Bryan v The Queen, Lewis v Attorney General of Queensland

[2004] HCATrans 246

[2004] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B11 of 2003

B e t w e e n -

DAVID JOHN BRYAN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B24 of 2003

B e t w e e n -

TONY KIEREN LEWIS

Applicant

and

ATTORNEY-GENERAL OF QUEENSLAND

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 1.37 PM

Copyright in the High Court of Australia

__________________

MR M.J. BYRNE, QC:   May the Court please, I appear with my learned friend, MR V. SUPRANOWICZ, for the applicant, Lewis.  (instructed by Viktor Supranowicz) 

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the applicant, Bryan.  (instructed by Bell Miller Solicitors)

MR B.G. CAMPBELL:   May it please the Court, I appear for the respondent in both matters.  (instructed by the Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Byrne, we will hear you and then Mr Walker.

MR BYRNE:   Thank you, your Honour.  Your Honours, the applicant, Lewis ‑ ‑ ‑

GUMMOW J:   We are doing that because there does appear to be some element of commonality. 

MR BYRNE:   There is some synergy between them, that is so.  The applicant, Lewis, was placed in jeopardy when he pleaded guilty before the learned District Court judge on 17 September 2002.  It fell to that judge to impose sentence at that time, not at some time in the future.  His Honour could not ‑ ‑ ‑

KIRBY J:   In accordance with law.

MR BYRNE:   In accordance with law. 

KIRBY J:   And in accordance with the statute.

MR BYRNE:   Yes, a statute which provided – as I am sure your Honour will take me to – the maximum penalty.  But his Honour was not to have known, and could not have known, what subsequent decisions of the Court of Appeal would reveal as to perceived ranges within the statutory range itself.

KIRBY J:   That is just judicial elaboration of what Parliament has provided as the statutory maximum, and that elaboration is going on all the time.

MR BYRNE:   That is certainly so.

KIRBY J:   If it was grounded in some statutory basis I could understand your point better, but, anyway, you proceed.

MR BYRNE:   Thank you, your Honour.  Your Honour, in my submission, the learned District Court judge imposed sentence based not only on the statute, but based upon what the recent judicial interpretation of the appropriate range was, so far as the offence of unlawfully doing grievous bodily harm.  That was the decision of D’Arcy, which is referred to in the materials.  It was a decision of the Court of Appeal handed down approximately one month before the applicant here fell to be sentenced.  D’Arcy was a much older person – he was some 34 years of age, whereas the applicant Lewis was 18 at the time of offence and 19 at the time of sentence – and D’Arcy had a substantially worse history of violence, including a conviction for manslaughter.

Again, before the District Court judge, his Honour was asked by the prosecution to have regard to the decision of the Court of Appeal in D’Arcy, specially stating the range that was there discussed in the Court of Appeal, namely, two to four years.  Not only did he seek that range, but he specifically – that is, the prosecution specifically – did not seek the declaration which, under the Queensland sentencing statute, if given, requires that 80 per cent of the sentence be served as a minimum before release.

KIRBY J:   Can I just ask you, was the prosecutor asked by the judge and did the prosecutor say that the range in this case was two to four years, or did the prosecutor merely respond by referring to the Court of Appeal in D’Arcy?

MR BYRNE:   In the application book at page 17, your Honour – this is in the prosecution’s submissions – commencing about line 8, the prosecutor says, “Can I turn to issues of penalty”.  He then went on to refer to the case of D’Arcy: 

In that case the range is articulated as being two to four years.  D’Arcy was a case where there was a pinch bar used as opposed to a sword . . . There was a trial in D’Arcy’s case and D’Arcy was substantially older and had a substantial history of violence. 

My submission is that the range is suggested in D’Arcy to be two to four years.  Things –

in the present sentence, as it then was –

that would put it to the top end of the range –

namely, towards the four year mark.  His Honour ‑ ‑ ‑

KIRBY J:   This is the case where the man has had an artery of the leg severed, he may lose his leg, his leg is withered, he has to have a calliper for the rest of his life, and, if he does not lose his leg, he is going to be seriously injured for the rest of his life.

MR BYRNE:   That is so.

KIRBY J:   Two to four years just – I mean, at the end of the line we have to come to what is just.  Two to four years just seems manifestly inadequate when one looks at the whole of the country and the sentences that are handed out for different offences.  This is something which every day of this man’s life is going to remind him of your client’s wrong to him, every day.

MR BYRNE:   I cannot gainsay that for a moment, but can I say that the justice requires to extend to the applicant as well as to the victim, if I may use that term.  The applicant here was put in jeopardy under these particular circumstances and in respect to these specific submissions by the prosecution.

HAYNE J:   Submissions which, I think, gave to D’Arcy a significance that might be rather larger than is fair, I suspect.  The court says that the concession – that is, the concession by the applicant’s counsel in D’Arcy’s Case – of a range of two to four is a reasonable one.  It is not a reserved decision, is it, revealing close analysis of ranges and the like?

MR BYRNE:   That is so.

HAYNE J:   Counsel get hold of the latest – they used to be called “purple gutses” in Victoria, and that suddenly becomes the lore ‑ ‑ ‑

MR BYRNE:   Certainly on a busy District Court sentencing day where very few sentences are reserved, the court relies greatly, in my respectful submission, on counsel to inform the court as to what both sides are seeking, what the relevant law is.  It is here that the prosecution refers to D’Arcy as what your Honour Justice Hayne puts to me as a very recent decision which, they say at least, has relevance to the extent that the range there referred to by the Court of Appeal was appropriate, albeit at the top of the range for the applicant, D’Arcy.

KIRBY J:   We can see how this happened.  There was D’Arcy, it was referred to, the prosecutor referred to it, the busy judge applied it.  But since then, whilst the case is still before the judicature, the correctness of D’Arcy is being reviewed, and, in my opinion, rightly reviewed.  So why do you not take the good and the bad?  In other words, if the correction within the judicature stands to your advantage, you take the advantage, and if it is to your disadvantage, then the law applies as it is stated at the time of the last order.  Is it a natural justice or procedural fairness point that you are arguing, really?

MR BYRNE:   Very much so, it is what has been described in this Court as the particular provisions of double jeopardy applying in cases of prosecution appeals, if I may use that term generally.  Where a person is once put in jeopardy, as the present applicant was before the District Court, it is unfair, on natural justice provisions, for the prosecution to advance, as was advanced here, a wholly different basis upon which sentence was to be imposed.  That is what we say is an unfairness, however one categorises that.

Whilst the applicant was subject to the first jeopardy, if I may use that term, his counsel referred to the fact – this is at page 21 of the application book, after he had referred to it at page 20, if I may take you to that first.  At about line 22:

he has returned to study year 10 by home schooling through the Bremer Institute of TAFE. 

It was pointed out that the offences which he did have – this is about line 32 – came in a 12 month period when he was without parental supervision.  The submission was then made at application book 21, about line 25, that the learned sentencing judge could consider release at an earlier time than normal by way of a partly suspended sentence.  Now, that course again was part of placing the applicant in jeopardy and that course was not opposed by the prosecution at sentence.  Indeed, his Honour adopted that course by imposing the sentence that was imposed at first instance, namely, three years with earlier release at 15 months. 

It may be said, and this is partially in response to what your Honour Justice Kirby puts to us, that apart from D’Arcy the prosecution did not, before the learned sentencing judge, point to any other comparative sentence to indicate a different range, nor seek any other range.  The prosecution, whilst it is not incumbent upon it, does not, in its written submissions to this Court, point to any decision, that is, appellate decision in Queensland, at the time of sentence which would have supported the particular range ultimately and the particular sentence ultimately imposed on appeal in these circumstances. 

GUMMOW J:   Things change and there has to be the start of the changes.  We hear this all the time in sentencing applications.

MR BYRNE:   There has to be a change, but there has to be, where a person is placed in double jeopardy, in my submission, a sense of fairness.  This applicant is entitled, in our respectful submission, to feel that he has suffered unfairness due to radically different approaches being taken at the two times when he was placed in jeopardy.

KIRBY J:   There is a Dinsdale type point, that is to say, that if you do re‑sentence in a Crown appeal the tradition has been to sentence a little bit lower because of the disappointment factor and the double jeopardy.  It is not strictly double jeopardy, because you are still on the same crime in the judicial hierarchy, but it is a form – I think Justice Deane said it was a form of double jeopardy.

MR BYRNE:   That was said as long ago as Tait and Bartley, I think, in the Full Federal Court.

KIRBY J:   Did the judge here give, as it were, some discount in the case of your client?  I think it was done in the Court of Appeal in the case of Bryan, moderating the sentence even within D’Arcy – within the new rules.

MR BYRNE:   Interestingly, in Bryan, whilst Bryan’s appeal was heard first, the court seemed to take the view there that because of that aspect of double jeopardy and because a declaration was not sought below, a declaration would not be made and was not made in the case of Bryan, as I understand it.  Hence on appeal, six years was imposed; he would be eligible for release after three.  Here the Court of Appeal did not adopt such an approach.  They in fact applied a sentence of seven years with a declaration ‑ ‑ ‑

KIRBY J:   Bryan was the case where he was about to be released the next day. 

MR BYRNE:   It was a case of – yes, three stabbings ‑ ‑ ‑

KIRBY J:   That is an added factor in the Bryan case.  Yours is the case of a samurai sword which had been bandied around in the presence of young people, including young women who had screamed out of fear, and this man, out of public spirit, went to try to disarm and he ends up with the possible amputation of his leg and certainly grievous injury to his leg for the rest of his life.  I mean, to say three years or two years on that when one looks at the sentences that are handed out in some drug cases, it just seems completely and totally disproportionate.  Totally disproportionate.  This is a terrible injury, a terrible wrong.

MR BYRNE:   Again, we accept that, but ‑ ‑ ‑

KIRBY J:   Did the Court of Appeal moderate the sentence in any way in your client’s case, or did they, as it were, go in at the top, give the top and then add this declaration?

MR BYRNE:   The reasoning appears to have been that had the applicant gone to trial, a sentence in the order of 10 years would have been appropriate, and therefore one reasons that, on a plea of guilty with the other factors, one picks a sentence of seven years and then to that seven year sentence adds a declaration.  Now, it is difficult to see moderation in the Dinsdale sense applying there, because the effect of the order of the Court of Appeal was quite stark in the case of the applicant.  His minimum release period, which was 15 months, became 5 years, 7 months.  So it is not a case of either a 100 per cent or 200 per cent increase, it is a radical increase in circumstances where the Crown has not sought such an order before the learned sentencing judge.

HAYNE J:   But there is a possible point of view that the Attorney’s appeal is properly reserved for cases where the result that should be imposed is very different from the result that was.  So pointing to the existence of radical difference may not advance us terribly far.

MR BYRNE:   It gives, in our submission, a flavour as to what the injustice was, if there was an injustice, suffered by the applicant.  He has been sentenced on a particular basis and on particular submissions made by the prosecution, then, in a different forum, different submissions are advanced which relate in that chasm between. 

That is in the circumstances where – and this goes back to the natural justice point – having got the sentence that was contended for below, there is then an appeal and there is what we say is the other error – although I take into account what has been put to us by the Court – where the Court of Appeal here refers only to two appellate decisions, both of which postdate the sentencing of the applicant, and, indeed, one of which, Chambers and Others, was a sentence imposed on a different offence, a life offence, if you like, grievous bodily harm with intent, whereas the maximum sentence available in the case of the applicant was 14 years. 

So what the Court of Appeal seems to have done, we say, if we may respectfully do so – that error can be seen at application book page 35, paragraph [30] of the judgment of Justice Williams.  His Honour said this, in the second sentence in that paragraph:

The learned sentencing judge did not have the benefit of some of the more recent cases in this court which have been concerned with the appropriate penalty to be applied in such situations.

The reason for that, put simply, was that the cases referred to in the course of the judgment of the Court of Appeal did not exist at the time that the applicant was first placed in jeopardy for sentence.

KIRBY J:   What is the inference that we should draw from that very peculiar provision in the Code in 669A(1), that the Court of Appeal has: 

unfettered discretion [to] vary the sentence and impose such sentence as to the Court seems proper. 

“Unfettered discretion”, is that answering Tait and Bartley?  Is that the Parliament saying, “Well, we know you have said all this about double jeopardy and so on.  We do not care.  You are going to have an unfettered discretion”.  Why should courts impose their natural justice ideas when Parliament has said “unfettered discretion [to] vary the sentence and impose such sentence as to the Court seems proper”?  That is a very unusual provision.  I do not think that exists in any other State.

MR BYRNE:   It is unusual and it is a provision which has existed in the Code for some time.  It is a provision which until at least ‑ ‑ ‑

GUMMOW J:   Did it go in, in the present form, in 1975?  Is that your recollection?

MR BYRNE:   About that time, your Honour, yes.

KIRBY J:   When was Tait and Bartley?  That was a little after?

MR BYRNE:   1979, from memory, I think.

KIRBY J:   That was in the ACT, I think, was it not?

MR BYRNE:   Yes, the Full Federal Court.

KIRBY J:   Yes.

MR BYRNE:   And then there has been the jurisprudence which has developed surrounding Attorneys’ appeals in this Court, through Everett, through Dinsdale, through later cases. 

GUMMOW J:   Why is the respondent here shown as the Attorney‑General?  Why is it not the Queen?

MR BYRNE:   Because the Attorney‑General is the appellant under the legislation. 

GUMMOW J:   Because of that particular statutory provision.

MR BYRNE:   That is so, which is unique in Australia.

GUMMOW J:   You may be right, but it rather underlines the point that Justice Kirby is putting to you.

MR BYRNE:   Quite so, and I am not shirking that point.  After the law developed by this Court in regard to principles of Attorneys’ or prosecution appeals and also the principles that should be applied, particularly after Everett, the Court of Appeal of Queensland came to consider the provision in 669A, which your Honour Justice Kirby points out to me, in the case of R v Melano, Ex parte Attorney‑General [1995] 2 Qd R 186. The court there held that there should be the natural reticence which flows from the double jeopardy principles inherent in what has been said about this jurisdiction.

It must be said fairly, however, that in the latter cases and particularly, perhaps, in Chambers, so far as they are before your Honours today – in Chambers, in Bryan and certainly in the present application, the Queensland Court of Appeal has not seemingly felt itself bound in any sense by any moderation, if you like, on appeal, because of the way proceedings have advanced through the ‑ ‑ ‑

KIRBY J:   That may be because of the word “Code”.  We from non‑Code States have to be very careful when we approach the Code, it is very precious.  We have to be careful that we do not, as it were, bring all the common law penumbra into the Code language, which is in very strong words.

MR BYRNE:   It is, but so are the words of the Justices of this Court, which have made clear that the notion of double jeopardy is deeply rooted in the criminal law such that issues of fairness require that when one is exposed to the criminal law, one should be able to properly expect, as a matter of natural justice, that one is sentenced in accordance with what is put forward.

KIRBY J:   Now, there is something Justice McHugh has said about the natural justice point.  Is that the strongest statement in this Court that suggests that it is a very serious matter to overturn what a prosecutor has said at trial as to sentence?

MR BYRNE:   If I could take your Honours to page 47 of the application book, in the footnotes to our written outline there we have extracted the statement from R v Tait:

“It would be unjust to a defendant, whose freedom is in jeopardy for a second time, to consider on appeal a case made against him on a new basis”. 

We say that that is what happened here.

GUMMOW J:   Justice McHugh does not help you.  You see, he is talking about a different structure.  He says: 

in the exercise of its discretion to grant leave to appeal against a sentence ‑ ‑ ‑

MR BYRNE:   In Tasmania, where Everett ‑ ‑ ‑

GUMMOW J:   I understand that completely, but in Queensland the Parliament has taken a different view of it.

MR BYRNE:   It is certainly the case that there is, firstly, an unfettered right of appeal, and there is, in the words of the statute, what Justice Kirby has put to us about the determination of the appeal.  We can take the submission no further than to say that the various statements of the High Court still point to the reticence that any Court of Appeal, regardless of the statutory provision, should feel when sentencing for a second time.

GUMMOW J:   Well, I am not sure about that.  They have to obey the statute and what flows with the statute.

MR BYRNE:   That would mean then ‑ ‑ ‑

GUMMOW J:   Otherwise we would have a whole new species of leave application.

KIRBY J:   I suppose the best way you can put it is to say, well, they have an unfettered discretion, but they exercise that unfettered discretion within well‑known and fundamental principles, and they include the principle that you do not increase the burden beyond that which the prosecution has suggested at trial.  If you do, then you moderate substantially beyond that which would have applied had there not been this element of disappointment and double jeopardy.  That is the best way you could put it.

MR BYRNE:   I could put it no better than that, and I see that my time has expired.

GUMMOW J:   Yes, thank you, Mr Byrne.  Yes, Mr Walker.

MR WALKER:   Your Honours, in this case itself, that is, Bryan, page 72 of the application book, paragraph [39] of Justice William’s reasons, there is a reference to what is there called: 

the degree of moderation customarily associated with the imposition of penalty after a successful Attorney’s appeal.

In Queensland, the lore or the jurisprudence includes ‑ ‑ ‑

GUMMOW J:   You mean case law?

MR WALKER:   Yes, includes in relation to the very statute, which one finds at page 98 of the application book – that is, section 669A(1) – the notion that the proper appellate approach will involve consideration of that so‑called custom.  In short, it is not a matter which in Queensland is confined to considerations of the non‑existent discretion to grant leave, there being no leave required in an Attorney’s appeal.

GUMMOW J:   What about this word “unfettered”?  Is this not a reimposition by a judicial decision of a fetter which the legislature had sought to remove?

MR WALKER:   There are two answers.  No, it is not, that is, it is the application of the familiar requirement that judicial discretions be exercised judicially and part of the judicial approach in relation to re‑sentencing is this notion – and it is only in a notional, rather than a literal, sense – of double jeopardy.

GUMMOW J:   Well, one way of looking at an unfettered discretion is that you start again.

MR WALKER:   Yes.  We have collected in our reply submissions, starting on page 98 of the application book, some of the other appellate provisions where you will find, I think, universally, that the word “discretion” with no epithet describes the power of the court upon detection of error in sentencing.  Now, in our submission, it is difficult to understand what substantive work in relation to bestowing powers on a court is done by the word “unfettered”, where what the court has is simply called a “discretion”.

KIRBY J:   It is a very unusual provision in a statute.  It is in this context and one would think maybe it is directed to saying, “Well, you have developed all these rules in the judiciary, but we are telling you, on this matter of Attorneys‑General appeals, upholding the public interest as the law officer must do, you have no discretion, you have no fetters.  Put those fetters out of your mind”.

MR WALKER:   Your Honours, in our submission, it is not a fetter for a judge to regard himself or herself as bound to exercise discretions judicially.  That is simply the judicial exercise of a discretion.

KIRBY J:   Well, I would accept that, but what about the so‑called fetter in Crown appeals of having a different rule proper to prisoner appeals?

MR WALKER:   I do not wish to say more about this, because this is not to the forefront of the argument in Bryan.  In fact, why would I complain, how could I complain, bearing in mind that there was applied by the Court of Appeal, in re‑sentencing my client, that customary moderation?  So I would rather ‑ ‑ ‑

HAYNE J:   But the point cuts against you at a different level, does it not?  If it is sentenced de novo, then let us look at the state of the law as it stands at the time of the relevant sentence, the Court of Appeal’s sentence. 

MR WALKER:   Yes, however, I am not intent on arguing that under 669A(1) worse things should have been done, more onerous things should have been done, to my client.  Neither is the Crown.  I address the point because, with respect, it is a creature of statute and the statute governs.  My point, which tries to call in aid, in favour of a grant of special leave, the difference between the Queensland provision and the other provisions, is as follows.  Under the provisions which require leave before a Crown sentence appeal, there is well‑established in this Court a number of species of, if you like, reluctance or resistance which ought to be considered by the Court considering an application for leave.  They include, among other things, and importantly for the facts in Bryan, the position taken by the Crown in the original sentence in court. 

That has been expressed in this Court in the context, for example, of Everett with its leave provision in Tasmania, as being an important factor in considering leave to appeal.  Our submission is that it is also an important factor, once leave is granted in jurisdictions where leave is necessary and in this jurisdiction where no leave is granted on the question of error.  That is our point.  On the question of error, one asks, did the sentencing judge depart from the task the sentencing judge had, bearing in mind part of the difficulty for the unjustified gloss which insistence on so‑called “ranges”, where there is just one statutory maximum, could introduce into the sentencing exercise.

HAYNE J:   Well, did the Attorney allege specific error, or did the Attorney simply allege manifest inadequacy?

MR WALKER:   Manifest inadequacy, that being significant because in this case it shifted the head sentence from four years to six years.  In our submission, bearing in mind the nature of a range and what I am about to take your Honours to in relation to the Crown’s position in the original sentencing court, that is not the hallmark of manifest inadequacy.  We would adopt and slightly adapt a matter that your Honour Justice Hayne raised with my friend, Mr Byrne, on the previous application, namely, that where there is a marked alteration on a Crown appeal it at least demonstrates that there has been proper weight given to the need for manifest inadequacy to be shown. 

Where there is a difference of the kind that emerged in this case, driven very much by statutory consequences of the magic five years the Chief Justice refers to, in our submission, manifest inadequacy becomes much less obvious as being a justifiable detection of error in the case.  However, in our submission, manifest inadequacy being the species of appeal the Crown is attempting, they still need to show error by otherwise than what might be called an intuitive assertion that four was not enough.  Error involved, in our submission ‑ ‑ ‑

GUMMOW J:   Can you say that again?

MR WALKER:   It involved more than simply an intuitive assertion that four years was not enough.

HAYNE J:   I thought that was the foundation of last category House v the King, which is the territory in which we ‑ ‑ ‑

MR WALKER:   The residual category in House v the King is for the result that shocks by its wrongness, though one cannot put one’s finger on irrelevant consideration, a failure to take into account a relevant consideration, a misdirection or ‑ ‑ ‑

HAYNE J:   Is that not manifest inadequacy?  Either made out or not made out, but is that not the realm in which manifest inadequacy lies?

MR WALKER:   Yes. 

GUMMOW J:   The ghost of Wednesbury, actually.  The precursor of it, actually.

MR WALKER:   Yes, it is.  That residual last category in House v the King is exactly what all this is about.  Now, in our submission, four years, six years, simply does not amount to such a shocking departure.  That is the first proposition, that it does not survive the restriction on mere substitution of an appellate opinion for a first instance opinion, which the last category in House v the King is designed to bolster rather than to weaken. 

The second proposition is that in showing error in a sentencing case of this kind, there had to be some attempt to say one of two things about what is called conveniently by the judges – though perhaps inaccurately, in terms of their power – a “range”, “range” only meaning that within which the court could not say that it was doing anything other than simply substituting its own opinion, were it to alter it, because it would not be manifestly inadequate or manifestly excessive.

Now, in our submission, the only two ways that that could have been got about was to show that the trial judge either misled himself or was misled, including by the Crown, we accept, as to what the cases, which, for consistency of treatment, ought to be looked at, revealed as an appropriate range in the case, that which would not be manifestly inadequate or would not be manifestly excessive.  That was not done in this case.  There was no attempt to show that the judge misled himself or was misled by the Crown.

The alternative approach, which picks up something that your Honour Justice Gummow said to Mr Byrne, is this.  It is all very well for the range to have been accurately expatiated on, first, by the Crown assisting the court, and then by the court considering the sentence, but we, the Court of Appeal, say that range is wrong, it is outdated, it does not reflect a renewed interest in deterrence, a renewed concern that this is an offence that has not been sufficiently deterred, et cetera.  That, of course, is an elementary matter, one of which the appellant would be apprised, not to mention the Crown, so that the Crown could present an appeal which would be directly embracing the proposition that that which it had relied upon before the trial, the sentencing judge, was now outmoded.

We accept that in that second manner a range could emerge in an appellate judgment for the first time – as Justice Gummow points out, there has to be a first change – but only, in our respectful submission, where the Crown has taken on the task, or the court has apprised the parties that it is going to take on the task, of showing, demonstrating – again, rather than merely asserting – that the former range is no longer appropriate.  That was not done in this case.  Your Honours will find, for example, in the Chief Justice’s reasons, page 65, paragraph [4], the bottom of the page, his Honour notes that:

the flavour of the Crown Prosecutor’s submission tended to support sentencing at the lower level.

Now, it is true that he finds manifest inadequacy, but there is no closer approach to understanding what it was about the Crown’s submissions – which, at the most, approached five years, it really only got to about three and a half years – how it is said that that shows that the four year sentence was manifestly inadequate.

HAYNE J:   Is it open to see the differing dispositions, that is, the disposition of first instance and on appeal, as involving a significant ratcheting up of punishment because of the declaration consequence? 

MR WALKER:   I am bound to say, I think, yes, your Honour.  I accept that cuts against me here. 

HAYNE J:   Because you have moved from one, in effect, former punishment to another radically different or importantly different ‑ ‑ ‑

MR WALKER:   The very passage I have just drawn attention to in the Chief Justice’s reasons records – and so does the transcript of the appellate argument – that that was a concern.  You will recall, there was regret expressed that no declaration had been sought for what as a matter of…..was a serious violent offence.

Your Honours, when one then goes back to see the record upon which the Court of Appeal was entitled to look in order to ascertain this notion of error committed by the judge below, one finds in the application book pages 15, 16 and 17 the assistance given by the Crown to the court below.  There are the following passages which, in our submission, really meant that it is not fair to say that the sentencing judge misdirected himself, or misunderstood submissions, or had erroneous submissions made to him, about this so‑called range idea. 

KIRBY J:   Mr Walker, I am prepared to accept that, by reason of supervening events, namely, the reconsideration in the Court of Appeal, what has happened is a disappointment to your client and you have a sort of double jeopardy type complaint.  But my problem is that the Parliament of Queensland has enacted this exceptional provision that says, “Do not fetter yourself with those considerations”.  You can establish this point if you want to, but in the end, in my view, because of that provision of the Code, it really leads nowhere.

MR WALKER:   In which case that, in our submission, is an important point.

KIRBY J:   Is what?

MR WALKER:   That is an important point as to whether the word “unfettered” ‑ ‑ ‑

KIRBY J:   In what way is it an important point?  Is it a Kable point?  “Unfettered” means unfettered.

MR WALKER:   No, it is not a Kable – it is nothing constitutional at all.  It is a matter of what the word means. 

GUMMOW J:   We are always on edge about the Constitution.

KIRBY J:   Some of us are looking for it more than others, but what does “unfettered” mean?

MR WALKER:   Nor is it esoteric, but it is an important point in relation to judicial method in sentencing appeals as follows.  It has hitherto, particularly in the jurisprudence in this Court – Everett is just one example – been regarded as a fundamental part of the approach to sentencing appeals to consider the effect of so‑called consistency or inconsistency, among other things, on the administration of justice and its standing.  So that unexplained or inexplicable material differences in cases which do not present as being materially different have always been regarded as one of the aspects of justice, particularly acute in relation to sentences.  It is, of course, practically always accompanied by a caution that it is not intended ever to warrant what I will call a tariff approach, a mechanistic approach. 

That is the first and fundamental matter.  The second, of course, is that these are appeals, it is a jurisdiction in error, there needs to be error

shown before this unfettered discretion may be exercised.  The error will in turn involve whether what is in question is more than a judicial disagreement about matters which are preternaturally subject to differences among reasonable minds.  In our submission, the difference between four and six is of that order; it is a difference among reasonable minds. 

The word “unfettered”, were it now to be seen as freeing the court from concern about comparables or so‑called ranges, and freeing the court from concern about the way in which the Crown conducted the sentencing matter below, would, in our submission, place this State in a radically different position concerning what are therefore fundamental matters of a judicial exercise of discretion.  “Unfettered”, in our submission, if it does anything except add rhetorical emphasis – and I ought to accept that it does do more than that – if it does anything more than that, it is simply to ensure that the so‑called “rarity”, which some of the older cases seek to impose upon Crown appeals, should not inform, by disapproval or otherwise, the way a court approaches re‑sentencing when they get to it.

KIRBY J:   Assume this Court wanted to get into trying to give some sort of a gloss or explanation of “unfettered”, which is a hard word to do that to, would you not look for a case which is more appealing and likely to succeed than a case involving, as in your instance, the drawing of a knife in a public street, performing life‑threatening criss-crosses on the body of another human being, or, in Mr Byrne’s case, the drawing of a samurai sword, which severed an artery and a person suffers the loss and possible amputation of a leg?  They are not very appealing cases.  They are not appealing to me.

MR WALKER:   Could I offer then No 10 in this list, Thompson’s Case?

KIRBY J:   I am sorry?

GUMMOW J:   You cannot offer it yet, Mr Walker.

MR WALKER:   That was in answer to Justice Kirby.  It was not an attempt to ‑ ‑ ‑

HAYNE J:   You want us to consult the vendor, do you, Mr Walker? 

MR WALKER:   May it please your Honours. 

GUMMOW J:   We will take a short adjournment. 

AT 2.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.20 PM:

GUMMOW J:   We do not need to call on you, Mr Campbell.

We see no error in the orders of the Court of Appeal in either of these applications which were heard together today.  Relevant to this conclusion are the provisions of the Criminal Code Act (Qld) found in section 669A(1). This states:

The Attorney‑General may appeal to the Court against any sentence pronounced by:

(a)      the court of trial;
(b)      a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper. 

This is a provision which appears to be unique to Queensland and differs significantly from the provisions governing the disposition of prosecution appeals against sentence elsewhere in Australia.

Each of the cases here involved a serious injury to the victim.  The conclusions reached were open to the Court of Appeal on the facts of each case.  There are no prospects of success in the applications for special leave to be granted.  Accordingly, in each application special leave is refused. 

We will adjourn to reconstitute.

AT 2.22 PM THE MATTERS WERE CONCLUDED