Calcutt v The Queen

[2013] HCATrans 192

[2013] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 2012

B e t w e e n -

RYAN ASHLEY CALCUTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2013, AT 1.44 PM

Copyright in the High Court of Australia

MR G. O’L REYNOLDS, SC:   May it please the Court, in this matter I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Matouk Joyner Solicitors)

MR L.A. BABB, SC:   I appear in this matter with my friend, MR B.C. DEAN.  (instructed by Director of Public Prosecutions (NSW))

CRENNAN J:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, this case was previously before this Court nearly a year ago in September of last year, and as your Honours will perhaps know, it was adjourned to await the decision on identical issues by the New South Wales Court of Criminal Appeal in a case called Abbas.

CRENNAN J:   Yes.

MR REYNOLDS:   Abbas, of course, has now been determined and your Honours should have a copy of the decision.  The key issue in both Abbas and the present case is the interpretation of section 33(2) of the relevant Act ‑ and the provision is set out conveniently ‑ the relevant Act being the Crimes (Sentencing Procedure) Act 1999 (NSW) – at the bottom of page 7 of the decision in Abbas. The provision, as your Honours see, that section 33(2) at the bottom of the page simply says:

The court may take a further offence into account in dealing with the offender for the principal offence _

Now, the provision deals with a situation which is common and which arises frequently, both in this State and in all of the other jurisdictions, namely, where an offender has been convicted of a principal offence and asks the court to take account on sentence other admitted offences, or as they are called in this State, the Form 1 offences.  Now, the nub of the ‑ ‑ ‑

CRENNAN J:   I think the Chief Justice deals with the pointed issue in paragraph 22 of Abbas, page 17 of the copy you probably have, to the effect that a sentencing judge did not err when taking into account criminality in the light of “Form 1 offences”, that there was not a separate penalty for Form 1 offences.  Now, if that is right, Mr Reynolds, what is the question of principal said to arise post‑Abbas in this matter?

MR REYNOLDS:   Can I come to that directly?  The statute, of course, is silent on what is presently the critical question, namely, how does a sentencing judge take the other admitted offences, the Form 1 offences, into account?  Now, the submission which we have put – and this is in the application book, pages 101 to 102 – is that that question is to be answered by reference to the approach taken by this Court in paragraph 32 of the decision in Weininger.  That was the argument that was put to the Court of Criminal Appeal in Abbas and that approach, that is, the Weininger approach, was rejected by the court.

Now, Weininger involved a case of an informal admission of guilt of other offences.  Here, of course, there is a formal procedure for the admission of other offences.  The statute in Weininger, which was a Commonwealth provision, simply said other offences may be taken into account, and it did not go into the question of how they were taken into account in a statutory provision.  This Court in Weininger in construing the Commonwealth provision indicated very clearly how it was to be taken into account, and the relevant passage is set out in the Abbas decision – that is, the relevant passage in Weininger – at paragraph 82, and if your Honours can perhaps turn to that because this is the point of principal to your Honour Justice Crennan.

CRENNAN J:   Yes.

MR REYNOLDS:   We say that this is the principal of construction which should be adopted in relation to section 33(2), and whilst I think of it, also in relation to all the other jurisdictions, except Western Australia, which have a provision which simply says, other offences are taken into account. Now, if one looks at paragraph 82 then of Abbas it quotes the relevant provision, or the relevant paragraph, I should say, of Weininger.  If I can paraphrase that, your Honours will see that it says that:

A person who has been convicted of, or admits to –

I underline those words –

the commission of other offences –

then that will lead by some means to the imposition, or may lead to the imposition of a heavier offence.  How is it to be taken into account or how are those matters, that is, earlier conviction or admissions of earlier offences, to be taken into account?  Well, the answer is that the court gives effect to the well‑established principle that the character and antecedents of the offender are to be taken into account in fixing the sentence.

So what that means is that the past offences, prior convictions, and admissions of other offences are assimilated, and they both taken into account in accordance with what is described as a well‑established principle of sentencing via their relevance to both character and antecedents, and then that is placed as part of the overall synthesis of various matters in the sentencing process. That, we say, is how section 33(2) also should have been construed and that there was no reason for not construing it in the same way ‑ ‑ ‑

CRENNAN J:   Well, how do you distinguish Weininger from the passage in the Chief Justice’s decision to which we were looking – at which we were looking before?

MR REYNOLDS:   Because it does not adopt Weininger, it is inconsistent with it.  The Court – and I will come to this in a moment – rejected the Weininger approach, and insofar as the Chief Justice does not adopt Weininger I submit that his approach is wrong and he should have followed what this Court said on relevantly identical legislation in the Weininger case.

KEANE J:   Why does he decline to follow Weininger?

MR REYNOLDS:   Well, that, with respect, is a trifle – a rather ‑ ‑ ‑

CRENNAN J:   It is inferred, is it?

MR REYNOLDS:   Well, yes, but he does not deal with it directly at all, is the short answer to your Honour’s question, but Justice Hoeben does, and I will come to this if I may in due course.  He rejects it outright at paragraphs 100 to 101 and two other judges agreed with him, so there is no question that the Weininger approach is rejected.  On no view, I submit, could one take the Chief Justice’s judgment or any of the other judgment ‑ ‑ ‑

KEANE J:   I am looking at paragraph 101:

The attempt to support the submission by reference to what was said by the majority in Weininger at [32] is misconceived.

MR REYNOLDS:   Yes.  Well, Justice Hoeben rejects the very proposition that I am putting to your Honours, and two other judges agree with him, nor does the Chief Justice embrace Weininger – he does not say these matters should be taken into account, that is, past admitted offences, via the notion of prior character and antecedents; he does not say that at all.

KEANE J:   Why is not Weininger saying you can take these other matters into account with a view to determining whether the offence – the offending for which the person is being sentenced is characteristic and if it is ‑ ‑ ‑

MR REYNOLDS:   It does.

KEANE J:   Well, if it is, then why would it not mean that considerations, for example, of personal deterrents warrant a heavier sentence than otherwise would be imposed?

MR REYNOLDS:   Well, what Weininger says is that when dealing with prior convictions or with admitted offences, as here and as in Weininger, they are relevant to character antecedents and then there are a whole lot of factors that we do not need to go into that are relevant, including character antecedents, and that therefore past convictions and other admitted offences will be factored into this synthesis process and will therefore become relevant to the ultimate sentence that is given and, of course, will tend to make the sentence heavier.

That is not the approach the Court of Criminal Appeal have adopted.  First of all, they have specifically rejected the Weininger approach. We submit there is not any relevant distinction between the Commonwealth provision or section 33(2), and the only factual distinction is between a formal and informal admission and we say that is not a relevant distinction.

Now, Justice Hoeben deals with Weininger at paragraphs 100 to 101 and we respectfully submit that the three points that he makes there are not sustainable. The first is at paragraph 101 where he says that the High Court majority in Weininger were:

not seeking to state a principle with general application –

If your Honours go back to the statement from Weininger, they are interpreting the statutory provision in the light of a well‑established principle, which does not sit easily with Justice Hoeben’s comment. The second matter is that Justice Hoeben says at the beginning of paragraph 100 that section 33(2) does not state that it is to be read by reference to that well‑established principle referred to in Weininger.

That is not a point of distinction with Weininger because Weininger – in Weininger the statute did not do that either.  In both statutes the provision is silent about how offences are to be taken into account.  The High Court has said in relation to the Commonwealth provision that it is to be taken into account on character and antecedents in accordance with a well‑established principle of sentencing law.  I ask ‑ ‑ ‑

CRENNAN J:   The real point, and it is the point here, is it not, Mr Reynolds, is the one teased out in paragraph 102, which is taking into account the Form 1 offences which might on occasion lead to a heavier sentence for the principal offence, but that is not – as explained by the Chief Justice – a punishment in respect of the Form 1 offences.

MR REYNOLDS:   No.  Well, it is not a punishment for the Form 1 offences, and I will come back to Justice Hoeben in a moment, but just to explain, I hope clearly, the difference between the two approaches.  On the Weininger approach prior convictions and other admitted offences are relevant to character and antecedents and then they are factored in as part of a broader process.  What is the difference between Weininger and the Court of Criminal Appeal’s approach?  The answer is in the Court of Criminal Appeal’s approach what they do is they take a sentence which would have been otherwise appropriate for the principal offence and they then add onto that a further sentence to reflect the additional criminality in the other admitted offences.  Now, if one embarks upon that process – and it is the nub of this application ‑ ‑ ‑

CRENNAN J:   That is your ground of appeal.

MR REYNOLDS:   ‑ ‑ ‑ that is inevitably bound to lead to higher sentences than if one approaches prior admitted offences and convictions as part of a broader inquiry, looking at a number of matters and principally in relation to antecedents and character, which will then be part of an overall assessment of what is an appropriate sentence.  Now, on both approaches there is likely by virtue of the admitted offences to be a greater sentence than there would otherwise have been, but it is quite a distinction of approach between those two methods of taking into account the admitted offences.

So, if I can just finish, if I may, with Justice Hoeben’s points?  I have dealt with the first two.  In paragraph 100 in the last six lines he says that Weininger is contrary to the Court of Criminal Appeal guideline judgment because the guideline judgment says that the court should punish the offender for the Form 1 offences whereas Weininger at paragraph 32 says the court is not to punish the offender for those earlier offences.

There are two problems with that.  The first – and this is a matter pointed out by Justice Campbell at paragraph 256 – is that that is a clear, with respect, misinterpretation of the guideline judgment which says just the opposite.  It says that a court punishes only for the principal offence, not for the other offences, and it may be that the reason Justice Hoeben has made that error is that on the previous page where he quotes the relevant portion of the guideline judgment – this is page 45 at about point 5 – he misquotes the relevant words, stating “which are offences” instead of “when there are offences”.

The other aspect of that, your Honours, is that if the 2003 High Court judgment is inconsistent with the 2002 Court of Criminal Appeal guideline judgment then we say it is clear what the Court of Criminal Appeal should have done, namely, they should have adjusted the earlier guideline judgment to fit with Weininger. So that the nub of this difference of approach is, as I say, that the approach taken by the Court of Appeal – which is perhaps best summarised by Justice Basten at paragraph 64 of Abbas, this is pages 32 to 33 – where he says at the end of paragraph 65 that the guideline judgment did not reject an effective increase in the sentence for the principal offence on account of the additional criminality revealing the admitted further offences.  Then earlier on in paragraph 64 he says that the guideline judgment:

envisaged that taking into account further offences might increase the sentence imposed for the principal offence in a way which could be said to punish “for” the further offences.

Now, there are similar passages in the guideline judgment.  Importantly, that is the very approach that was taken by both the primary judge and by the Court of Criminal Appeal in the present case.  If your Honours go to page 89 in the application book, in paragraph 76 which is the bottom of page 89, Justice Latham says that:

It warranted an increase in the sentence otherwise appropriate to the principal charge –

And at paragraph 68 on page 86, she says she does not agree that “the Form 1 offence did not add to the applicant’s criminality”, it was a “separate and serious matter” and must lead to an increase in the sentence.  So your Honours can see what is going on here.  There is an assessment of what is an appropriate sentence under this approach and then a jacking up to reflect the added criminality for the Form 1 offences.

That, as I have submitted, inevitably leads or in most cases lead to a much higher sentence than the overall synthesis approach which we say was adopted in Weininger, and I go so far as to submit that the Court of Criminal Appeal should have applied it, given that there was no relevant distinction between the two statutes.  So if I can summarise my application in these points; first of all, the question of whether the Weininger approach by reference to a well‑established principle should be adopted is an important question.

Second of all, as I have indicated, there are serious problems with the Court of Criminal Appeal’s rejection of the Weininger approach.  Thirdly, the correct manner of taking account of other admitted offences is, we submit, an important sentencing issue as instanced or as witnessed by two five‑member Court of Criminal Appeal courts to consider this very problem.

Fourthly, this issue, and your Honours will have seen our packet of legislation, this issue does arise in all the jurisdictions around Australia except Western Australia because every one of them says that other admitted offences may be taken into account, but critically they do not say how.  Fifthly and finally, it raises a short but we say important question of law which would be determined in a half day and where your Honours could deal with the relevant point and, if so advised, remit the matter for resentencing to the Court of Criminal Appeal.  Your Honours, if the Court pleases, those are my submissions.

CRENNAN J:   Thank you, Mr Reynolds.  We will not trouble you, Mr Babb.

The applicant applies for special leave to appeal to this Court from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which found, by majority, that no lesser sentence was warranted in law than that imposed by the trial judge. 

The applicant now seeks to question the correctness of the Form 1 sentencing procedure, which allows a court to take into account other offences with which the offender has been charged, but not convicted, when sentencing an accused for a principal offence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That question was recently determined by a unanimous decision of five Justices of the Court of Criminal Appeal of New South Wales – Abbas, Bodiotis, Taleb and Amoun v The Queen [2013] NSWCCA 115 which we are not persuaded differs in principle from Weininger v The Queen (2003) 212 CLR 629 which dealt with the broad application of the expression “take into account”.

The applicant seeks to raise the question for the first time on appeal to this Court, but no issue of principle of general importance arises.  Further, we are not persuaded that it would be in the interests of justice generally, or in this particular case, that there be a grant of special leave.  Special leave is refused.

MR REYNOLDS:   If the Court pleases.

MR BABB:   May it please the Court.

AT 2.04 PM THE MATTER WAS CONCLUDED