Burns v The Queen

[1996] HCATrans 269

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
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 10.46 AM

Copyright in the High Court of Australia

MR G.J. GRAHAM:   If the Court pleases, I appear for the applicant. (instructed by Neil Strickland & Associates)

MR R. KELEMAN:   I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR GRAHAM:   Your Honour, this is an application involving a decision of the Court of Criminal Appeal, delivered by Justice Sully, with whom agreed Justice Levine, and the point that we bring here concerns the principle of totality in sentencing.  The matter complained of is, in essence, contained in the judgment - the appeal book - - -

KIRBY J:   The question is whether the totality principle contains what one might call an “anti-crushing” principle; that is to say whether, in its essence, it is simply looking at the totality of the particular crime before the Court on the analogy of whether you make an order for a concurrent sentence, or whether you are looking back at the end of the process to ask whether or not to add the sentence that might otherwise be fair and proper is going to cause crushing of hope in the accused.

MR GRAHAM:   Exactly so, your Honour.  Exactly so.

KIRBY J:   The problem for you is we had an argument last week, in a case of Postiglione - I think it was about the fourth Postiglione appeal - and it raised this point.  So that in so far as it is a point, the Court is going to have to consider that in Postiglione. 

MR GRAHAM:   Yes.  I was unaware of that until a moment ago, somebody told me.

KIRBY J:   There is a decision of the Supreme Court of Canada recently - I forget the name of it, but it gives you some support.  Chief Justice Lamar, writing for the court, said that “totality” includes the notion of ensuring that the sentence, looking at the entirety of the accused’s position, does not crush the accused.

MR GRAHAM:   Of course, the matter we bring here is a statement of principle by Mr Justice Sully.  This is at page 13 of the application book.

KIRBY J:   He said it had to be connected events.

MR GRAHAM:   Connected, yes.

KIRBY J:   Where is the best statement of the totality principle in the law of this country?  Where do we find the best short statement of what it involves?

McHUGH J:   Mill’s, I suppose, is it?

MR GRAHAM:   I am sorry, your Honour?

McHUGH J:   Mill’s.

MR GRAHAM:   I was going to refer to Mill’s.  I was also going to refer to Close, because in that - that is a Court of Criminal Appeal in New South Wales decision in which we have a decision of Mr Justice Sully which I contend is contrary to what he has said in this case.

BRENNAN CJ:   Mr Graham, excuse me for a moment while I ask Mr Keleman a question. 

MR GRAHAM:   Certainly.

BRENNAN CJ:   Mr Keleman, in the case of Postiglione, I gather the issues that were debated there could, perhaps, affect this case?

MR KELEMAN:   I am not familiar with - - -

McHUGH J:   You were not in Postiglione.

BRENNAN CJ:   You were not in Postiglione.

MR KELEMAN:   No, I was not in Postiglione.

McHUGH J:   It was a federal offence, and the argument in Postiglione is that - it has also got a problem about parity of sentence of another co‑accused - that one co‑accused got 25 years, Postiglione got 18 years and, because of back dating, I think - - -

KIRBY J:   It was because of their past sentences.  One of them only had a short period still to run, one had a long - Mr Savvas had a long period to run and, therefore, when the sentence fell it led to a substantial doubling - the sentence in the case of Mr Postiglione was an additional non‑parole period of 11 years, whereas, in the case of Mr Savvas, it was only an additional six years.  So that, that seemed to cause a sense of grievance on the basis that Postiglione had co‑operated, Mr Savvas had pleaded not guilty and been

tried and convicted.  So, it does raise at least one of the issues; the question of whether or not the totality principle requires that you look back, when you have worked out what the mathematics are, and ask yourself does this have such a crushing effect on a particular accused that it is out of proportion to the total criminality which has been involved.

MR KELEMAN:   With respect, that has always been the principle of totality, and Mill has set that out fairly clearly, we would say.  This case, of course, is very, very different from the situation that your Honour has described in Postiglione and we would say - and it is perhaps a little bit out of turn, but we would say that his Honour, in this case Mr Justice Sully, had that notion in mind.  That is better described on page - - -

KIRBY J:   He could have taken the view that all of this is part of this man’s addiction and involvement in drug use and that it is all - I mean, it was October and January.  It is not very far apart.  Speaking for myself, I think that if I had been in the Court of Criminal Appeal I would have found a lot of merit with what the applicant is saying, but the problem is whether there is any special leave issue here, especially because we have reserved general consideration of totality in Postiglione.

MR KELEMAN:   Certainly.  This, we would submit, is not an appropriate vehicle.  Firstly, obviously, excessiveness - - -

BRENNAN CJ:   Well, we need not hear you about that.  We wanted to hear you only on the question of Postiglione and what you have to say about that.  We should continue with Mr Graham’s submissions and then we will hear you in reply.

MR GRAHAM:   Thank you, your Honour.  In essence, what I am putting is why should there be any real connection between the offences before the principle can be applied.  Mr Justice Sully says there has got to be.  We cannot apply it.  That, I suggest, is illogical and it is not supported by any authority, and that is why we are here.  What we seek is a decision of this Court which will clarify the matter and because - - -

BRENNAN CJ:   Does it not come to this; that if a person engages in a series of acts which are informed by the same common elements of criminality, then the sentence is imposed with reference to those series of acts and that common element which informs the criminality.  Then, if you have got separate acts, or a separate motivation, then that is a different matter.  If, on the other hand, they are all together in some way, then you just sentence for what he has done.  You do not worry about how many counts there are in the indictment, but you do worry about whether or not it is the same series of acts, identifying it  by reference to all the circumstances of the case.

MR GRAHAM:   It may be that in this case the final sentence was justifiable; I am not here to argue that.  Of course, that is to be argued in the Court of Criminal Appeal, or it was, and hopefully might be again.

KIRBY J:   I think you challenged the Chief Justice’s proposition, and the proposition you want to put up is that they do not have to be connected acts, they do not have to be the one set of facts, they do not have to be in the one indictment; that what you look at is how the particular penalty falls on the particular accused, and that is the true notion of the totality principle.  There is some support for you in the Supreme Court of Canada.

MR GRAHAM:   The man had committed two serious armed robberies worth, let us say, 10 years each, and two serious rapes, unconnected in any way with those, and they are each worth, say, 10 years.  You do not sentence him to 40 years.  The principle of totality would apply in those circumstances, even though there is no connection whatever between the type of offence, or the timing of it, or anything else.  He is up for sentence on those four matters on the one day.

BRENNAN CJ:   You might sentence him separately on each one.  You would make some of them concurrent.

MR GRAHAM:   That is the right.  The reason I suggest you would do that is that the totality of the years that each of the offences deserves is just too high altogether.  They do not have to be connected offences.

BRENNAN CJ:   That just seems to me to mean no more than the penalty always fits the criminal as well as the crime.

MR GRAHAM:   Well, that is exactly what I am saying in essence; that you look at the totality of the criminal behaviour, whichever form it took.

BRENNAN CJ:   In this case, what is there that is excessive about this?

MR GRAHAM:   In this case the - - -

BRENNAN CJ:   Even if Justice Sully expressed the words in the wrong way, what is wrong about the exercise of the sentencing discretion?

MR GRAHAM:   He said it does require some sensible regard to be had to, among other things, the question of whether the offences in respect of which the principle is being invoked are, or are not, in a real sense connected.  Now, it is my submission that that is not the situation at all; they do not have to be connected for the principle to apply.

BRENNAN CJ:   If the principle did apply in this case, what different sentence should have been imposed?

MR GRAHAM:   That, of course - I am not prepared to argue that.  It is not what I came to argue, but let us say that he is sentenced for the two matters concurrently, to two and a half years as he was, and then the third matter comes up.  It is a similar matter, by the way, but he committed this third offence when he was on bail, so it is a more serious matter for that reason.  If he were sentenced, let us say, to two and a half years - leave that sentence as it is, it was pronounced by the sentencing judge, the first two, concurrent ‑ if he were sentenced to, say, four years for the third offence because of it being more grave, committed on bail, but backdated to the commencement of the other sentences, and then that may form the minimum term, four years, there being special circumstances, as was found by the sentencing judge, an additional term of some two years might be appropriate.  That would mean he would be serving a total sentence, including a parole of six years instead of seven and a half.  Something like that, I suggest, would have been appropriate.

BRENNAN CJ:   When I looked at what Justice Sully said at page 13, the second part of the paragraph in which he deals with this question of totality, he is saying that it cannot:

be applied so as to impose in respect of a third offence committed while on bail either no effective penalty at all, or a penalty which involves, in real terms, so far as the offender is concerned, a penalty quite inadequate to mark the culpability of what has been done. 

Is there anything erroneous in that?

MR GRAHAM:   Nothing wrong with that at all.  But the question of fact - whether or not the way I have just suggested it could have been dealt with would be an adequate penalty for the culpability.

KIRBY J:   As I understand it, your proposition is that the judge works out what is the proper sentence objectively and subjectively, and then looks back at how that sentence falls on the particular crimes that bring him before the court, and on the particular criminal, including any past crimes, and that what Justice Sully did was to look at A but not B, because he expressly said on page 13 the principle is being invoked where they are, in a real sense, connected.  I think we can see the point.

MR GRAHAM:   The point of this application is that that is not a correct principle; that there has to be a real connection.  It may, in the long run, not make any difference in this case, but that is not what we are here to argue.  I am here to try and have from the Court that - - -

KIRBY J:   Your client is in custody now?

MR GRAHAM:   Yes.

KIRBY J:   How long has his sentence run?

MR GRAHAM:   Well, he has to do five and a half years from the date of sentencing.

KIRBY J:   Roughly what do you say he would have - without going to the detail, how long would he have served if what you are putting to the Court had been accepted in the Court of Criminal Appeal?

MR GRAHAM:   If that had been accepted, he would be at liberty four years after - on parole, that is to say, four years after - - -

KIRBY J:   So, he would be still in custody for some time.

MR GRAHAM:   Yes.

KIRBY J:   May it not be wiser, if the other members of the Court agreed, to wait until Postiglione and then you could argue your case with the advantage of whatever the Court says there on the issue of totality?

MR GRAHAM:   There is no point in having it decided twice, I agree.

KIRBY J:   Yes.

BRENNAN CJ:   That seems to have the advantage of allowing the Court to express its views in relation to totality in the Postiglione Case and this case being decided conformably with that.  Whether that is in your favour or against you remains to be seen.

MR GRAHAM:   Well, if I could come back and have another try if it is against me, I would be grateful.

BRENNAN CJ:   You can have another try.  What do you say about that course, Mr Keleman?

MR KELEMAN:   The position of the respondent is this particular matter does not disclose any breach of the totality principle, so that it would not be appropriate to take that course.

BRENNAN CJ:   That is difficult to say in the light of the fact that the totality principle is awaiting enunciation in some form.

McHUGH J:   In Postiglione, the crime for which they were sentenced was committed in gaol.  There were serving sentences; one for conspiracy to import drugs and the other one - I think, yes, both in relation to drug offences, and they entered into another conspiracy in gaol.  The argument is that you have got to take into account, in Postiglione’s Case, the fact that he was already serving a gaol sentence.

KIRBY J:   And had an Italian sentence waiting in the wings for his pleasure on the end of his Australian sentences.

MR KELEMAN:   That principle is not disputed in the decisions of the Court of Criminal Appeal in the State.  There is a line of authority that makes clear that the totality principle not only applies to a situation where you are being sentenced in relation to multiple offences - - -

McHUGH J:   There is Harrison, I think, is one.

MR KELEMAN:   There is Bakhos, there is Harrison, there is Close.  They all make it clear that the principle must also apply when you are presently serving sentences, and further sentences are to be imposed, precisely so that sentences that are not crushing and are appropriate ultimately are imposed.

KIRBY J:   So, you accept the anti-crushing element of the totality principle?

MR KELEMAN:   I think that is why the principle - - -

KIRBY J:   It does not look as though Justice Sully applied it here.  I do not want to get into the details because I agree with the Chief Justice, I think we would do better to look at this after Postiglione is decided.

MR KELEMAN:   Well, we would submit that his Honour did have regard to that.  I can take your Honour to some passages, if it is appropriate, now or later, but the maximum penalties for these offences carry 15 years imprisonment, and we have three offences involving relatively large quantities of amphetamine.  The trafficable quantity in relation to this particular drug is 3 grams, the indictable quantity is 5 grams, the commercial quantity is 250 grams.  These quantities, at least in relation to the first two offences, were half the commercial quantities.  Now, in respect of each of these offences, we are looking at a maximum of 15 years each.

KIRBY J:   Yes, but the question is whether his Honour would have reached a different view if he had not put the legal blinker on and said that, “I have got to find that the facts are connected.”  He accepted he had to show the facts were connected; whereas, in fact, upon one view you do not have to do that.

MR KELEMAN:   Well, with respect, we would submit that his Honour did not make any such error in relation to that.  What his Honour was, in effect, dealing with was a submission that all of the sentences imposed should have been, in effect, concurrent.  What his Honour was seeking to do in that paragraph, at page 13 of the appeal book, was to demonstrate that concurrent sentences of the quantum in fact imposed in the sentences would not have reflected the appropriate criminality, having regard to totality.  His Honour was only seeking to use this question of connection in a very loose sense but - - -

McHUGH J:   What he says has got to be read against what the trial judge did, and it seems to be fairly plain that the trial judge did not apply totality.  He applied totality in respect of two matters, and then in respect of the matter committed on 27 January, he thought that was outside the totality principle.

MR KELEMAN:   Well, his Honour did not express himself in those terms.

McHUGH J:   He went close enough to it, did he not, at page - - -

MR KELEMAN:   We would submit that his Honour, in effect having regard to totality, ameliorated the sentence by making the first two sentences concurrent - and I am talking now about the sentencing judge - and he also altered the statutory ratio in relation to the final sentence which was accumulated in order to ensure that an appropriate period was given as an additional term, and that was measured against the total sentence, rather than the - that is, the total sentence imposed of seven and a half years, rather than the statutory ratio that would have applied had one only looked at the final sentence of some five years.

Now, this will involve some mathematics, and I apologise in advance for that.  But had his Honour simply imposed, in relation to the final five year term, the minimum period - an additional period that the legislature required - that would have involved a minimum term of three years and nine months and one year and three months as an additional term.  But what his Honour did do was impose, if you like, an effective additional term of some two years.  So, his Honour has reflected that in the way he has structured the total sentence, and to suggest that his Honour sort of applied totality only in respect to the first two sentences, and not in respect of the final sentence, we would submit ignores the way in which his Honour ultimately structured the total sentence.

KIRBY J:   Mr Keleman, what you are saying has force, and it may be that this application would ultimately fail.  But we all know that there is a case before the Court where the issue of totality is being considered by the Court.  The applicant asks to have the facility to address the Court on this point with the benefit of the Court’s decision.  He will not be released in the meantime.  The public is protected.  The Crown’s interests are protected.  Why are you opposing his having that facility?

MR KELEMAN:   I am simply making the submission.  If your Honours reject it, it is a matter for your Honours.  It is really a course for this Court to take.  I simply make a submission in that regard.

BRENNAN CJ:   The problem is that it is arguable.  One needs to put it no higher that the view taken in the courts below as to the operation of the so‑called totality principle of sentencing could affect the outcome of this application.  As the enunciation of that principle is reserved at the moment, it seems sensible that we should not embark upon the resolution of this case.  You may well be right, and we thank you for the submission that you have made.  I think that we can perhaps deal with it best by adjourning the matter and giving Mr Graham the opportunity to come back if and when he should be advised.

Mr Graham, we will not deal with this on the footing that we have part heard the application, we will simply treat the present application as one which has resulted in an adjournment, so that when the matter comes back you may or may not have the same bench of Justices hearing the special leave application.  But you are at liberty to restore the matter to the list when the judgment in the matter of Postiglione v The Queen has been delivered.

MR GRAHAM:   Thank you.

BRENNAN CJ:   In the meantime, the application stands adjourned.

AT 11.09 AM THE MATTER WAS CONCLUDED