Burns v The Queen

[1997] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S187 of 1995

B e t w e e n -

MICHAEL JOHN BURNS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 11.49 AM

Copyright in the High Court of Australia

MR P.D. ROSSER, QC:   If it please the Court, I appear with my learned friend, MR G.J. GRAHAM, for the applicant.  (instructed by Neil Strickland & Associates)

MR A.M. BLACKMORE:  If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Rosser.

MR ROSSER:   Your Honour, this matter was before the Court on 9 September last year.  The Court had then, but recently, heard argument in the matter of Postiglione.  At the Court’s instance, the matter was stood out of the list with liberty to restore it after the Court’s judgment had been delivered in Postiglione.  It was anticipated that the matters to be argued in that case may impact on the issues raised here.

Your Honours, Postiglione was handed down on 24 July this year.  It is reported only at this stage, so far as we are aware, in the Australian Law Reports.  It is fair to say that it does not directly impact on the issue that we raise here.  It does contain some material which, in our submission, is of assistance to us in making good the challenge to the judgment of the Court of Criminal Appeal.  I will take your Honours to that presently.

Your Honours, our complaint is that his Honour Mr Justice Sully has, in his judgment, attempted to graft onto the totality principle two qualifications which are supported neither by authority nor by the basis of the principle itself. 

BRENNAN CJ:   What is the principle?

MR ROSSER:   The principle, your Honour, is as stated in various of the - well, perhaps, originally stated by this Court in Mill’s Case, commencing at the foot of page 62 of the Court’s judgment, the paragraph commencing - ‑ ‑

BRENNAN CJ:   This is 166 CLR, is it?

MR ROSSER:   Yes, your Honour, commencing at the final paragraph commencing on page 62 and continuing on to page 63.

BRENNAN CJ:   So, in other words, you look at the total amount which has been imposed on the offender.

MR ROSSER:   Yes, your Honour.

BRENNAN CJ:   And you say is that out of kilter with what it ought to be?

MR ROSSER:   Yes, your Honour.

BRENNAN CJ:   Well then, in this case, what do you say?

MR ROSSER:   The total amount is out of kilter, in our submission, and an analysis of what his Honour Judge Gallen did supports that submission.  I take your Honours to his judgment.

TOOHEY J:   Mr Rosser, you say it is out of kilter because of the sentence that was imposed in respect of the offence committed while the applicant was on bail?

MR ROSSER:   Yes, your Honour.

TOOHEY J:   And only because of that or does the argument go further?

MR ROSSER:   No, it is because of the total accumulation of that sentence.  That has the effect of making the sentence as a whole unduly harsh, having regard to the total criminality.  What we suggest has happened is that he has paid a very large premium, indeed, for the offence committed on bail.

BRENNAN CJ:   That is not surprising.

MR ROSSER:   No, it is not surprising, your Honour.  It is appropriate that there should have been a premium but not at the level that the total accumulation of sentences involved.  What Judge Gallen specifically did - and this is at page 3 of the application book - confined himself to the application of totality - this is from line 16 - only to the two counts which were the subject of the indictment.

The terms in which his Honour expresses himself in the paragraph that runs from line 16 to line 21 suggest, in our submission, that what his Honour was seeking to do with respect to those offences was set a minimum term which reflected his assessment of the criminality of those two offences.  In the ordinary course, absent the third offence, it would have been accompanied by an additional term in the absence of special circumstances which his Honour in fact found of 10 months, having regard to the provisions of the New South Wales Sentencing Act, given that his Honour was prepared to find special circumstances but perhaps a longer term.  What we submit it is clear his Honour did was, in imposing an effective minimum term in respect of those offences of 2½ years, we say that is the measure of the criminality of two offences and it must be remembered two offences totalling 324 grams of amphetamine.  He then came to deal - to consider the third offence involving a significantly lesser quantity of amphetamine but, on its face, absent the feature of being committed on bail of less objective seriousness than the others and imposed a greater sentence for that third but less objectively serious offence than he had for the two offences committed in September 1994.

TOOHEY J:   Is the argument that the two earlier offences having being dealt with on a concurrent sentencing footing, the third offence should have been dealt with in the same way or that a cumulative sentence was appropriate but not of the order of the 3 years imposed?

MR ROSSER:   In Mill this Court suggested that concurrent sentences reflecting the actual criminality are more appropriate.

TOOHEY J:   But that could hardly be appropriate here, could it, given the circumstances, namely, that the accused was on bail when he committed the third offence, to have simply made that sentence concurrent with the earlier sentences?  It would hardly mark out the court’s view of the conduct.

MR ROSSER:   Except that his Honour, in assessing the criminality of that episode, viewed in isolation, and bearing in mind that it was a lesser quantity of drug, imposed a greater sentence.

TOOHEY J:   That is why I put it to you in the alternative.  Is it the argument that it should have been made concurrent or, no, it should have been cumulative but not of the order of the 3 years?

MR ROSSER:   It was open to his Honour to do either.  If cumulative, it should have been, in our submission, substantially reduced from what was in fact imposed.  What his Honour appears to have done in assessing the criminality of that third offence is to built into it the premium for committing the offence on bail, remembering it is a lesser quantity of drugs.  He imposes a greater minimum sentence in respect of it but then doubles the premium, in effect, by putting it on top of the other minimum terms.

TOOHEY J:   The actual offences were different, were they not, at least, in the sense that the first two were knowingly taking part in the supply of amphetamines and the third was of supplying?  Now, I am not sure whether they are simply elements of the same statutory offence.

MR ROSSER:   It is the same statute and the same penalty, your Honour, in each case.

TOOHEY J:   But there may be some degree of heinousness, as it were, associated with supply as against being knowingly concerned to supply, I do not know.

MR ROSSER:   Except that quantities involved - two features:  the quantities involved in the September incidents were considerably greater and there were actual supplies to a police undercover operative.  In relation to the January offence, it was an offence of supply constituted, as the Court of Criminal Appeal makes clear on page 8 of the application book ‑ the supply of the drug was a deemed supply rather than an actual supply; the deeming being by virtue of the quantity of the drug.

In our submission, there is no rational explanation for the greater minimum term being applied in respect of that offence, and the total sentence of 5 years in respect of that offence, given that it was not an actual supply, given that the quantities were so considerably less, other than that his Honour has already built into the total sentence of 5 years a component of, as I put it, premium for committing the offence on bail.

HAYNE J:   Do you say that is wrong in principle?

MR ROSSER:   No, it is not.  It should have been made concurrent, in our submission.

BRENNAN CJ:   Now, if you look at page 14, at the bottom of the page, his Honour in the Court of Appeal says however you want to put it, at the end of the day it has ended up about right.

MR ROSSER:   We have two responses to that.  We say, firstly, that it is regrettable that his Honour did not express himself more categorically than he did.  He does not categorically say this is right.  We will go to his exact words: 

on a reasonable view, to entail either no change at all in the definition of the amount of time actually to be served by this applicant, or to entail so slight a difference between the hypothetical result and one in fact achieved -

Now, what his Honour appears to be referring to there is what is sometimes referred to in the judgment as this “fine tuning” of sentences, an exercise which the appellate courts will not undertake.  But it is difficult to see - - -

HAYNE J:   Referred to as “fiddling” south of the border.

MR ROSSER:   Indeed.  But in the context of a minimum sentence of 5½ years, it is difficult to conceive of any fiddling which would not involve a significance reduction.  It is not as though it was a question of an 18 month’s sentence and the appropriate submission being that the appropriate sentence should be 16 months.  In the context of a 5½ year sentence, to admit even of the possibility - and we suggest that the court did not really consider this aspect - that there might be some slight adjustment to that, that such an adjustment in that context can only be an adjustment which is significant and which, in our submission, could not be characterised as tinkering or fine tuning or fiddling.

BRENNAN CJ:   He expounds it a little further on page 15, at line 15:

The principle of totality, after all.....Approached in that way, I am not persuaded that a case has been made out for the intervention of this Court on the basis of the principle of totality.

MR ROSSER:   Yes, your Honour.  Could I go to the second answer that we offer in response to what his Honour says at page 14 and continues on page 15, and it is this:  his Honour Judge Gallen assessed the criminality of the September offences at involving a minimum term of 2½ years; a third offence - - -

BRENNAN CJ:   Maybe he was a bit light on that.

MR ROSSER:   I am not in a position to - because there is nothing before your Honours - take you to the parity argument.

BRENNAN CJ:   No, but it is very relevant, is it not, in approaching the question of totality?

MR ROSSER:   It is, your Honour.  I cannot really put it before the Court other than by telling your Honour from the Bar table, but totality was argued and I can put this, that the person pointed to, referred to in the Court of Appeal judgment as the co-offender, had been involved in the two supplies to which this prisoner pleaded guilty, had been also involved in two others within the same period of time.

Given the assessment of the criminality involved in the September offences at 2½ years in terms of time to serve, one further offence of a lesser amount - just leaving aside the bail issue at the moment - leaves the court imposing - having assessed 2½ years as an appropriate minimum for the 324 grams in September, given a third offence - and sentencing for all offences at the same time - the court now says that 7½ years total sentence and 5½ year minimum is appropriate.  In our submission, that cannot be so.  It increases far too much from the 2½ years seen fit to be imposed in respect of the September offences, by virtue of the addition of one further offence.

Now, we accept that there had to be, perhaps I can put it, a premium paid in respect of the offence committed on bail.  Whether that involved his Honour imposing a sentence of a somewhat greater minimum term than the one imposed and making it concurrent or whether it involved his Honour imposing a sentence of a somewhat less minimum term and making it cumulative, we suggest that the end result should not have been materially greater than the 2½ years assessed as reflecting the criminality of the two offences committed in September 1994.  To increase it by a total of 3 years and an additional term of 2 years was to build into it, in effect, a penalty for breaching bail rather than a penalty reflecting criminality of the offence itself.

So, we submit, with respect to what Mr Justice Sully says at page 14 of the application book - we say, firstly, the court did not really consider the matter, that it at least left open the possibility of some alteration; it at least made the suggestion that the total sentence imposed here was, if only to a small extent, beyond the range.  We submit, secondly, when you analyse what was the criminality assessed by Judge Gallen for the first two offences, the third offence did not make it worse to the degree that the additional sentence of 3 years plus 2 years had the effect of making it.

The court has clearly given no effect to totality at all.  His Honour Judge Gallen specifically confined himself in his application to only two of the three offences with which he was dealing.  The Court of Criminal Appeal has said, in effect, he did not have to consider totality because the offences were not related, in effect, because the sentences were not related.  That was perhaps less than fair to the applicant before that court given the finding of the sentencing judge of an addiction to amphetamine and given the fact that we were after all speaking of offences committed over a period of 4 months in the context of an addiction.

What we do submit is that in the gloss that his Honour seeks to put on to the totality principle, he has fallen into significant error in an area of important principle and this Court should correct it.  Postiglione, as I say, does not impact on it but in so far as his Honour’s suggested requirement for some factual connection between the offences is concerned, in Postiglione the problem was occasioned by the sentence that Mr Justice Grove had imposed upon the co-offender, Savvas.  Savvas had already been serving a period of 25 years in respect of drug offences.  Whilst in gaol he committed a totality unrelated drug offence and was given a sentence of 25 years which was only to a very small degree accumulated.

Now, it was only the minority Judges in Postiglione that referred to what Mr Justice Grove had done there but they said, in terms, that it was appropriate that his Honour should mitigate the effect of totally accumulating sentences because of the totality principle.  The other Judges do not go so far as to endorse it but Justices Dawson and Gaudron, at pages 412, line 40 and 413, from line 40, at least do not criticise the approach.  Justice Kirby, at page 444, at line 10, certainly accepts the totality principle as an explanation for what, on one view of it, was a very lenient sentence that Mr Savvas had received from Mr Justice Grove.  The other Judges, the Judges in dissent, in the result, Justice McHugh, at page 421, dealt with the same issue and Justice Gummow, at 427, dealt with the same issue and, as I say, expressly approved it.

It is support for our proposition that the totality principle does not and never has required any connection of the sort suggested by Mr Justice Sully between the offences that are before the court.  They are our submissions, your Honours.

BRENNAN CJ:   Thank you, Mr Rosser.  We need not trouble you, Mr Blackmore.

The decision of the Court of Criminal Appeal does not require the consideration of any sentencing principle that would warrant a grant of special leave.  As to the length of the sentences imposed, this Court does not grant special leave to appeal merely to consider the severity of sentences.  For these reasons, special leave will be refused.

AT 12.09 PM THE MATTER WAS CONCLUDED