Adorjany v The Queen

[2001] HCATrans 19

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2000

B e t w e e n -

LESLIE ADORJANY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 10.52 AM

Copyright in the High Court of Australia

MR J.I. DORIS:   If it please your Honours, I appear for the applicant.  (instructed by Stephen Hodges)

MR D.J. BUGG, QC:   If your Honours please, I appear with my learned friend, MS G.M. O’ROURKE, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J:   Yes, Mr Doris.

MR DORIS:   Your Honours, may I mention at the outset that my friend has indicated to me there was a passage in his response to this application which is not relied upon.  It relates to a factual matter.  If I might indicate that to the Court at the outset.  If your Honours have page 203 of the application book, the last sentence in paragraph 2.1 is not to be relied upon by the respondent.

GAUDRON J:   Yes, thank you.  Now, you need an extension of time, do you not, Mr Doris?

MR DORIS:   Your Honours, yes.

GAUDRON J:   I take it that is not opposed, Mr Bugg?

MR BUGG:   No.

GAUDRON J:   Yes, thank you.  It is not opposed.

MR DORIS:   I am grateful.  This applicant pleaded guilty to an offence of possession of a prohibited import, being heroin; the quantity, in fact, being…..was 29.9 grams in full satisfaction of an indictment which also contained a count alleging an attempt to obtain possession of a commercial quantity, being a quantity which had been imported by a man called Whitney.  The indictment, your Honours, appears at page 30 of the application book.

In the sentence proceedings, the prosecution submitted, notwithstanding their acceptance of the plea to the lesser offence, that this applicant should be sentenced on the basis of an intention to obtain possession not merely of the trafficable quantity, approximately 29 grams in his possession, but of the commercial quantity which was in the possession of his co-accused, Whitney, when he arrived in Australia.

GAUDRON J:   Is that right?

MR DORIS:   Your Honours, the submission is referred to ‑ ‑ ‑

GAUDRON J:   I think the submission was that he should be sentenced on the basis that he was a principal in the plan.

MR DORIS:   That was one of the ways that the Crown’s submissions were put.

GAUDRON J:   That is a different proposition, is it not?

MR DORIS:   It is different in its expression.  My submission is going to be that in the ultimate analysis in this case the judge finding that he was a “participant at a higher level than Whitney” can only have been reached on an implication that she found that he had an intention to possess the commercial quantity imported.

GAUDRON J:   No.  It could have been done on the basis that he was not just minding this small quantity until this other gentleman appeared from Colombia.

MR DORIS:   Your Honour, in the total context of the evidence and the way her Honour approached that evidence at first instance, it would be my submission that the finding made, which is expressed – if I may come to it in a moment.  I want to go to your Honour’s first question first – that he was a “participant at a higher level” necessarily carried that implication.

At page 194 of the application book, in my statement of argument, I refer back to her Honour’s remarks on sentence at page 11 where her Honour repeats a number of submissions - - -

McHUGH J:   I am sorry, page 11?

MR DORIS:   Page 11 of the remarks on sentence.  But, for convenience, I have gathered them, your Honour, at page - - -

McHUGH J:   Yes, I know, but, in future, it might be better if you referred to the application book number rather than judge’s transcript number.

MR DORIS:   Yes.  I was taking your Honours to page 194 of the application book which refers to her Honour’s remarks on sentence.  If I can go back to that, they are at page 146 of the application book.  There, her Honour makes reference to the submissions made in sentence proceedings by the Crown.  Firstly, at the top of the page:

The Crown submits that the prisoner should be treated as having a greater involvement than Whitney, who was a mere courier.  Further, that he should be dealt with on the basis of an intention to obtain possession, not merely of the trafficable quantity, but of the commercial quantity which was in the possession of Whitney when he arrived in Australia.

That, with respect, answers your Honour Justice Gaudron’s question.

GAUDRON J:   Yes, but that is not the basis on which the sentencing judge proceeded, is it?

MR DORIS:   With respect, it will be urged upon your Honours that it must be, firstly, by reason of the severity of the sentence and, secondly, by reason of what her Honour said later in her remarks on sentence at page 150 of the application book, line 45.  She said:

I deal with the prisoner on the basis that whilst unable to determine the precise level of his involvement in this offence, he was a participant at a higher level than Whitney, bearing in mind that the Crown has accepted a plea to the lesser offence.

She then goes on to make what I would contend is a glancing reference to the Di Simoni principle, saying:

The prisoner must be sentenced for the offence to which he has pleaded guilty and no other.  Nonetheless, in arriving at a sentence it cannot be determined isolated as it were, from the totality of the circumstances which bring him before the Court. 

Now, the totality of those circumstances was the importation of a commercial quantity by Whitney.

The first essential contention that I wish to urge upon your Honours’ Court is this:  that, to the extent that those remarks reveal that she implicitly accepted the prosecution’s contention that he should be sentenced on the basis of an intention to obtain possession of the commercial quantity, there is, in the result, a manifest breach of the Di Simoni principle.  That is an aggravated feature.  It was required, of course, to be proven beyond reasonable doubt but if the judge accepted that it was appropriate to deal with him on the basis of an intention to obtain possession of the quantity referred to in the first count in the indictment, then she was sentencing him on the basis of guilt of all the elements of the greater offence to which the prosecution had accepted a plea of not guilty.  We say that the only inference from the gravity of the sentence is that she was sentencing him on that basis.

So far as the judgment the subject of this application, being the judgment of the Court of Criminal Appeal, is concerned, we contend that the court endorsed the outcome, endorsed the approach taken by the primary judge, despite the fact that her reasoning toward the result, which was the eventual outcome, was at least obscure.

McHUGH J:   Yes, but is not the strongest argument against you that as part of its submissions the Crown said that Whitney should have got 12 years apart from his co‑operation and that your client should have got 12 years?  Well, the judge did not give him 12 years; he gave him half that.

MR DORIS:   Well, the head sentence was 10.

McHUGH J:   Was 10.

MR DORIS:   And the minimum term to commence from his first date of going into custody was 6 years and 3 months.  We simply say, your Honours, that that sentence – and it was effectively acknowledged by Justice Grove in the Court of Criminal Appeal – is an appropriate sentence if he is to be dealt with on the basis of an intention to possess the full quantity.  It is a sentence which, taking into account the other features which bore upon Whitney’s sentence, where his Honour Judge Gibson’s original starting point, then made subject to the discount for assistance, was a head sentence of 12 years.  It is in the same bracket, therefore, as the sentence imposed upon Whitney and not in a bracket which would be appropriate were he being dealt with for bare possession of 29-odd grams of cocaine.

McHUGH J:   Yes, but what is the special leave point, even if we accepted what you said?  I mean, this Court does not sit as a Court of Criminal Appeal, particularly in sentence matters.

MR DORIS:   Your Honours, I put it this way:  the matter merits the attention of this Court for two reasons.  The decision at first instance and the decision of the Court of Criminal Appeal preceded the decision of this Court in Olbrich, which dealt with fact-finding in this context.  There was, in the result, in my submission, a manifest breach of the Di Simoni principle.  The fact-finding exercise undertaken by the judge in this case was not sufficient clearly to resolve the application of the two competing principles that apply in cases of this nature.  One of those principles is the “entire transaction” principle which was referred to and articulated by his Honour Justice Wood in the case of Laurentiu & Becheru. 

The other of those principles is the Di Simoni principle which, we respectfully say, should confine the entire transaction principle in the sense that if the urging is made as it was made in this case, sentence him on the basis of an intention to possess the full amount, then the plea should not have been accepted as it was, and the Crown’s case more truly reflected in count 1 should have been pressed.  That is one thing.

In order, in appropriate cases, to strike a balance between what I contend is the confining Di Simoni principle and the broadening entire transaction principle, there has to be a careful process of reasoning engaged in which was not engaged in in this case.  In order to determine which of those two principles should properly prevail, whether the Di Simoni principle, because of the way the indictment has been cast, must confine the entire transaction principle, and, thirdly, that the only circumstances in which the entire transaction principle can impinge on sentence, is where there is an unequivocal and sufficiently sound basis, in other words, beyond reasonable doubt, for findings of fact which implicate the accused in the entire transactions.

Now, those findings must include knowledge of quantity concerning which no express finding was made in this case, no express challenge was mounted to the applicant when he gave evidence at first instance, and they also would, no doubt, encompass evidence to the effect that an accused was either organising, in a precedence sense, the importation, or was a member of a distribution organisation which was to take over the ‑ ‑ ‑

GAUDRON J:   I really fail to see any of this, Mr Doris.  The offence is possession or attempt possession of a trafficable quantity for which there is a penalty of what, 15 ‑ ‑ ‑

MR DORIS:   The maximum penalty is 25 years.

GAUDRON J:   Twenty-five years.  What happens, in the circumstances of this case, is that your client seeks to minimise his involvement on a very serious offence, attracting 25 years maximum penalty, by putting up some account of his being just the dupe of these people in - well, he does not even say that - he knows what he is doing but he is just helping out.

MR DORIS:   In so far as taking possession of cocaine, an unknown quantity is concerned, that is right, and necessarily implicit in his plea.

GAUDRON J:   Yes, and so what he is seeking to do is to minimise his involvement.  His account is rejected.  So he is left to be sentenced on the basis of attempting to possess a trafficable quantity for which the maximum sentence is 25 years, in circumstances in which there is really nothing much to be said in his favour other than he is a family man and a few subjective personal ‑ ‑ ‑

MR DORIS:   Yes.

GAUDRON J:   Well, I really do not see what this application is about, I am sorry.

McHUGH J:   Particularly when the judge said that you cannot leave out his involvement from the totality of the circumstances.  She, no doubt, had in mind that your client flies to Sydney under an assumed name, that he meets Whitney, that they both make phone calls to Colombia, and your client hands over $1,000 to Whitney, to pay Whitney off, takes possession of the substituted trafficable quantity and is then arrested.  Why, in those circumstances, is there some error on the part of the judge?  She said that she was only sentencing him for the offence to which he had pleaded guilty, and no other.

MR DORIS:   Yes.  The perception of error must derive, in my submission, your Honours, from the urgings of the Crown that he should, in effect, be sentenced for the offence in respect of which they had accepted a plea of not guilty.  Those permeate the submissions of the Crown and permeate the summing-up.

GAUDRON J:   Yes, but the trial judge says that is not the way she is approaching it - or the sentencing judge.

MR DORIS:   She says that but perhaps that does not resolve the issue.

GAUDRON J:   The issue is, there was an offence of a serious kind, one sees a count is rejected, not much can be said in way of mitigation of your client.  It is the same as if he had stood there and said, “I ‑ ‑ ‑

McHUGH J:   He was plainly above Whitney.  After all, he directed Whitney, did he not, to make these phone calls that afternoon to Colombia from a public telephone box so that they could not be traced.  In the Court of Appeal, it was accepted on behalf of your client that he went to Sydney with the intention of taking possession of this quantity of cocaine.

MR DORIS:   There is where the real issue lies, with respect, your Honour.  What was accepted on his behalf and is accepted in your Honour’s Court is that he went to Sydney with the intention of collecting some cocaine.  But there is, in my respectful submission, a world of difference between collecting 3-odd kilos of cocaine, which is what Whitney came in with, and about a hundredth of that, 30 grams.  He was sentenced as if he had the intention to collect the whole quantity and the essential complaint here is that that required particular findings of fact to be made which, on the evidence, were not available to the judge.  The rejection of his evidence, to the extent that it was rejected, did not, of course, prove what was necessarily an aggravating factor because of the way the Crown had accepted the plea to the indictment.

GAUDRON J:   Are you raising 235(3)(b) of the Customs Act at all, in this case, Mr Doris?

MR DORIS:   I had sought to raise it but the ground does not appear to me to be fertile, but may I just mention what I wanted to ‑ ‑ ‑

GAUDRON J:   Yes, but I was just wondering if you were sliding into it, in that submission.

MR DORIS:   May I come to it straight away, your Honour?  The issue that is brought up by that particular subsection is one which can reasonably be canvassed once there is a proper approach to fact‑finding and it is plainly, on the face of it, available because of the trafficable quantity and it being a relatively low one at the end of the scale of the trafficable range, which is between 2 grams and 2 kilos.  The essential complaint is that the applicant was denied any realistic opportunity to have his case on that issue considered, and the reasons why are not clear from her Honour’s ‑ ‑ ‑

GAUDRON J:   I do not follow that.  I just do not follow what you are saying.

MR DORIS:   Once the view is taken, as expressed by her Honour, that the sentence cannot be determined isolated, as it were, from the totality of the circumstances which bring him before the Court, what is implicit in that is that the fact‑finding approach dictated by Olbrich has been followed and, therefore, there can be no possible fertility in engaging in a submission to the effect that there was no commercial or sale purpose.  However, what I contend for is this, that if her Honour had exercised appropriate intellectual discipline in her fact‑finding task, then there would have been an opportunity ‑ ‑ ‑

GAUDRON J:   We do not allow appeals on the basis that people should have exercised appropriate intellectual - what was the phrase?

MR DORIS:   I used the word “discipline”, and I certainly meant no offence to ‑ ‑ ‑

GAUDRON J:   Discipline.  If we were to impose such a requirement on counsel in these applications, for example, we would sit, perhaps, once a year.

MR DORIS:   I make the reference simply because, subsequent to her Honour’s remarks on sentence, this Court did give guidance on the approach to fact‑finding in such cases.  Now, just coming back to that subsection, once her Honour had determined to apply the entire transaction

principle, the legitimacy of which in this case we attack, there was really no way she could consider that particular subsection.  We also add this, and I premise this, essentially, on what Justice Kirby said in his dissent in Olbrich, as well as what the majority said in Anderson, that if an accused gives evidence endeavouring to engage the provision, and his evidence is rejected, that is not the end of the matter because possession of a prohibited import does not carry any implicit element or feature that possession is for commerce or sale and, therefore, it is an aggravating feature and, therefore, it is required to be proven to the appropriate standard by the prosecution.

McHUGH J:   But the case against your client on the objective facts are overpowering.  You fly up to Sydney under an assumed name.  You meet the man who brings the cocaine into the country.  You make phone calls to Colombia, from where the cocaine has come.  You pay that man.  You take possession of it.  Now, the inferences that arise from those objective facts against your client are extremely strong.  Your client gets into the witness box.  The judge said he was a glib witness, that he was highly intelligent, articulate and an experienced person, and she rejected his evidence about his story that he was just minding this for Diaz, or whatever his name was.

MR DORIS:   Your Honours, the red light is on.  May I reply to what your Honour Justice McHugh has said?

McHUGH J:   Yes.

MR DORIS:   The inferences, of course, were strong as to his guilt of the offence to which he pleaded guilty, but they were not available as to his knowledge of the quantity in respect of which it was urged by the prosecution, having accepted the plea they did, that he should be sentenced, and that is where the core of the complaint is.  The application of the entire transaction principle must depend on sufficient evidence being there to establish knowledge or participation at a higher level.

GAUDRON J:   Thank you, Mr Doris.  We need not trouble you, Mr Bugg.

In her remarks on sentence, the learned sentencing judge referred to the correct principles and, as was held by the Court of Criminal Appeal, there is no reason to think that those principles were not applied.

Time will be extended for the bringing of this application, but special leave is refused.

The Court will adjourn to reconstitute.

AT 11.14 AM THE MATTER WAS CONCLUDED