Bidmade v The Queen

[1992] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M28 of 1992

B e t w e e n -

GRAHAM HAROLD BIDMADE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Bid.made 1 28/8/92

AT MELBOURNE ON FRIDAY. 28 AUGUST 1992, AT 2.37 PM

Copyright in the High Court of Australia

MR M.S. WEINBERG, QC:  May it please the Court, I appear,

together with my learned friend, MR P.A. COGHLAN,

on behalf of the applicant. (instructed by the

Director of Legal Aid (Victoria))

MR R.A~ FINKELSTEIN, QC. Acting Solicitor-General for

Victoria: May it please the Court, I appear with

my learned friend, MS E.H. CURTAIN, for the

respondent. (instructed by the Director of Public

Prosecutions for the State of Victoria)

MR WEINBERG: If the Court pleases. Could we hand to the

Court copies of an outline of submissions, together

with one page containing section 567A of the Crimes

Act of Victoria.

MASON CJ: Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases. Your Honours will see

that this is, in one sense, an unusual application

in that counsel for the applicant appears before

the Court in support of the conduct of the

Director of Public Prosecutions who brought the appeal against inadequacy of sentence in the first place and contends that the Director of Public Prosecution is, as a matter of principle, able to place constraints or limits upon the apparently

unfettered discretion of the Court of Criminal Appeal

pursuant to section 567A(4).

It is our submission to the Court that the

very clear circumstances of this case were that the
Director of Public Prosecutions initially in his

grounds of appeal attacked both the head sentence and the minimum term. In his written submissions

to the Court he continued to attack the minimum
term by asserting that it was manifestly inadequate

but by express concession to the court in opening

the appeal he abandoned that point and said to the

Court of Criminal Appeal that he did not contend that the minimum sentence was manifestly	inadequate, having regard to the terminal cancer
that the then respondent was suffering and, by the
very clear circumstance that the director confined
his argument to the inadequacy of the head
sentence, our submission is that that aspect of the case throws up the principle that is enunciated on
page 1.

An even worse feature of the case, in our

respectful submission, was the fact that the

applicant was undergoing sentence for some traffic

offences, a total of 17 months, and those sentences

had effectively been made wholly concurrent with

the sentences imposed by the trial judge. When

sentencing the applicant for these offences, the

Bidmade 2 28/8/92

trial judge had considered those matters and made

them wholly concurrent.

The Director of Public Prosecutions did not

appeal against that order at all, although he did

-bring an appeal against another order for

concurrency between the robbery and the false

imprisonment. So he plainly adverted to

concurrency as being a factor to be attacked in

relation to those two sentences but did not attack,
in any way, shape or form, in his notice of appeal

or in his submissions to the court, never raised

the matter of concurrency with the sentences then

being undergone.

MASON CJ: But you are not suggesting, are you, that the

conduct of the director could constrain in any way

the power of the Full Court to impose such sentence

as it thought appropriate in the circumstances?

MR WEINBERG:  We are not submitting to the Court that it

constitutes an express jurisdictional bar per se,

that the director can go into the Court and say to

the court - - -

MASON CJ: But it could not constitute a jurisdictional bar

of any kind, could it?

MR WEINBERG:	Your Honour, it constitutes a constraint in this·sense: if the Director of Public Prosecutions
at trial before the trial judge had made a
concession through his counsel and had said to the
trial judge who was sentencing - the judge, "We
concede that there can be a very large gap between
the head sentence and the minimum term in this case
because of the cancer that this man has", and the
judge had said to him, "Well, I am minded to impose a term of two years on the minimum, do you have any
difficulties with that?", and the director had
said, "No, we have no difficulty." Had the
director then appealed that minimum term, he would
have been thrown out of court on all the principles, all the cases, all the authorities in
this State and every other State now adopted in
this country because by his conduct at sentence he had accepted what the judge was suggesting,
acquiesced in it and then could not appeal.

We say that that principle is no different, in

our respectful submission, to the director coming

to the court, he is the appellant, he is the party,

he is the one who has brought the action, it is an

adversary system, he says to the court, "My

complaint is with the head sentence.". He has a

very specific role to play, a statutory role,

recognized by section 567A(l).

Bidmade 28/8/92

MASON CJ: Let us assume the court had said, "We think that

that is an unreal concession, we are not prepared

to accept that concession."

MR WEINBERG:  It did, Your Honour, it said to the director,

--"We find that an extraordinary concession.".

Mr Justice Crockett did say that in this case.

MASON CJ: Are you suggesting that in those circumstances

the court had no jurisdiction?

MR WEINBERG:  Your Honour is using the words, "no

jurisdiction", and I am not using those words.	I
am saying the court can and ought to have been
constrained in these circumstances and I am not

putting the point as one of statutory jurisdiction,

I am saying, with great respect, Your Honour, that

the court, as a matter of correct principle should not have interfered with an aspect of the sentence

that the director had expressly indicated to the

court he did not regard as being inappropriate; he

being the person who must determine whether he is

satisfied that an appeal should be brought in the

public interest; he being the person who, pursuant

to subsection (1) has that responsibility given to

him and to him alone; he being the only person,

under this statute, who may bring an appeal,

pursuant to subsection (2); he being the person who

is required by statute to cause notice of appeal

setting forth the grounds thereof to be given to
the respondent by serving upon him notice in

writing signed by the Director of Public

Prosecutions personally of his intention to appeal

to the Full Court pursuant to the provisions of

this section.

MASON CJ: But he has done all that. . .

MR WEINBERG:  Yes, Your Honour, he has and he has indicated,

we say, by getting up to the court, that he is not

satisfied that the public interest requires that

that component of the sentence which reflects the

minimum term can be attacked. That is exactly what

he is saying in our respectful submission, when he

says, "I do not contend that the minimum term was

manifestly inadequate or in any other way

inappropriate."

MASON CJ: Have you any authority for the proposition that a

Court of Criminal Appeal is necessarily bound by

the attitude taken by the director at the hearing

of the appeal?

MR WEINBERG:  Your Honour, we have authority for the

proposition, if I can answer Your Honour this way,

that the words which appear in subsection (4) do

not mean what they say. They are not to be read as

Bidmade 4 28/8/92

broadly as though the court is completely at large and shall pass such sentence as it thinks ought to have been passed and I will not cite the cases but

Your Honour will be well aware of the principle.

The courts have stated time and time again that the

_~ourt in resentencing imposes a lesser sentence

because of the double jeopardy component. It does

not impose the sentences it thinks ought to have

been passed, it imposes a lesser sentence because

common law principle has established that those

words must be qualified having regard to the

nature of the Crown appeal, having regard to the

totality of what is involved in this exercise.

In the same way, we say, this is a very

needs no leave of the court, but to balance that process he is required to go through a series of

peculiar provision. A Director of Public

steps and, by necessary implication, we say his

views are ordinarily to be accorded very

considerable weight.

In this case, the Court of Criminal Appeal,

did say - or Mr Justice Crockett said he found it

an extraordinary concession, but then when counsel

for the respondent rose to his feet, he said to

counsel for the respondent, "Well, having regard to

the concession that has been made by the director,

you have a very easy task, Mr Tehan."

Now, on the one hand, the court is asserting

to Mr Bongiorno that the court finds an
extraordinary concession. It said no more about

that. It did not say, "We reject the concession."

It did not say, "We are not going to bound by your concession." It said only, "We find that an

extraordinary concession to make" or, rather, "I

find that an extraordinary concession to make", one

judge.	Mr Tehan rises to his feet, "Having regard
to the concession made by Mr Bongiorno, you have a

very easy task".

MASON CJ: But that is a slightly different point, is it

not, that is a natural justice point?

MR WEINBERG:  It is, it is our third point, Your Honour.

And what we are saying to the court is that if the court is going to disregard what must be one of the

major features of this case, that the director

himself, who appeared personally in this case, has

come in before the court and argued, in effect,

that he is not asking for the minimum term to be

touched, has never addressed the question at all of

the concurrency order made by the judge, neither in
his reasons nor in any argument at all, for the

court then to give a decision which, (a) increases

Bidrnade 5 28/8/92

the minimum term from two years to three years;

then, without any reasons being given at all, makes
the sentences wholly consecutive, rather than
concurrent, thereby effectively increasing the term

from two years to four years and seven months. For

~that to occur without one single word in the

judgment reflecting the director's concession,

reflecting the fact that as a ground of appeal the

concurrency matter was never raised at all - we

say, in one sense, not properly before the court,

because the only ground that the court treated as a

ground at all was that this sentence for these

offences was manifestly inadequate.

TOOHEY J:  Mr Weinberg, I have no difficulty with seeing

this in a natural justice context, I just have some

problem in where the analysis is before you get to

natural justice, when you are dealing with the

power of the court or the extent to which its

discretion is fettered by the way in which the case

has been presented. How do you analyse that?

MR WEINBERG:  Yes, Your Honour, we say this: we say that

although - section 567A(4) is couched in the

broadest possible terms, we accept that. It says

that the court, if it thinks that a different

sentence should have been passed - and could we say

that is not what the section has been interpreted

to mean either, because no Court of Criminal Appeal

in this country, apart perhaps from Queensland, I
think, has ever interpreted a provision of this

kind as indicating that merely because it thinks a different sentence should have been passed it then

intervenes. Every court has interpreted these

provisions as saying, "We must be satisfied that

either the sentence was manifestly inadequate or

that there is some specific sentencing error

shown." So no court has ever construed this

section in its ordinary and natural sense; it has

construed it in the context of what this is.

Then we come to the latter part of the

provision:

including a sentence within the meaning of

this section in substitution therefor as it

thinks ought to have been passed.

No court has ever applied those words in their

ordinary and natural meaning either because every intermediate appellate court in this country does

something different to what the statute says it is
empowered to do; it reduces the sentence which it

thinks ought to have been passed by virtue of

considerations of double jeopardy.

Bidmade 6 28/8/92

If those qualifications which do not emerge from anywhere in section 567A - - -

DAWSON J:  I am sorry, it reduces the sentence but imposes a

larger sentence than the trial judge imposed?

MR WEINBERG:  Yes, but reduces the sentence which it thinks

ought to have been passed. It fixes a sentence
which it thinks ought to have been passed by the

trial judge and then reduces it because it is a

Crown appeal.

DAWSON J: When did it start doing this?

MR WEINBERG:  It has been doing it in .New South Wales for

some years, Your Honour, and it is now

DAWSON J: But in Victoria?

MR WEINBERG: 

- - - doing it in Victoria as well and has

been doing it since a recent decision of the Court
of Criminal Appeal in Victoria, Papazisis,

51 A Crim R 243.

DAWSON J: 

I mean, his jeopardy is no less, he has done the

MR WEINBERG: 

Your Honour, New South Wales has, for a long time, had a principle that you work exactly this

sort of provision in this way: you are satisfied

first of all that there is error, you then work out

what sentence should have been imposed and then you

reduce it to give effect to the fact that there has

been a Crown appeal. So no intermediate appellate

court ever does what this section says in its

ordinary sense it should do because it has

construed the section as being qualified by that

principle which emerges from the very nature of a

Crown appeal.

DAWSON J:  I must say it sounds extraordinary to me.

MR WEINBERG:  Your Honour, it sounded extraordinary to me

when I first heard that the New South Wales courts
were doing it but they have done it on hundreds of

occasions and the Victorian Court of Criminal

Appeal is now doing it, the South Australian Court

of Criminal Appeal is doing it. I cannot speak for

every Court of Criminal Appeal but I can certainly

say it is a well-recognized principle now adopted

by the Court of Criminal Appeal in this State that

you do have regard to that factor and you do not

impose the sentence therefore as you think ought to

have been passed.

TOOHEY J:  Mr Weinberg, are you saying that the courts do

this expressly?

Bidmade	28/8/92
MR WEINBERG:	Yes, Your Honour.

TOOHEY J: In the sense that the court says, "Well, nine

years is an appropriate sentence, this is a Crown

appeal, however, so it will be eight years"?

--

MR WEINBERG:  "We will give you eight", yes, Your Honour.

DAWSON J: And somehow you have been saved from double

jeopardy by that.

MR WEINBERG:  You are mitigated, if you like, Your Honour. Your sense of disappointment at having been - - -

DAWSON J: It is only half a double jeopardy.

MR WEINBERG:  Yes, Your Honour, but that is a principle

which has been adopted by the New South Wales

courts, the South Australian courts, the Queensland

courts and the Victorian Court of Criminal Appeal

and adopted for a long time in New South Wales, now

picked up in Victoria. So that is just an example,

we say, of how an entirely extraneous factor based

upon the construction of the nature of a Crown

appeal has been held to modify or qualify those

words.

Here we have something that is far more

fundamental than that. Here we have a party to the

proceedings, the very person who is solely charged
with looking after the public interest and

determining whether an appeal should be brought,

who is charged with signing those - - -

MASON CJ:  We follow all that and we gather the significance

of it.

MR WEINBERG:  Sorry, Your Honour. So we say there is a

genuine question of construction.

DAWSON J: But you cannot concede the court into a situation

where it does something which is not really open to

it. I mean, there has to be some relationship

between the head sentence and the minimum term.

MR WEINBERG: Yes, Your Honour, there normally does and

normally an increase in a head sentence - - -

DAWSON J: And once you have asked for an increase in the

head sentence the court is bound to look to see if
the minimum term is appropriate having regard to

the increase in the head sentence.

MR WEINBERG:  Indeed, Your Honour, and normally it would

follow that there would be an increase in the

minimum term if there were an increase in the head

Bidmade 8 28/8/92

sentence except, of course, in a case like this

where the courts have long recognized - - -

DAWSON J:  But no concession can concede it out of its duty

to do what it has to do.

MR WEINBERG:  Your Honour, the court in this case increased

the gap between the head sentence and the minimum

term. The relationship initially between the head

sentence and the minimum term was two-thirds. The

trial judge fixed three years with a minimum of

two. The Court of Criminal Appeal, in this case,

increased the head sentence from three to seven and

the minimum from two to three. So when one talks

about the relationship having to be maintained in

some way, the court is, even in its judgment,

recognizing that this is a special case.

DAWSON J:  But it felt that the most it could do was to have

a gap of that length.

MR WEINBERG:	I am sorry, Your Honour, I missed that.
DAWSON J:	It must have felt that the most it could do in

regard to the submissions was to leave a gap of

that length, between the minimum and the term.

MR WEINBERG:  Your Honour, it could have imposed a sentence

perfectly properly of 15 years with a minimum of

two in circumstances such as this, because this man

has - - -

DAWSON J:  If it felt that it was proper to do so but it had

to turn its mind to the problem.

MR WEINBERG:	And one of the things it must have regard to, in our submission, is the fact that the Director of
Public Prosecutions has said to the court, "I'm not
asking you to touch the minimum term. I'm saying,
'Please increase the head sentence, I'm conscious
of the fact that that will -

DAWSON J: That is right and no doubt they took that into

account and that is why they did not increase the minimum term any more but they cannot be conceded

out of performing their duty.

MR WEINBERG:	We are not submitting that they can be conceded out of performing their duty, Your Honour.
What we are saying is that it must be a matter of
the utmost importance in a Crown appeal to consider
what the Crown is saying, what the Crown is asking
for and what concessions the Crown is making.
DAWSON J:	No doubt they gave such weight to that as they

felt they could.

Bidmade 9 28/8/92

MR WEINBERG:  They never adverted to it at all in their

judgment. They told Mr Tehan - as I have indicated

to the Court - apparently indicating they were

going to give it very considerable weight and then
they gave it no weight, it would appear, because at
_the end of the day they ignored it. The Director
of Public Prosecutions - directors, sometimes,

Your Honour, appeal for all sorts of reasons.

Sometimes, for example, there may be a technical

error in sentence and a director may bring an

appeal to correct a technical error. He may not be

seeking an increase and it would be contrary to

public policy, in our submission, for the director

to be, in effect, informed, "If you bring an appeal

for the limited purpose of correcting a technical

error in the sentence, that means everything is at

large and the court will impose - - -

DAWSON J: No, you do not have to go as far as that in this

case. He was asking for an increase in the head

sentence.

MR WEINBERG:  In the head sentence, yes, Your Honour.

DAWSON J: The minimum term has to bear some proper

relationship to the head sentence.

MR WEINBERG:  In ordinary cases, that is so.

DAWSON J: And that is a matter for the court to determine.

Now, he may make a concession and the court may

give that concession weight but that is the most

that you can say that they are obliged to do.

MR WEINBERG:  We say, Your Honour, that if he makes the

concession at sentence, at the first stage, it is
determinative as the courts have looked at the

matter. If he made a concession at first instance

that the head sentence was within range, the court

would not deal with the application, they would

say, "You made the concession, we're not going to

hear you."

DAWSON J: Let me put it to you this way: let us assume

that the court determines that the head sentence

has to be a certain term and they would have to

then look at the minimum term, would they not?

MR WEINBERG: Yes, Your Honour.

DAWSON J: And they conclude that a certain minimum term is

the only appropriate minimum term in the

circumstances which means an increase of the

previous minimum term. Do they then not do what

they think is proper to be done merely because the

director has made a concession?

Bidmade 10 28/8/92

MR WEINBERG:	Your Honour, they note the fact that the director who is charged with responsibility for
this section and this appeal process and who is a
party to these proceedings has not asked them to
touch the sentence.

DAWSON J: But it is the court that has to fix the sentence,

not the director.

MR WEINBERG:  The reason for that proportionality,

Your Honour, as Your Honour will well know, the

reason for the relationship is so that a person is

not undergoing parole for an excessive period.

That just does not apply to a man who is going to

be dead in a year or two years. The consideration

which normally calls for a relationship between the

head sentence and the non-parole period of some

appropriate proportion, as Your Honour well knows, is designed to ensure that a person is not exposed

to a lengthy period of parole. Once the court has

increased the sentence - - -

DAWSON J: What if the director had conceded that six months

was the appropriate minimum term?

MR WEINBERG:  Had conceded that six months was an

appropriate term?

DAWSON J: Minimum term.

MR WEINBERG:  That would have made my argument even

stronger, Your Honour.

DAWSON J: They would have had to have - - -

MR WEINBERG:  No, Your Honour, they would not have had to

reduce it but they certainly could not have, in our

submission, acting property, increased it to four

years and seven months.

DAWSON J: No, do you say they would have had to have fixed

it at six months?

MR WEINBERG: No, Your Honour, what I am saying is this,

that the director is such a fundamental part of

this process that when the director makes no attack

upon a component of a sentence that is ordinarily

as important a consideration as one could
contemplate in determining the outcome of the

sentence. I am not saying the court is bound, I am

not saying - and the court in Halvaso, as the Court

will remember, certainly scotched the notion of

a trial judge as a cipher who, after there is an

agreement between the Crown and the accused, is

simply required to rubber stamp the sentence that

has been agreed on between the parties. I am not

saying that, but I am saying it must be the case

Bidmade 11 28/8/92

that the director's views, the director's grounds

why do we talk about grounds of appeal, why is

there a need for grounds if not to give not only

notice but to set the parameters of the appeal.

DAWSON J~ Apart from the director's concession, do you say

that the minimum term is inappropriate?

MR WEINBERG:  Your Honour, there was nothing wrong with the

initial minimum term.

DAWSON J: No, that is not what I am asking you. Do you say

that the minimum term fixed by the Court of Appeal

was inappropriate?

MR WEINBERG:  I say that having regard to the fact that the director did not think it was appropriate -

DAWSON J: No, putting that aside, do you say it is

inappropriate?

MR WEINBERG:  Your Honour, that is a very difficult question

because what Your Honour is asking me to do is to

say two years was appropriate and three years is
not appropriate and I am not here to argue that

three years is inappropriate and two years was the

only appropriate minimum term. I am complaining

about a misapplication of principle and the

misapplication of principle that I complain of is

that the Court of Criminal Appeal appears to have

given no weight to the director's concession.

MASON CJ:  I think you have made that point.

MR WEINBERG: Yes, Your Honour. The second point is even

more fundamental. How is it that the Court of

Criminal Appeal interfered with the orders for

concurrency made by the learned sentencing judge?

In Victoria, if the trial judge says nothing at all then by statute sentences are concurrent. So there

is almost a presumption that sentences shall be

concurrent unless the judge expressly decides that they should be consecutive. That is section 15 of

the Penalties and Sentences Act.

In this case the trial judge quite

unnecessarily expressly turned his mind to the

matter and said, "I think these sentences should be

wholly concurrent", and made such orders. They
were, after all, traffic offences; they involved

driving without a licence and matters of that kind

- they were Magistrates Court matters - having

regard to all the circumstances, the trial judge

said, "I will make these new sentences wholly

concurrent with the sentences imposed by the

Magistrates Court".

Bidmade 12 28/8/92

The director does not appeal that, the

director does not argue there is anything wrong

with that. Where does the Court of Criminal Appeal

deal with that? It deals with it for the first

time at the bottom of page 33 and the top of page

_.34:

Further, I think it should also be directed that that sentence be served cumulatively upon

any sentence that Bidmade is presently

undergoing.

Your Honours, it has been suggested in affidavit

material that counsel for the applicant, the then

respondent, should have worked out that there was

something going on in Mr Justice Marks's mind

because Mr Justice Marks expressed some thoughts or

comments or disquiet about the concurrency orders.

That does not trigger the power of a Court of

Criminal Appeal faced with one ground, which is

that a sentence is manifestly inadequate, to sweep

aside an order that that sentence, which is itself

the subject of attack, should be not concurrent as
the trial judge ruled but wholly consecutive,

giving no reasons, no opportunity for argument, no

indication that the court was minded to act in that

way and adding a full 17 months on to a sentence of

a man who is in the position of this present

applicant.

If the Court were against me even on the

minimum term point, we submit the Court should none

the less consider the question, the very important

question of principle involved in our second

ground which is: can a Court of Criminal Appeal

properly attack part of a sentence which has never

been the subject - - -

DAWSON J: The inadequacy of a sentence can be dealt with in

various ways and one of the ways is by using

concurrency.

MR WEINBERG: Your Honour, as regards different components

of the one sentence, yes, Your Honour, if the

attack - and it was in this case mounted against

part of this sentence. Your Honour will see, if

Your Honour goes to the grounds - the grounds are

set out on pages 11 and 12 of the application

book and Your Honour will see that there was a

specific ground drawn by the director, ground 5

which appears at the top of page 12 of the

application book.

The background was:

That the Learned Judge erred in that he failed

to order the sentence on the count of false

Bidmade 13 28/8/92

imprisonment or a large part of that sentence

be served cumulatively.

The director identified that point, that there were

two sentences involved here that the court was

-~onsidering: one was for the robbery; and the

other was for false imprisonment.	The trial judge
had ordered them to be concurrent.	The director

attacked that decision specifically by way of

ground.

What the director did not do was attack a

separate order made by the trial judge that some

Magistrates Court should be concurrent in circumstances which produced really a very unjust situation because, of course, the man does not appeal his sentences from the Geelong Magistrates Court, he does not appeal those because they have

sentences that he was already undergoing for

been made wholly concurrent with these sentences;

no point in appealing them. And by the time this

court has dealt with the other matter, without him

being given any notice that the part of the

decision that reflected those sentences was, in

fact, going to be varied, he is months out of time

and, worse still, the order in which he serves his

sentences is such that he is serving only those

Geelong Magistrates Court sentences now so it is

too late for him even to appeal those sentences. I

do not know whether Your Honour has followed what I

have put?

DAWSON J: Yes •

MR WEINBERG:  But there really is a very great injustice

compounded in the circumstances of this case in

r,elation to that second point for that series of

reasons that I have enunciated.	The third point,
Your Honours, is, of course, the natural justice
point.	We do not contend that this was anything

other than an inadvertent misleading of counsel for
the respondent but the fact is when he got to his

feet on the uncontradicted evidence before the

court he was told something like this by the

presiding judge, "Mr Tehan, having regard to the

director's concession, you have an easy task".

Now, that may be facetious, it may be that the

Court will say, "Well, he should not have taken

that as an indication that he didn't have to

address the minimum term or that he didn't have to

deal with the question of concurrency, although

that was not argued, or the subject of the ground

of appeal". And it may be that my friends will

say, "But Mr Justice Marks expressed 10 minutes of

disquiet about the concurrency orders and that

Bidmade 14 28/8/92

should have put him on notice". We say one really

has to have regard to the realities of the

situation. Counsel confronted with a statement of

that kind and the director's concession that he was

not attacking the minimum term and no ground of

_appeal attacking the concurrency orders would be

-entitled to be quite shocked.

MASON CJ:  But you could go back to the Court of Criminal

Appeal on that point, could you not?

MR WEINBERG:  I was expecting Your Honour to raise that

matter and it was raised, of course, in Pantorno's

case by Your Honour and Justice Brennan and in some

cases that might be possible. This was a case

where there were a combination of three matters, in

our respectful submission, two of which certainly,

in our submission, warrant the consideration of

this Court, the High Court. There is a very real

problem - - -

MASON CJ:  Let us assume that this matter stood on its own

for the moment.	You could go back to the Full
Court then?

MR WEINBERG:  Your Honour, if the judgment had not been

perfected and, again, there is a question as to

when the judgment of the Court of Criminal Appeal
becomes perfected, the answer, we would say is

"Yes". Your Honour and Justice Brennan in

Pantorno, we say, took a somewhat broader view of

the circumstances under which one might go back to
the Court of Criminal Appeal than three other

members of the Court did.

MASON CJ:  Yes, because we hold to the view that matters of

that kind ought always to be capable of

rectification by a Court of Criminal Appeal.

MR WEINBERG:	Your Honour and Justice Brennan hold that that, Your Honour.
from determined by the Court and that no more than We say that the question is far
two members of the Court have so determined.

MASON CJ: Yes, but, mind you, if in the end this point

stands out on its own then, of course, this

application could be stood over to enable such an

application to be made to the Court of Criminal

Appeal.

MR WEINBERG:  Unless the Court of Criminal Appeal took the

view that the matter had been perfected and the

court was functus and therefore we would be barred.

We are here, Your Honour, as a matter of some

urgency. We had initially proposed to deal with

this through the panel method but we took the view

that it might be quicker to bring it on having

Bidmade 15 28/8/92

regard to the condition of the applicant, the

medical and physical condition of the applicant, to

bring it straight on before a court of three and

the one thing that we would not want to see happen

is any great amount of delay.

But we submit our first two points both raise

questions of important principle. The Directors of before a Court of Criminal Appeal matters that do not bind the court but do, in practical terms, we

say, require some consideration by the court if the

court is to disregard their concessions, at the

very least, and we say, in the particular

circumstances of this case, if we have to fall back

on that part of section 35A that deals with

particular miscarriage of justice, there was a lot

that could have been said on behalf of this

applicant as to why those Geelong Magistrates Court
sentences should be concurrent. It was never

addressed.

There was a lot that could have been said as

to why the minimum term should have remained as it

was. That was never addressed and it was never

addressed because of an unfortunate comment that

was interpreted by counsel in a way that we submit
was reasonable in all the circumstances of this

case. So we say the case is a proper vehicle for

the grant of special leave and we would ask the

Court to grant special leave to enable those

questions to be determined and we would ask the

Court not to say that the failure to go back to the court on the third ground is a reason for not

granting special leave. Those are our submissions.

MASON CJ: Yes, Mr Finkelstein.

MR FINKELSTEIN:  May it please the Court. Leaving aside the

natural justice point, the third of the points, the	simple proposition that arises on the application	is whether a court, seized of an issue such as an
appeal, can dispose, or must dispose of that issue
or appeal in what the court's view is as to what is appropriate, regardless of the contentions or
submissions of the parties. Or, put another way in
this case, in the case of a sentence which an appellat& court finds has been passed in error, and
therefore must be corrected in some way, whether in
those circumstances the Court of Criminal Appeal,
when it corrects the error, does so having regard
to the dictate of the parties, or having regard to what the court itself thinks is the appropriate
manner in which the error is to be fixed.

TOOHEY J: You express it in terms of "must". It may be

more appropriate to express it in terms of

Bidmade 16 MR FINKELSTEIN, QC 28/8/92

"should". May I suggest, perhaps, some constraint

upon the court to act in the way that it does?

MR FINKELSTEIN:  No, in our outline, I think in paragraph 8,

I refer to it as the duty of the court. That is, ftOwever you identify the duty of the court, which

-in this case is to pass the appropriate sentence,

after the court had determined that the original

sentence was in error, that duty cannot be
circumscribed by the conduct of the parties.

Because it is, in our submission, the court's duty once it finds error - that is, once it finds a

sentence which has not been correctly imposed - it

is under a duty then to impose the correct penalty,

or sentence. To summarize the points that we have

in our outline, the issue comes up in two ways.

The appeal that is brought by the Crown to the

Court of Criminal Appeal is an appeal against a

sentence, and it is clear enough that there is only one sentence. When the court allows the appeal, or

at least finds that the trial judge, the sentencing

judge, was in error, it is obliged to pass the

appropriate sentence, which is what 567A(4) of the

Crimes Act says.

DAWSON J: Apparently it does not, though. It used to, but

it does not now.

MR FINKELSTEIN: So it seems, and certainly I am not that

convinced that the practices described about giving
discounts for having a Crown appeal has become the

practice in Victoria. There is certainly a lot of

Court of Criminal Appeal decisions in New South

Wales that say that that is the appropriate

procedure. Whether it has caught on as

dramatically in Victoria as it has in New South

Wales is something that I doubt, although I

understand that it may have come up on occasion in

the Court of Criminal Appeal in Victoria.

Whatever the appropriate sentence is, and

however the Court of Criminal Appeal fixes the

appropriate sentence, whether it is by giving a

discount because of the so-called "double jeopardy"

principle·by having the Crown present twice, in

effect, or whether you do not give a discount,

however the appropriate sentence is to be fixed,

that cannot be dictated by the submissions of the

parties because it may well produce the

consequence, as we have said in point 9 of our

outline, of further error. The proportionality

between the so-called head sentence and the minimum

sentence, which is a proportionality that the cases sentence. When the court reimposes a sentence,
say should be striven for, is lost if the Court of

whether it does it giving discounts or not, it is

Bidmade 17 MR FINKELSTEIN, QC 28/8/92

reimposing one sentence and it is in the process of
doing that required to deal with all components of
the sentence. It would be inconceivable if a Court

of Criminal Appeal is of the view that a particular

minimum term is inapposite and if imposed would

~onstitute an error in the sentencing process, that

-it must follow that minimum term because a

particular party does not say anything about it.

If it is plain beyond doubt that the minimum term

is inapposite it would be a clear error and, in our

submission, a breach of the duty of the Court of

Criminal Appeal to adopt conduct dictated by the

parties rather than what it itself thought was the

appropriate sentence.

In a sense - and the second way we make the point - the fact that every aspect of the sentence

remains a live issue before the Court of Criminal
Appeal and must be dealt with by the Court of

Criminal Appeal, is the rules which say that
grounds of appeal or appeals cannot be abandoned or

withdrawn without leave of the Court. You can do

it. The rules permit it to be done before the

hearing commences, but once the case is called and

commences the change by withdrawing appeals or

particular aspects of an appeal is dictated by the

court and unless the court orders a particular
aspect of appeal to be abandoned or withdrawn, that

issue will remain forever before the Full Court and

must be dealt with as a matter of law in any event.

TOOHEY J: What, even if no submissions are addressed to the

court on the matter?

MR FINKELSTEIN: Yes, even if there are no submissions

addressed to the court, because an appeal can only

be withdrawn, once it commences, by leave of the

court. So in certain cases a court may not regard

it as appropriate to allow leave to be withdrawn.

TOOHEY J: Are you speaking, Mr Finkelstein, of - what do

you mean by the "appeal"? Are you drawing a

distinction between the appeal and grounds of

appeal, are you?

MR FINKELSTEIN:  The appeal itself cannot be withdrawn

without leave - - -

TOOHEY J: Yes, I understand that.

MR FINKELSTEIN:  Grounds of appeal cannot be altered without

leave.

TOOHEY J: One would have thought they could be abandoned

simply by not progressing any argument to the Court

on the particular ground, but perhaps not.

Bidrnade 18 MR FINKELSTEIN, QC 28/8/92

MR FINKELSTEIN:  I think the answer is that that is probably

right, Your Honour. I think the Court has been

given a copy of the rules, the Criminal Appeals and

Procedures Rules 1988. And the relevant rule on

abandonment is 2.10, page 4, which allows an
~bandonment before the hearing of appeal by filing

-an appropriate notice with the registrar. Apart

from that, abandonment can only be by leave of the

court and amendments dealt with 2.11 in subrule (2) A notice of appeal or a notice of application

for leave to appeal may be amended at any time

with the leave of the Court.

A notice of appeal would include, obviously

enough, the grounds of appeal. The grounds can be

amended, presumably by changing them, adding them

or deleting them - or some of them •. But that is

really a subsidiary way of looking at it. It is to

make good the point that in this case an appeal
against sentence, the whole of the sentence, always

remains before the Court of Criminal Appeal until the Court of Appeal disposes of it in a way which

the Court itself regards as satisfactory.

Can I turn to the third point, the natural

justice point, because the respondent to the Court

of Criminal Appeal must be taken to have known, (a)

that the appeal was against a sentence, (b) that
that meant against all aspects of the sentence, (c)

that he must be taken to have known that the Court

of Criminal Appeal will deal with all aspects of a
sentence in order to produce an appropriate
sentence. Then it is not correct to say that if a

particular point, which should have been addressed

and was not, denies the respondent procedural
fairness, rather it is an election not to address a

particular point which the respondent, through his

counsel, knew or must be taken to have known, was a

live issue.

MASON CJ: But what about the positive indications from the

court that he need not worry about it, in effect?

MR FINKELSTEIN:  He got two contradictory indications. He

got an indication from the presiding judge that he

did not have to worry about it too much. He got an

indication from another member of the court that

that member of the Court was troubled by the

minimum term that this particular person would

serve, having regard to the sentences that would be
fixed - or that had been fixed by the trial judge.

So that what he did know was that - two things I suppose - the minimum sentence may not be altered dramatically, and it was not, but that the minimum

sentence was of real worry to the Court, otherwise

there would not have been a discussion about it.

Bidmade 19 MR FINKELSTEIN, QC 28/8/92

If it was completely irrelevant and academic nobody would have said anything about it. The fact that a

member of the Court of Criminal Appeal questioned

counsel on the issue to see what would be the

effect of the sentences imposed - - -

-

MASON CJ:- - - - alerted him to the fact that it was live.

MR FINKELSTEIN: That is exactly right, and the law would have taught him that it was alive. And all that

one can gain from what the learned presiding judge
had said was: whatever will happen, it is not

going to be overly dramatic, so far as the minimum

term is concerned, and it was not - - -

DAWSON J: Because of the concession.

MR FINKELSTEIN: Because of the concession. That is exactly

right. And it was increased from a two-year

minimum to a three-year minimum, whereas in other

circumstances with a seven-year sentence it could

have been a five-year minimum and still been
regarded as wholly appropriate. But in the context

of this particular person, who was suffering from

serious illness, a lower sentence was regarded as

appropriate but adjusted upwards, as it had to be,

because the Full Court thought it would be

inappropriate otherwise.

The final point that I want to make on the natural justice side of it is that in truth the

whole of the submissions about the minimum term

revolved around the health of the respondent and

that was well known to the Court of Criminal

Appeal. It is not as if it is an example of a case

where you could say, "I point had been raised I

would have referred to authority x, y, z", which

the court was not informed about and may have

altered the court's position on a particular point.

The single issue that was driving the comment about

the minimum term made by the director, and perhaps

also by the learned presiding judge, was the

illness of the respondent. They all knew that.

That produced what the Court of Criminal Appeal

decided was an excessively low sentence by the
sentencing judge after trial. So that it is not
the case, in our respectful submission, of any

unfairness in the sense that a point, which was

just unknown to a party and-completely out of

everybody's mind, came to be the determining point

in the case.

DAWSON J: What do you say about concurrence?

MR FINKELSTEIN: That was not addressed, but in fixing an

appropriate sentence it could have been done by

making the seven years eight years and having it

Bidrnade 20 MR FINKELSTEIN, QC 28/8/92

concurrent. At the end of the day the court is

obliged to fix the appropriate sentence and if it

does it by having - if the court decides that seven

years, eight years, whatever it is, is an

appropriate term of imprisonment it can, in effect,

_juggle it by taking into account an existing

-sentence, making it either concurrent or cumulative

to produce a desired result. All the court did

here was produce a desired result. In a sense it

is somewhat arbitrary whether it does it by

cumulative and higher head sentence or - I am

sorry, lower head sentence or concurrent and higher

head sentence. What the court is producing is an

appropriate sentence in all the circumstances with

an appropriate minimum term and the rest of it is

really often juggling to produce that result. That

does not demonstrate any unfairness or any error -

it is mechanics. They are our submissions, if the

Court pleases.

MASON CJ: Thank you, Mr Finkelstein. Yes, Mr Weinberg.

MR WEINBERG:  Your Honour, my friend has put to the Court

propositions which we say are contradictory.	He
says, on the one hand that one looks at the

increase in the minimum term, it was really only

from two to three, and he then says, however, the

Court is entitled to achieve the broad, overall

result in any way it likes, including orders for

concurrency and so forth. The net result of this

appeal was to increase the sentence of three years

with a minimum of two, wholly concurrent with 17

months to eight years and seven months with a

minimum term of four years and seven months. Now,

if the Court were giving Mr Tehan the nod and the

wink that there would not be much done to the

minimum term then they certainly did not do that in

the end result because at the end of the day the

minimum term was increased by a factor of over 100

per cent. It was increased from two years to four

years and seven months, if we use my friend's

reasoning.

My friend has put to the Court the submission

that he doubts that the practice that we adverted

to, that one gives effect to the principle of

double jeopardy in reducing sentences really that

well entrenched in Victoria - Your Honours will

find it in this very case at page 33 of the

application book, half-way down the page, when

sentencing this applicant and sentencing the

others, His Honour, the presiding judge, said

half-way down the page, after asking what sentences

ought to be imposed:

I have also borne in mind the principle of

double jeopardy to which counsel referred me,

Bidmade 21 28/8/92

and I have taken into account all of the

relevant matters that bear on the questions
both of mitigation and aggravation.

So that the court itself has demonstrated the very upplication of principle that we contend for in the

course of its sentence here.

Your Honours, we do not want to become

involved in discussion about what the rules provide

for and leave, and so forth. We say that what has

to be looked at is the reality of the situation.

The Director of Public Prosecutions in this case confined his attack and was confined by the court

to an assertion that the sentence was manifestly

inadequate. Indeed, at page 10 of the judgment of

the Court of Criminal Appeal, which did not appear

in the application book, but which has been

supplied to the Court, I think separately, the

Court will see that the court itself described the

director's grounds as "alleged grounds", which do

not constitute grounds of appeal at all, but are

merely argumentative of the principal ground. So

the very points that were raised initially, that is

the attack upon the minimum term, was recognized by

this Court as not even being a ground at all.	But
there was really only one ground and that was
manifestly inadequate.

Courts have said time and time again, Your

Honour, when applicants appear, that.it is highly undesirable that there be broad, sweeping grounds

that do not convey with precision the error that is

being attacked. The same should apply to the

Director of Public Prosecutions who is required to

state grounds. If he is unhappy about an order

that these sentences be concurrent with magistrates

courts sentences being undergone, there is nothing

wrong with saying you should identify that error

and make it the subject of appeal and bring it

properly before the Court. That, regrettably, the

director did not do in this case, if he were minded

to attack it. But we say he was not minded to

attack it because the director, in his judgment, on

the public interest was well satisfied that - - -

MASON CJ: Yes, well you have told us that.

MR WEINBERG:  Your Honour, I will not press that any

further. The final point, Your Honour, is

proportionality. What is the difference between

seven years with a minimum of three and seven years

with a minimum of two in circumstances where a man

is not going to do parole anyway, because he is

going to die. That is our submission to the Court.

Bidmade 22 28/8/92

MASON CJ: The Court will take a short adjournment to

consider the course it will take in this matter.

AT 3 • 2 9 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.35 PM:

MASON CJ: The majority of the Court considers that the

Court of Criminal Appeal did not fall into error in

imposing the sentence which it did. The

application for special leave is therefore refused.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

Bidmade 23 28/8/92