to have been dealt with explicitly in provisions in later times.

FRENCH CJ:   We are concerned here with decisions in New South Wales.

MR GAME:   Quite, your Honour.  Yes, your Honour.  So, what I am saying is – so, anyway, I do put some weight on that principle of construction which is we have had it for 25 years, it has been amended in relevant times, and this is not just one or two decisions, it is a course of decisions.

FRENCH CJ:   Just testing it a little coming back, I think, to a point that had been raised with you by Justice Bell relating to 21A of the Crimes (Sentencing Procedure) Act and the aggravating and mitigating factors, so on your construction a primary judge could deliver sentencing remarks, impose sentence, then counsel for, let us say, the accused, or the convicted person, stands up and says “Your Honour has failed to make any reference to the fact that the officer was a person of good character.  I invite you to reopen under section 43”, that being a mitigating factor to be taken into account under 21A(3)(f).

MR GAME:   Well, potentially, yes.  Could I give an example which makes it not look so silly?  You failed to have any regard to the fact that there was a plea of guilty.  That is the efficacious thing in that it is identifiable, the statute says what percentage discount you get at what particular time, so if was an early plea and you ‑ ‑ ‑

FRENCH CJ:   So you say it is an error for failing to comply with 22?

MR GAME:   Yes.  You must give a 25 per cent discount if it was entered in the Local Court.  That is the effect of the statute and the rules.

GAGELER J:   But that would fall within 43(1)(a) even on the narrow view, would it not?

MR GAME:   I do not think so, your Honour.  I do not think so.  That would not fall within it.  But, as I say, and one can dream up kind of difficult examples both ways, but all of the examples involving slips of the kinds that we saw in the cases – not all of them, but many of them would not be amenable because they are lawful sentences.  Not taking into account that 16 days in custody that is still a lawful sentence, not taking – a mistake about the custodial history, a mistake about other periods of non‑parole and so forth, all of those sentences would be lawful sentences, and slips such as occurred in Erceg, and it was a mighty big slip in Erceg, that would not be an unlawful sentence.

In fact, Justice Sheller in that case dissented and said, “I say there should be a declaration that the words meant what they said when the judge said the non‑parole period is one year, four months” when the judge thought he meant one year, four months on parole.  So that case would be a lawful sentence.  So there is life in the reading that Justice Kirby gave to the second reading speech and, again, we have it but we have not put it before the Court, in the second reading speech there is reference to the fact that in Local Courts there were time limits so that this would be a mechanism whereby you could go back and correct errors - for example, failure to take into account a plea months or years later.

But one of the other things though is that because of the wholly discretionary nature of the provision, people just – if it is an appeal, people do not – judges will not accept applications that are dressed‑up appeals.  The discretion is a powerful aspect of the provision and why would one have a discretion if it was just to pick up unlawful sentences.  Why would one not be obliged to correct an unlawful sentence?  We say that the discretion in the provision gives life to the broad interpretation. 

I mean, another example is the judge says, “I find special” – in New South Wales there is a thing called special circumstances and if you do not get it you have to get a set non‑parole period that is 75 per cent – “I find special circumstances because of this, this and this and the sentence is X”, so that the sentence does not comply with the finding.  That is not an unlawful sentence but clearly the ultimate sentence does not manifest the judge’s reasons.  Again, on the narrow construction, that is one that you would not be able to bring back before the judge. although in a sense, it may have just been a mechanical calculation that was incorrectly made.  Those really are the submissions that I wish to put, if the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  Mr Babb.

MR BABB:   Thank you.  Your Honours, focusing on the text and the structure of section 43 the respondent submits that the scope does not encompass, as my learned friend would submit, all errors of a House v King quality.  My learned friend says I eschew latent error but that is just a matter of convenience in terms of his argument because latent error highlights the weakness in the argument, in my submission. 

Now, in terms of the text, firstly, section 43(1)(a) refers to a penalty that is contrary to law and it indicates that it is the penalty rather than the reasons and the reasoning behind the penalty that are the focus of the section.  There is a clear distinction between error in the penalty and error in the reasoning.  Some errors in reasoning and in the process of reasoning do not result in a penalty that is contrary to law at all.  Conversely, penalties may be contrary to law without any error in the reasoning process.

That wording is consistent with a narrow construction of section 43 and what it applies to.  The second point that we make has already been raised with my learned friend by the Court and he really did not have any answer, in my submission, to the structure of subsections (a) and (b) and how they sit with a broad construction of section 43 that would encompass all and any errors in the sentencing process.  The discretion cannot be the basis for limiting it, in my respectful submission. 

The point raised by your Honour Justice Gageler in terms of a relevant consideration not put before the Court – to take that example up, if it was solely dependent on the exercise of discretion it could be raised numerous times before the court of initial jurisdiction before different judges.

In relation to Shortland where it was said by my learned friend that there it was taking into account a consideration that was not before the court, that is quite different in that that is looking at subsection (b) in that there the basis for the court’s reasoning was that the court had:

failed to impose a penalty that is required to be imposed by law.

That requirement is an absolute, regardless of whether the material was before the court or not, and the fact that there had been a prior conviction for a like offence meant that there was a mandatory disqualification period and it was a subsection (b) case as opposed to a subsection (a) case.

GAGELER J:   But as I understand your submissions on subsection (a), you would also accept that there would be circumstances in which a fact is not brought to the court’s attention and the sentence imposed in the light of that fact can be said to be contrary to law.

MR BABB:   In narrow circumstances where it is – it does not require any redetermination of the sentence.  That is my submission, your Honour, and the example is the case of Ho and that was the case that your Honour Justice Bell was thinking of where there was some six days of pre‑sentence custody that had not been considered in terms of the imposition of the sentence when on the all ground appeal in the District Court a sentence of four months was confirmed.

BELL J:   Unless on a strict view the penalty was not one contrary to law.  It was contrary to well‑settled sentencing principle but, as Mr Game submits, if “contrary to law” is to mean not lawfully capable of imposition, then a Ho case would not be covered.

MR BABB:   That is quite so, your Honours, and it is clear that that is one very available interpretation on the section.  When one looks at section 43(1)(a) and the focus on penalty and its context in the whole section, the extremely narrow view, as the Court of Criminal Appeal noted, both in the joint judgment of the Chief Justice and Justice Garling and Justice Johnson, has some real attraction.

GAGELER J:   To accept your submission, do we need to hold Ho to have been wrongly decided?

MR BABB:   No, your Honour.  Ho was obiter only in that the ultimate decision was that the statutory review for prerogative relief would be declined on the basis of discretion in that it could go back to the initial sentencing judge who could exercise section 43, and in any event, the references there to a broad construction do not go outside of what I am proposing in my focus on correction as opposed to redetermination because there it was purely identifiable, there were six days of presentence custody and there would be no redetermination required in any way, no need to take into account the competing factors that one takes into account in the complex interrelationship of sentencing.

FRENCH CJ:   Sorry, so far as (1)(a) is concerned what case over and above that of a penalty that is not authorised by law do you say is brought within that paragraph?

MR BABB:   Well, your Honour, I submit that only those matters where it is a pure correction, that is, an example being presentence custody.

FRENCH CJ:   I am just trying to link this up to the text of “contrary to law”.

MR BABB:   Yes.

FRENCH CJ:   What meaning do you give to “contrary to law” over and above the meaning “not authorised by law”?

MR BABB:   Your Honour, I have drawn on the extrinsic material in the second reading speeches in accepting that it might extend ‑ ‑ ‑

FRENCH CJ:   Can you just give me a construction?

MR BABB:   Yes.  Look, it is difficult to, within the term “contrary to law”, to neatly fit in the presentence custody example.

FRENCH CJ:   It seems to be a vessel which has picked up a lot of barnacles over the years.

MR BABB:   It has, it is lore, l‑o‑r‑e, instead of looking at the text.  Looking at the section, the Court should take into account the division heading, and the division heading says that the division is dealing with the “Correction and Adjustment of Sentences”, and section 43 is the only section within the division, and the Interpretation Act (NSW) incorporates the division heading as part of the Act.  In my submission, correction of a penalty is a distinct process from redetermination of the penalty.  What is sought here in relation to Muldrock error is redetermination of a penalty, correction involves only adjusting the penalty taking into account the error without re‑determining the sentence in any way.

It is generally not possible in relation to the sentencing process to single out and amend a significant feature of the sentence and leave the remainder of the determination unaffected.  The interrelatedness of the various considerations in sentencing in instinctive synthesis just does not allow that to occur, except in those examples where the error is isolated and is a specific integer, for example, presentence custody, for example, misinformation about the expiration of parole.  Looking at the New South Wales cases, they are all, in my submission, in the limited scope of technical errors that lent themselves to correction as opposed to redetermination.

FRENCH CJ:   Let us take a simple case.  The judge applies a backdating by reference to time spent in custody but by reason of a miscalculation is short a month in the backdating.  Is the result a sentence, a penalty contrary to law and, if not, how do you fix it?

MR BABB:   Focusing on correction, it lends itself to correction rather than redetermination.

FRENCH CJ:   Yes, but the word “correction” only appears in the heading.

MR BABB:   Yes.  No, it does not – it does not easily lend itself to the term of penalty contrary to law.

BELL J:   Did Justice Johnson, in his review of the statutory context, include consideration of the slip rule as it applies in each of the jurisdictions?

MR BABB:  Excuse me for one moment.

BELL J:   Mr Game’s submission is that provision is made under the Criminal Appeal Act rules but he questioned the slip rule in the District Court.

MR BABB:   No.  Justice Johnson’s consideration of the relevant statutory provisions is at appeal book 529, paragraph 137.  He considers appeal provisions as opposed to the slip rule.

FRENCH CJ:   Of course, an appeal can be disposed of by consent if there is an obvious error, can it not?

MR BABB:   Yes, and expedited in order to do so.  An example of that, one would have thought, would have been Melville in the Northern Territory where they convened the Court of Criminal Appeal to try and use the equivalent of this provision but said, “Well no, it has got to be the court that imposed the initial decision so we cannot do it”.  One would have thought the simple approach would have been to instantly allow a ground of appeal and deal with it on appeal as opposed to remitting back to a single judge.

FRENCH CJ:   So, can a consent appeal – a disposition – be dealt with, in effect, on the papers in New South Wales, subject to announcement in open court of the result?

MR BABB:   Absolutely, your Honour.  No reason why not, with the consent of the parties?

FRENCH CJ:   Yes.

MR BABB:   Yes.  To interpret section 43 as broadly as allowing - encompassing all errors in the sentencing process would override and radically alter the appellate structure in New South Wales.  It would also override the principle of finality in a very extended way and a way not done in the New South Wales cases.  If I could just look briefly at the facts that have been considered in the New South Wales cases in relation to - the first decision considered by the Court of Criminal Appeal of Petrou and they noted at paragraph 26 of the judgment that it was to “correct a technical error which had led” to the imposition of a “head sentence being one which could not lawfully be imposed”.  That would be something covered by our construction. 

In relation to the matter of Ho – looked at in the Court of Criminal Appeal at paragraph 29 – six days pre‑sentence custody.  In relation to the matter of Finnie – alleged backdating error even though the court found there was no backdating error at all.  Justice Johnson, in taking up this point of what do the New South Wales cases actually say about the breadth of the rule, correctly says at paragraph 152 and following, page 532 of the appeal book, that whilst there is reference to a broad construction, when you actually go to what is happening in the cases and the examples that the cases use in terms of the broad construction, it is clear that they are not broad and they echo a relatively narrow group of cases. 

He, there, cites the example that Justice Howie gave in relation to Finnie and where a factual error may be able to be taken up.  This is at appeal book 533:

A not uncommon example would be where the failure to take into account the existence of a particular traffic conviction resulted in the court failing to impose the disqualification period mandated by statute –

Classic example, falling within 1(b) and, similarly, in relation to Meakin, at paragraph 154:

Thus a sentence that is greater or less than that prescribed will be a sentence imposed that is ‘contrary to law’.  For example –

Again:

high range PCA, when the offence was a mid or low‑range –

So, they are narrow examples. 

BELL J:   Unlike provisions for appeal, section 43 is not limited as to time ‑ ‑ ‑

MR BABB:   No, or leave.

BELL J:   ‑ ‑ ‑so that your submission respecting finality might, on a view, gain some force, absent reading section 43 in accordance with its terms as providing a narrow remedy, and perhaps one reason for conferring a discretion is that in the case, for example, of the failure to impose a penalty required by law on an application brought by you it might be that the Court in discretion would not permit the application there having been delay so as to prejudice the respondent to the application even though it was accepted that the error was there.

MR BABB:   Which was what did happen in the case of Denning so there application brought by the Crown four days before the expiration of the non‑parole period to amend and extend the non‑parole period, and there although there was a majority and minority judgment based on where the discretion was exercised, all the judges agreed that the discretion should be exercised not to adjust in that case.

FRENCH CJ:   Is (1)(b) a carve‑out from (1)(a) or a separate category?

MR BABB:   We say it is a separate category that then highlights that (1)(a) does not extend to all errors, as my learned friend would say.

FRENCH CJ:   If you got mandatory minimum, for example, you do not impose the mandatory minimum.  That would fall within (1)(b), would it not?

MR BABB:   It would.

FRENCH CJ:   But the lesser sentence is one not authorised by law because you are required to impose something higher.  So one might say it seemed to fall within (1)(a) if that is the proper construction of (1)(a).

MR BABB:   Yes.  While I am on the decision of Meakin at appeal book 533, my learned friend said that you should get some – pay some currency to the way that the section has been interpreted.  Now, the section has not been interpreted broadly in the way that my learned friend has suggested.  That is clear by the extract from the decision of Meakin at appeal book 533 paragraph 154, middle of the quotation from the case of Meakin:

As I have discussed, the effect of the authorities is that s 43 looks to the outcome of the proceedings.  It is the sentence imposed which must be ‘contrary to law’.  That is, there must be an error in the sentence imposed with the consequence that some different sentence is required.

So, in my submission, subsection (1)(a) does not enliven any jurisdiction without a determination that there was an error in the sentence imposed with the consequence that some different sentence is required.  My learned friend’s submission that you somehow would put some credence in the authorities this just clearly shows that the authorities are not against my proposition of the narrowness of the section.

CRENNAN J:   Are you saying that that is because whatever is said, rhetorically if you like, about breadth versus narrowness, when you look at the facts the real question that seems to be addressed is whether or not the sentence could lawfully be imposed?  So that in Melville, for argument’s sake, when it goes back before Justice Kearney, it is not just error in reasoning, but the other factor that the sentence was higher than would have been warranted absent that error in reasoning.

MR BABB:   Yes, and there, your Honour, if there is any case that goes beyond the bounds of what is permissible, in my submission, it is Melville.  What had to happen in Melville, the brevity of Justice Kearney’s reasoning belies how complicated a process it is to separate out that individual feature and determine – he said, well, 12 months off the head sentence, six months off the non‑parole period without really going into the fact that what was happening there, as would have to happen in this case, is a full re‑determination of the sentence.

CRENNAN J:   Well, this gets back to your point 6 I think in your hand‑up, which seems to be a narrower reading of section 43 than that adopted by the Court of Criminal Appeal in paragraph 67 on page 511.  So are you contending that there is something wrong with the reasoning that there are possible exceptions?  Are you saying that in the Court of Criminal Appeal the result as it happens is correct, but there is something wrong with the reasoning to the extent that it says, “We are adopting the broad approach and we are detecting an error in reasoning”?

MR BABB:   It was broader than any of the other cases have gone in saying that this re‑determination could fall within the application of section 43.

CRENNAN J:   So paragraph 6 of your hand‑up is your primary position?

MR BABB:   Yes.  I also submit that when reading the text of the section that subsection (4) of section 43, “Subject to” the following subsection “nothing in this section affects any right of appeal”, it clearly shows that this section was not intended to cover the full gamut of appeals as it would if it applied to all errors in the sentencing process.

Section 43 cannot, in my submission, be applied to Muldrock errors.  The Court of Criminal Appeal did not, as my learned friend submits, require that the appellant establish that the sentence was manifestly inadequate.  It is clear that Muldrock error itself is not sufficient but what needed to be shown in addition was that the error resulted in a higher sentence than was warranted and my learned friend ‑ ‑ ‑

GAGELER J:   The court then was permitted by law.

MR BABB:   Yes, and was permitted by law.  Yes, thank you, your Honour.  That is an important distinction.  My learned friend has taken you to references where the Court of Criminal Appeal referred to the sentence being open and that it could not have been imposed but, with respect, these expressions refer to the fact that in order for a penalty to be contrary to law, it is not sufficient to show that some lesser penalty might have been available.  It must be shown that a lesser sentence was impermissible and another way of saying, it must be shown that the error led to the imposition of a higher sentence than was permitted.  It must be shown that a higher sentence than was permitted was a result of the error, otherwise it cannot be said that the penalty was contrary to law.

Now, that was the approach adopted in the present case.  The Court of Criminal Appeal accepted that Muldrock error had been demonstrated and my learned friend has taken you to paragraph 70 to 73 in their decision, but they found that the sentence was not higher than was appropriate. That conclusion took into account a proper assessment of the objective criminality, the lack of contrition and the limited prospects of rehabilitation and all the other factors are relevant to a reconsideration of the sentence, and it was a finding that absent Muldrock error the sentence imposed was not higher than was warranted, or as the CCA expressed it, and it is important to go to paragraph 99 of the judgment of the Chief Justice and Justice Garling at appeal book page 519.  That really puts into context what the Court of Criminal Appeal has done:

In our opinion the sentencing judge erred in his approach to sentencing such that the jurisdiction of the Court of Criminal Appeal under s 5D of the Criminal Appeal Act was enlivened.  Further, the penalty imposed . . . was appropriate and thus not contrary to law within the meaning of s 43(1)(a) of the Sentencing Procedure Act.

Now, that is supported by the reasoning that the Court of Criminal Appeal undertook immediately prior to that and they worked through this particular offender and the objective seriousness of the offending and all the relevant features and found that it was a planned and organised criminal activity, committed for financial gain, that he “employed others” and that was at paragraph 75, appeal book 514, that “stored drugs” at a location “occupied by one of his “employees””, again at paragraph 75, that they were “indicia of drugs supply and sale” with a “drug ledger”.  The drugs were “guarded by several dogs and the drugs were concealed in a rather sophisticated way”.

The Court noted at paragraph 95 that, “The applicant had showed no contrition,” in that there was a trial and there was a plea of not guilty and he was convicted after trial.  That was at paragraph 95, and they determined there were limited prospects of rehabilitation at paragraph 95, and that must have been the case when one considered that, as the Court of Criminal Appeal took into account, the past criminal record included three armed robberies, that:

He had been released from his latest period of imprisonment for less than 12 months before he embarked upon the commission of these offences.

That was at paragraph 80 of the Court of Criminal Appeal’s considerations.  The Court of Criminal Appeal properly looked at what had been considered by the initial court in terms of the errors regarding the objective seriousness of the offending, then they clearly survived the Muldrock decision and were relevant to the Court of Criminal Appeal to take into account. 

The sentencing judge’s sentence had been manifestly inadequate, as was found by the Court of Criminal Appeal, because the objective seriousness was erroneous, and the sentencing judge placed this into an exceptional category case that simply was not warranted on the facts of the case.

CRENNAN J:   Well, is this going beyond correction?

MR BABB:   My submissions, your Honour?

CRENNAN J:   The exercise that was undertaken by the Court of Criminal Appeal to which you have just been – to which you have just been giving some consideration.

MR BABB:   Yes, such an exercise highlights that what is required on the broad view is redetermination, resentencing.  It goes well beyond correction and it cannot be the case that in each instance where section 43 is sought to be enlivened that a court has to wade through the full sentencing process in order to determine whether to exercise the discretion to ‑ ‑ ‑

FRENCH CJ:   That is what the Court of Criminal Appeal effectively did in this case, did it not - paragraph 98 at page 518 in the joint judgment?

MR BABB:   Yes, they did.

CRENNAN J:   So their starting point, which was not contested, you would submit, was incorrect, that is to say, we will adopt a broad reading of section 43.  Is that what you are saying?

MR BABB:   Well, the broad reading of section 43 did not entail redetermination in this way, no other ‑ ‑ ‑

KIEFEL J:   That is a point you make at paragraph 6.51 of your written submissions that:

No previous decision had applied the correction procedure to effect a complete reconsideration of the sentence.

MR BABB:   Exactly.

KIEFEL J:   You go on at paragraph 6.52 to say that:

However, it may have been more correct to hold that the Muldrock error was not amenable to s 43 correction at all.

Is that supported by paragraph 6.65, is that what you are saying?  It is not amenable to correction therefore it is not within section 43?

MR BABB:   Yes.

KIEFEL J:   That is probably a notice of contention point though, is it not?

MR BABB:   I did not consider it in that way, your Honour, but that has certainly been my submission and my submission was clear from the submissions.

KIEFEL J:   You are saying the Muldrock error, of its nature, would require a rehearing and really should not have been considered in relation to section 43?

MR BABB:   That was our submission initially before the Court of Criminal Appeal, too.

GAGELER J:   Does it amount to saying that any Muldrock error could not result in a sentence that is outside a permissible range?

MR BABB:   It could, but it needs to be determined on appeal, your Honour.  It does not lend itself to section 43 correction.  The appeal provisions and the review provisions under the Crimes (Appeal and Review) Act ‑ ‑ ‑

KIEFEL J:   You would have to reconsider the objective seriousness of the offence to apply.

MR BABB:   Yes, you would have to.  By its very nature, if it is giving too much significance to what we now know should only be a guidepost then it really involves a complete redetermination of all the interrelated factors.

GAGELER J:   I can accept that, but does your submission – this is perhaps a new way of putting it – involve an acceptance that there will be some legally impermissible sentences that will not fall within section 43(1)(a)?

MR BABB:   In my submission, section 43(1)(a) does not cover any error.  It is narrower than that and it only is available where it is truly a correction and not a redetermination.  So to that extent yes, I cannot envisage – unless your Honour has a more concrete example – a Muldrock error that would be able to be redetermined under section 43.

KIEFEL J:   At paragraph 6.63 you refer to the decision of Sinkovich, which Mr Game referred to, which now holds that Muldrock errors can be the subject of an inquiry.

MR BABB:   Yes.

KIEFEL J:   Would that be open to the appellant in this case?

MR BABB:   Absolutely, your Honour.  One would think that when one looks at ‑ ‑ ‑

KIEFEL J:   Is that a matter mentioned on the application for special leave?

MR BABB:   I would have to check, your Honour.  I will have to check that and get back to you, your Honour, if I can be permitted to do that.

BELL J:   One matter that just might be noted is if one goes to section 21A of the Sentencing Act, subsection (1) notes that the matters referred to in the subsection are in addition to matters “required or permitted to be taken into account by the court under any Act or rule of law”.  So the Act contemplates that in addition to statutory directions respecting sentencing there are rules of law which a court may take into account in sentencing, and that may be a reference to some principles which have crystallised, as it were, for the purposes of sentencing, into a rule of law. 

Nonetheless, when one comes back to 43(1) the difficulty is in seeing that the words “a penalty that is contrary to law” includes consideration of a penalty imposed following a process of determination that failed to take into account a rule of law in the way provision is made for that under 21A.  Your point is that the emphasis is on the penalty contrary to law.

MR BABB:   Yes, it is, as opposed to the reasoning.  Thank you, they are my submissions.

FRENCH CJ:   Thank you, Mr Babb.  Yes, Mr Game.

MR GAME:   I may have been elliptical but at the special leave I said events had overtaken this in some respects.  But what actually happened was we notified the Court of Criminal Appeal before any of these were heard.  There were the two applications and the court listed this for hearing first, but then Sinkovich came up later but the Crown had indicated that they opposed either in this case.  So there is correspondence to the Court.  There is no consent.  One can take it that they are opposing the application for an inquiry as well.  There is no joy for us in that proposition. 

CRENNAN J:   You mean they did not just indicate that it would be a contested matter?

MR GAME:   They indicated to the court early on that we would oppose any application made under Part 7.

CRENNAN J:   That may mean we are going to contest the application.  It does not necessarily, implicitly mean that the application lacks jurisdiction, does it?

MR GAME:   But what actually happened was they opposed all of them, the lot, on jurisdictional grounds.  There was a ruling by Justice Latham and then that was appealed.  I actually argued the appeal in Sinkovich and Justice Latham’s decision was overturned.  The judgment in Sinkovich itself indicated that there were discretionary features to the granting of an application for review.

So our position is that we take it that even though Sinkovich has been decided, we will not be getting any agreement from the Crown for this case to be referred to court, which has not yet happened.  That application is still pending.  It has never been determined.  But that is not our doing.  The court simply decided to deal with this issue first and - it was before the Court of Criminal Appeal.  I wrote a letter on 16 April 2012 outlining what the situation was with respect to these cases.  All the application – these applications were reopened, the inquiry was opposed and appeals out of time were opposed. 

So every form of review of these decisions was fought at every turn so, except as a general point about consent, there has been a full‑pitched battle in respect of every single case that has – there may be one or two exceptions.  So there has been no co‑operation, shall I say, from the Crown or the Attorney‑General’s Department, and we would expect a fight with respect to our application for an inquiry if it came to be determined, which we would press on with that application.

Now, I did not eschew House v The King fourth category for convenience.  I eschewed it because I said that there had to be patent errors, and that has been the position – again if you look back that is the position that I took back before the Court of Criminal Appeal.  This formulation open, I should have mentioned that Justice McClellan also used the formulation of open.

In Mr Babb’s argument, he admitted of a series of cases that would fall within this section that could not fall within this section on the narrow construction.  In fact, none of them, almost, could fall within.  The first one he admitted of was the Shortland example.  That is an error of fact of material not put before the court that would happen to expose you to another penalty.  He said that was a (1)(b) example.  So, there is an example of a (1)(b) example where they are saying you can go outside the record to look to correct a factual matter that exposes you to another penalty.  So, that example, itself, could not work.  He says, Ho, Erceg and Finnie are not wrongly decided but none of those examples pre‑sentence custody, misinformation, none of those are unlawful sentences.  Not one of them.

BELL J:   Mr Game, can I just get your assistance with – if one goes to 21A there is a mandate that in determining the appropriate sentence for an offence the court is to take into account the matters in the section, and those matters are in addition to matters that the statute contemplates may be required by a rule of law to be taken into account.  Would, in your submission, the principle that a court reflects a period of pre‑sentence custody, wholly referable to the offence for which the offender stands for sentence, by backdating or reducing the sentence by the amount of the pre‑sentence custody, would that answer the description for the purposes of section 21A(1) of being a rule of law?

MR GAME:   No, your Honour.  It is a factor.  Sometimes it happens and sometimes it does not.  All that has happened ‑ ‑ ‑

BELL J:   What answers the description of a “rule of law” for the purpose of 21A(1)?  It is something apart from statute.

MR GAME:   Yes, this was actually, again I will not go back into the cases, but this is discussed in the Northern Territory cases because there is a consideration of whether or not it has to be a statutory thing or could it be a common law thing and they came down on the side that it could be a common law thing.  So that there was a rule of law, shall we say, that was an aggravating circumstance that the complainant had had to give evidence and that was overturned in Siganto and that would be, shall I say, a rule of law.  That would be formulated ‑ ‑ ‑

BELL J:   That factor would be a rule of law?  I am not ‑ ‑ ‑

MR GAME:   No, all I am saying is that was ‑ ‑ ‑

BELL J:   For the moment, do not trouble yourself with Western Australian legislation, but can you just tell me your submission as to what is embraced by that phrase in 21A(1).

MR GAME:   Exceptional hardship to third parties is a factor that should be taken into account on sentence, but that is ‑ ‑ ‑

BELL J:   Because it is ‑ ‑ ‑

MR GAME:   That has been distilled into a principle of law and it does not appear in that.

BELL J:   Yes.  So that sentencing principles that have crystallised ‑ ‑ ‑

MR GAME:   Yes.

BELL J:   ‑ ‑ ‑ and that are not included in 21A(1) or elsewhere under statute.

MR GAME:   Yes, but the reason I raced off to Northern Territory is just to say that this specific problem has been addressed in the cases.  But this idea of correction versus redetermination, what you actually end up with is governed by subsection (2) in the reopening, and it depends on the extent of the error, so as soon as the Crown says technical error, specific integer, misinformation, and they are all things that they say are saved, none of those things are defining what it is that is brought within subsection (1).  We did not get into subsection (2), and you may have noticed at paragraph 100 the Court said that on their view “tentative” was that you would be bound by the material before the earlier court.

So, that is to say, those factors that might be relevant to discretion might be relevant so that you are actually knocking the thing out before you get to consider that.  We would say – sorry, one thing I should say about Finnie is this – sorry, not Finnie, Meakin – is that the Crown relied quite heavily on that which was said by Justice Johnson about Meakin, but if you look at appeal book page 500, paragraph 36, the Chief Justice and Justice Garling lined up the paragraphs where Ho is applied, and Melville appears to be applied – that is [27] to [29] with [92] - and then his Honour said that that was not to be regarded as the narrow view so that that was just an example that her Honour was giving. 

So that is reading Melville in a different way and Melville is a very strange case about an application for judicial review years later about a mandatory disqualification.  It was one kind of difficulty built on another.  So each of those – we would say the Crown was basically saying you can save Petrou, Ho, Finnie - you cannot unless you construe subsection (1) in a different way.  We say that drives you back to Justice Kirby’s interpretation in Ho.  Just a quick point about the heading.  The division heading is part of the Act, the heading over the section is not and that is section 35 of the Interpretation Act.  The formulation ‑ ‑ ‑

FRENCH CJ:   The division heading is available. 

MR GAME:   The division heading is but not the heading over the section.  That is in section 35.

FRENCH CJ:   Not the section heading, yes.

MR GAME:   The formulation that your Honour Justice Gageler put, we submit that is no different than an appellate idea of latent error than permitted by law, that that drives you into manifest excess or inadequacy.  But that is the same idea.  Those are our submissions in reply.

FRENCH CJ:   Thank you, Mr Game.  The Court will reserve its decision.  The Court adjourns until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 12.13 PM THE MATTER WAS ADJOURNED