Burd v The Queen

[1995] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M98 of 1994

B e t w e e n -

BILL BURD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 12.38 PM

Copyright in the High Court of Australia

MR S.A. SHIRREFS:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Melasecca Zayler)

MR M. ROZENES, QC:   May it please the Court, I appear with my learned friend, MR R.J.H. MAIDMENT, for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

MR SHIRREFS:   Your Honours, at the outset, may I clarify what is raised initially as one of the questions of special leave in this application, which is badly expressed in my summary of argument, and that is the distinction to be drawn between circumstances of an aggravation of an offence which, if found, would expose an offender to a higher category of penalty, and circumstances of aggravation or factual findings which amount to aggravation of the circumstances in which the offence was committed, which, although not affecting the category of penalty, do increase the punishment to be imposed upon an offender.

BRENNAN CJ:   It is hard to describe the second of those as a circumstance of aggravation, is it not?  The circumstances in which a crime is committed are the circumstances in which the crime is committed.

MR SHIRREFS:   Yes, but if one looks at the cases dealing with the expression “circumstances of aggravation”, the distinction between the two does not seem to be that clear.  They seem to merge in certain circumstances in certain cases, between issues of an aggravation which raises the category of penalty to a higher penalty, and circumstances which aggravate the offence itself, in this present case where the applicant had pleaded guilty to being knowingly concerned at an importation, but in circumstances where it was contended by the Crown on the plea that it was a resupply of heroin for an ongoing business of trafficking, which, although not specified by the Crown, went back a particular period on the plea that, in the event, the learned sentencing judge found span some three years previous.

BRENNAN CJ:   The facts were such, the trial judge says, “Those are the circumstances in which this offence was committed”.  The applicant says, “I want to put the proposition that they were less heinous circumstances”.  Now, is that a circumstance of aggravation we are concerned with, or a circumstance of mitigation?

MR SHIRREFS:   No, I understand the argument.  The way it was put by the Crown, in my submission, was a circumstance of aggravation, and the way it was found by the  learned sentencing judge was a circumstance of aggravation, in that he found, not only that here we had a situation of trafficking in heroin over a long period of time, but during that time the applicant himself had previously imported heroin from Thailand into Australia.  Now, he dealt with that, in my respectful submission, as a circumstance of aggravation, and treated the applicant as a repeat offender, as if he did have prior offences for the offence to which he was pleading guilty, or had pleaded guilty in this case, and that had the effect of then diminishing the significance of what mitigation was put on behalf of the applicant on his plea.  And that is one of the central points at issue in this application.

This was a situation where the original indictment, upon which the application was presented, contained two counts; the one of being knowingly concerned in the importation of heroin, to which he ultimately pleaded, and a count of trafficking in the nature of a business over a particular period of time; although the period specified in that particular count was only over a period, I think, of four or five weeks.  His Honour - before I get to the findings - in the course of ‑ this was to go to trial, as no doubt Justice Dawson may remember ‑ as a result of negotiations, a fresh indictment was filed. 

That indictment contained the single count to which the applicant ultimately pleaded.  In the course of the plea the Crown contended that the importation to which the applicant had pleaded to be knowingly concerned in, was for the purpose of the resupply of his ongoing business of heroin trafficking, being precisely the count which was not before the court but had been on the original indictment, as is evident from the learned sentencing judge’s findings.  He found that, because of the personal need that the applicant had for heroin, the opportunity to purchase it cheaply when in Thailand, a country to which he had travelled on other occasions in previous year, by virtue of being married to a Thai national, and his motive to make money to support an ongoing heroin habit, but not only had the money, which had been found in his house on the day that his brother was arrested at the airport with the heroin, come from his previous trading in heroin, but that that trading went back as a business over a period of three years, during which time the applicant had previously imported heroin into this country.

Now, that was a finding of offences, which were not before a jury, of which the applicant was never charged, other than the previous charge which had been laid on the first indictment of trafficking as a business, and which his Honour took into account in considering what punishment to impose upon the applicant for the offence to which he had pleaded guilty.  Now, that raises, in my respectful submission, two issues ‑ ‑ ‑

BRENNAN CJ:   Mr Shirrefs, I think I will have to interrupt you to adjourn at this time.  We will adjourn now until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

BRENNAN CJ:   Yes, Mr Shirrefs.

MR SHIRREFS:   If your Honour please.  Your Honour, prior to the luncheon adjournment your Honour the Chief Justice specifically raised the question as to whether these findings were being used by the learned sentencing judge to, in other words, test the weight of the mitigation being put on behalf of the applicant or were they being used as circumstances of aggravation.  What was put on behalf of the applicant on the plea in mitigation was that he was a heroin addict and had been for some period of time, but he also admitted, as is set out in the summary of argument, that his concern in this importation was both for use and for sale ‑ I mean something in the future. 

In my respectful submission, the findings that the learned sentencing judge made, particularly that the applicant had previously been importing heroin into this country and that the heroin trafficking business that existed had lasted for some three years, can really have little question of weight when put alongside the mitigation being put on behalf of the applicant.  In my submission, clearly it was being used more to do with aggravation of the circumstances in which this offence was committed, and when one reads the ‑ although it is short ‑ judgment of the Court of Criminal Appeal, it seems as though the court dealt with it in that way also as a circumstance of aggravation in relation to the commission of the offence.  That being so, it meant, as it did, in my submission, in this case, the learned sentencing judge used as aggravation of the offence to which this applicant had pleaded guilty, offences of which he was not charged, treated him as a repeat offender, and the question then is raised, on what standard of proof did he come to those findings, particularly if he is substituting himself for the jury in reaching conclusions on facts which themselves amount to criminal offences of a very serious nature.

BRENNAN CJ:   That is not entirely an accurate way of putting it, is it?  I mean, the question was, “Under what circumstances and for what purpose was this heroin imported by the applicant?”.

MR SHIRREFS:   Yes.

BRENNAN CJ:   And the trial judge said, “Well now, having regard to all the circumstances, including the finding of $390,000 in cash and the absence of any explanation of that and the other surrounding circumstances, I am satisfied this man was running a drug business, and this was one of the importations that was done for that purpose.”

MR SHIRREFS:   He went further than that, in my respectful submission, and found that he had previously imported into Australia heroin in the way that he had imported on this occasion in relation to his plea of guilty for this offence and, by so doing, was treating him as a repeat offender.  The offence to which he pleaded guilty of being knowingly concerned in the importation, was an offence where he admitted that his concern, as I said earlier, was for the purpose of his use and for sale.  The findings that the learned sentencing judge made, themselves, constituted serious offences under the Customs Act and also in this State under the Drugs, Poison and Controlled Substances Act.  And, in so finding, in my respectful submission, what the learned sentencing judge has done is found those facts existed, which themselves amounted to offences ‑ ‑ ‑

DAWSON J:   It was only incidental that they amounted to offences.  His.....relying on mitigation, that he primarily was importing stuff for his own use, is that not right?

MR SHIRREFS:   No.  His submission was that he had a heroin addiction. 

DAWSON J:   Yes.

MR SHIRREFS:   His submission was that his concern in this importation, because it was only this importation that the court was concerned with at the time - one would have thought so - was for use and for sale.  What the learned sentencing judge found was that he had been importing previously, as part of an ongoing business, for three years.

BRENNAN CJ:   Where does he find that?

MR SHIRREFS:   If your Honour turns to page 5 of the application book ‑ ‑ ‑

BRENNAN CJ:   At the bottom of the page?

MR SHIRREFS:   At the bottom of page 5.  It says:

In this case you used a courier to bring the heroin into Australia.  An explanation for that ‑

in other words, an explanation for using the courier ‑

could be that, having escaped detection yourselves on previous occasions when bringing drugs into the country, you felt that your luck was running out so that a courier was necessary. 

Now, that comment can have absolutely no relevance in relation to the sentencing discretion and the reason for imposing the particular sentence in question, unless his Honour, in fact, considered that to have taken place. 

BRENNAN CJ:   What he goes on to say is:

In the context.....it is open to me ‑

et cetera.  And that is what he sentences him for; for importing it as part of an ongoing business.

MR SHIRREFS:   Part of an ongoing business, during which this applicant has previously imported heroin, and that brings us to the principles of law enunciated in this Court in De Simoni, and also in the Court of Criminal Appeal in Medcraft and, in particular, as set out in your Honour the Chief Justice’s ‑ ‑ ‑

DAWSON J:   But his addiction was put forward as a mitigation circumstance, was it not?

MR SHIRREFS:   Yes.

DAWSON J:   And to counterbalance that was the fact that he was also trafficking in the drug.  He had to see the addiction in the context.

MR SHIRREFS:   It was put forward as a mitigating circumstance to be taken into account.  As to whether or not that addiction waa because ‑ he has got access to heroin because by trafficking he is getting access to it himself.  His addiction is he has got access to the heroin because he is trafficking, in my submission, really bears little weight upon that question.  The extent and nature of his addiction, per se, was a factor.  The fact that he may have obtained access to that heroin over a period of time, as part of an ongoing business of trafficking in heroin, does not diminish the fact that he has that heroin addiction.

DAWSON J:   But it throws a different light upon the particular offence of which he has been convicted, or may, other than the light which his counsel  in mitigation would seek to throw. 

MR SHIRREFS:   Yes, and has the effect, and did in this particular case, aggravate those circumstances, to produce a greater punishment than otherwise would have been meted out to this man.

DAWSON J:   Not aggravate the circumstances, but to prevent a complete picture, as the judge said.

MR SHIRREFS:   But those findings, in themselves, constitute offences which were not on the indictment.

DAWSON J:   But that is merely incidental.

MR SHIRREFS:   Well, that is the issue that really is at the centre of this.  In my respectful submission, it was not merely incidental to it but became part of the central findings in relation to this particular offence and, in my submission, is in breach of principles of law enunciated in this Court.

DAWSON J:   Well, there is no doubt if the judge were sentencing for offences of which he had not been convicted on this occasion it would be wrong.

MR SHIRREFS:   Yes.  Well, the point at issue here is whether or not his Honour so did, in relation to this particular matter, other than treat it as something incidental to.  In my respectful submission, when one reads the reasons for sentence, what his Honour has done here is, as I have indicated previously, treated this man as a repeat offender, not as something incidental to the circumstances surrounding the commission of this offence, but as aggravating the circumstances surrounding the commission of this offence and as factors adverse to the applicant himself by treating him as if he did have previous convictions for the offence to which he was pleading guilty in this case.  That, in my respectful submission, is not something incidental but goes further, and was something that was used in aggravation of the penalty imposed.  And that, in my submission, is where his Honour breached a fundamental sentencing principle.  If that be the case, and it is submitted it was the case here, the question then is on what standard did he reach those findings ‑ make those findings? 

This is a Commonwealth offence.  There is a difference between the States as to the standard to be applied in a fact-finding exercise on a plea, when looking at circumstances of aggravation.  In this particular State Chamberlain is the authority and determines that there is a so‑called sliding scale, depending on the significance of the facts to be determined.  The facts that were determined here, in my respectful submission, were facts that amounted to a finding that this man had committed previous offences, a finding by the judge.  If this had been heard in a different State where the standard is beyond reasonable doubt, such as in South Australia and New South Wales, then one would have expected, in my respectful submission, a different type of sentencing approach in the hearing and in the findings and in the sentence that was imposed.  That is a matter of general importance, in my submission, for the administration of justice in this country.

There is, in addition to that, if I am right in my submissions, that his Honour dealt with these previous facts, which amounted to previous offences, as circumstances of aggravation of this offence, then it is a fundamental error.  It is also inconsistent with the approach of this Court and the Court of Criminal Appeal in Medcraft, and has produced an unjust and anomalous result that, in the end, in my submission, should attract the grant of special leave.  Other than those matters, I cannot take the Court any further.

BRENNAN CJ:   Thank you, Mr Shirrefs.  We need not trouble you, Mr Rozenes.

The facts that were not in dispute in this case show that this application does not enjoy sufficient prospects of success to warrant a grant of special leave, nor is there any error of principle in the judgment of the Court of Criminal Appeal which warrants a grant of special leave.  For those reasons, special leave is refused.

AT 2.29 PM THE MATTER WAS CONCLUDED