Campbell v The Queen

[1997] HCATrans 47

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 1996

B e t w e e n -

DONALD TORQUIL CAMPBELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 11.10 AM

Copyright in the High Court of Australia

MR S.G. LANGSLOW:   If the Court pleases, I appear with my learned friend, MR G.P. MULLALY, for the applicant.  (instructed by Stary & George)

MR J.D. McARDLE:   If the Court pleases, I appear on behalf of the respondent.  (instructed by P.C. Wood, Solicitor, Office of Public Prosecutions (Victoria))

DAWSON J:   Mr Langslow.

MR LANGSLOW:   If your Honour pleases, shortly, this is an application relating to the discretion of sentencing judges and it is put that this Court has an opportunity in this case to say that the sentencing discretion is not proscribed by any fetter relating to a necessity to order some, either partial or total, cumulation where the sentencing judge is dealing with offences which are themselves not linked in fact.

KIRBY J:   The new provision in the Victorian Sentencing Act still permits the court to “otherwise direct”, does it not?  It still reserves the right of the court to otherwise direct that the sentences be served concurrently or cumulatively.  It is still open to the court.

MR LANGSLOW:   I am not sure that I understand that, your Honour.

KIRBY J:   The old rule used to be, prima facie, concurrent and then the Sentencing Act changed that but it still reserves the right of the sentencing judge or a Court of Criminal Appeal or Court of Appeal on appeal to “otherwise direct”, and is that not what happened in this case?  They obviously thought that the sentence that had been imposed by the sentencing judge was too lenient.  I must say I think there is some force in that instinctive reaction.

MR LANGSLOW:   That may have been the instinctive reaction of the court but, in effect, and with respect, your Honour, all that means is the substitution by one judicial mind or three judicial minds in that case - for the mind of the judge who had the primary responsibility and was in the best position to decide the matter.

DAWSON J:   What do you say was wrong with the decision of the Court of Criminal Appeal?

MR LANGSLOW:   What we say, your Honour, is - - -

DAWSON J:   It is the Court of Criminal Appeal, is it not?

MR LANGSLOW:   Yes, your Honour.  The Court of Appeal I think it is.

DAWSON J:   The Court of Appeal, yes.

MR LANGSLOW:   What we say, your Honour, is that they applied a fetter to the sentencing discretion by requiring - the effect of their judgment, we contend, is to require sentencing judges to order at least partial cumulation when sentencing an offender on multiple offences.

DAWSON J:   When it is appropriate and it was said to be appropriate in this case.

MR LANGSLOW:   When it is appropriate, then, with respect, is really not ‑ ‑ ‑

DAWSON J:   And one has to bear in mind that you cannot have an offender who commits an offence being in the situation then with impunity being able to go out and commit a series of other offences.

MR LANGSLOW:   With respect, the discretion that the sentencing judge has is wide and in relation to such matters must vary - the full range, from ordering no cumulation to ordering total cumulation and in this case the sentencing judge accepted the plea that there be no cumulation and ordered none.

DAWSON J:   And the Court of Appeal said wrongly.

KIRBY J:   Do you say that the construction of the Sentencing Act is that it is either one or the other, you cannot have partial cumulation?

MR LANGSLOW:   No, no, I do not say that.  There is a range, ranging from no cumulation to total, and it cannot be the case - and we contend that it must be so that the range is as wide as that but that the Court of Appeal effectively, we suggest, by their judgment eliminated the lower level, that is, no cumulation.  This case would stand as a ruling, in our submission.

DAWSON J:   A ruling of what?

MR LANGSLOW:   A directive to sentencing judges that where there are a series of disconnected offences being dealt with at the one time, the sentencing judge must order cumulation of some sort.

DAWSON J:   Could you direct me to the passage in the judgment of the Court of Appeal on which you rely for that proposition?

MR LANGSLOW:   Yes, your Honour.  Page 59 of the application book ‑ ‑ ‑

KIRBY J:   Page 59, 20, they say that:

in the circumstances of the present matter, some order for partial cumulation - - -

MR LANGSLOW:   I appreciate that, your Honour, but then one must look at the circumstances of the present matter and see what it is that there is about those circumstances which is anything other than simply that there are a series of offences which are not themselves connected in fact.  What we say is that that is the case but the judge found another link which would justify it in his mind in the circumstances.

DAWSON J:   What, that this was a period of great turmoil in the man’s life?

MR LANGSLOW:   Yes, an episode in his life and says so in the course of his sentence, that that was the reason why he considered cumulation and decided not to exercise his discretion to cumulate.

DAWSON J:   Mr Langslow, correct me if I am wrong, but the law before section 16 was that unless otherwise ordered, sentences were cumulative, was it not?

MR LANGSLOW:   That is right.

DAWSON J:   This is a complete reversal.  What was the reason for the reversal?

KIRBY J:   Cost of imprisonment.

MR LANGSLOW:   Cost of imprisonment, yes, I suppose.  I really cannot answer that, your Honour, I do not know the reason for the change.  I suggest, because it has occurred that way, it means that what the sentencing judge is obliged to do is to consider cumulation in those circumstances and either decide to cumulate or not in the exercise of his discretion.  As I put it, this ruling could be taken to mean that the lower limit, that is, no cumulation, is not any more a discretion that can be exercised in such circumstances. 

Now, I was asked to draw attention to the passage in the judgment.  It is the foot of a quotation from the case of Dube & Knowles at line 14 where this passage appears.

It is of the utmost importance that the impression should not be gained that if a crime is committed, another crime of the same sort can be committed with little or no increase in the punishment.

And then having quoted that, the Court of Appeal said:

We consider that, in the circumstances of the present matter, some order for partial cumulation was clearly called for and that in this respect His Honour fell into error.

I put it that the circumstances are as I have stated them, that the only circumstance is that there was not a connection between three groups of criminal activity apart from the personal one.

KIRBY J:   Why?  There was an appeal and the appeal came to the duly constituted court.

MR LANGSLOW:   Yes, your Honour.

KIRBY J:   And I think they referred to the need for restraint and care and lower sentence than you would have sentenced at first instance but they clearly thought that despite the reasons of the primary judge, the sentencing judge, that he had fallen into error.  Now, it is at least open to argument the theft of toys and the involvement in that and the car parts is of a different character than the involvement in drugs.  Now, I do see that they can be seen in a personal sense as all involved in the chaos of this man’s life for which one cannot but have some sympathy, but the fact is that it is of a different character.  Parliament attaches very different penalties and serious penalties.  Now, inherent in your proposition is that once you got involved in the toy theft you can go off and be involved in drugs and then you can perhaps throw in a little bit of violence and nothing can be done.

MR LANGSLOW:   No.

KIRBY J:   That cannot be so.

MR LANGSLOW:   No, indeed, that is not what is put at all.  It is put that, in truth, it is an everyday occurrence where sentencing judges are dealing with persons, say, drug addicts who do a bit of stealing, do a bit of robbing ‑ ‑ ‑

KIRBY J:   It was not suggested your client was a drug addict.

MR LANGSLOW:   No, no, it was not.

KIRBY J:   He was not in it because of his personal addiction.  That would take on an entirely different character if that had been so. 

MR LANGSLOW:   No, no, it was not, your Honour, suggested at all.  It was suggested that - - -

KIRBY J:   He was in it for the same reason as the toy thefts and the car parts, money.

MR LANGSLOW:   Yes.

KIRBY J:   And that, you say, gives the common link, but they are of a different character.  One are goods that are really - goods and pieces, and the other are drugs that can affect the lives of others.

MR LANGSLOW:   I appreciate that and no doubt the learned sentencing judge was alive to the differences.  He must have been, he heard the trials.  They were separate trials.  There was a trial relating to the drug matter and there was another trial relating to the burglaries and he presided over both of them, end for end.  So that he was alive to all those circumstances.  He heard the applicant give evidence twice.  He saw his conduct in the court over a period of a month or more and was in the best position of anybody.

KIRBY J:   Yes, but the Court of Appeal acknowledged his advantages.  They acknowledged the caution but they still had their function to perform.

MR LANGSLOW:   Yes.

KIRBY J:   I think we have to listen with care to you because, in effect, this is the first level of appeal against what is, in effect, the custodial sentence.  Is that not correct?  

MR LANGSLOW:   That is so, your Honour.

KIRBY J:   The custodial sentence was suspended by the primary judge.

MR LANGSLOW:   That is right.  That is a sentence of imprisonment but he was not called upon to serve it immediately.

KIRBY J:   He counted the service up until that date, up until his sentence as sufficient.

MR LANGSLOW:   That is right, yes.  So, nonetheless, what is put is this, that it appears that from the test which was applied by the Court of Appeal to the question of whether there was error or not is, in our submission, on the face of it, they could not have applied what we submit is the correct test.  If one looks at Clarke’s Case, what we say would have been necessary for the Court of Appeal to have found was that the sentence was so disproportionate to the seriousness of the crime as to shock the public conscience.  We put it that that could not be the case here when the alteration, taking into the account the discount, as it were, given because of the double jeopardy point - - -

KIRBY J:   Their Honours refer to all this at page 57 at line 6.

MR LANGSLOW:   Yes, they do.

KIRBY J:   You say they had it in their minds; they referred to it but they really ignored it?

MR LANGSLOW:   It must be so, it is put, because the difference in the sentence imposed by the learned sentencing judge and by the Court of Appeal is not great.  It just simply meant that the applicant was obliged to serve, under the Court of Appeal order, a period in prison immediately of about 12 months.  What is put is that if that is all the difference that is called for in these circumstances, it must be that the correct test was not applied by the Court of Appeal and that they have not got to the stage of being able to say that the disproportionate nature of the sentence was such as to shock the public conscience.

KIRBY J:   The Court of Appeal on this occasion contained at least two judges who are extremely familiar with the criminal law and the practice in the State and who have sentenced many people.  So, it really was the accumulated wisdom of the Bench.  They apparently did feel it shocked their conscience.

MR LANGSLOW:   Well, they did not say so.

KIRBY J:   I have to say my reaction to it was it was a very, very light sentence given this was a solicitor, it was a cumulation of serious offences and it had the added step-up of a drug involvement which Parliament declares to be a very serious offence.

MR LANGSLOW:   Yes, all those things are correct.  However, they were dealing with an appeal from a judge who we all know - perhaps your Honour does not, but one of the most experienced judges in the County Court and who is to say that the experience of the judges to whom your Honour refers is superior to the experience of that judge?

KIRBY J:   The law.

DAWSON J:   The law. .....have to sit on the Court of Appeal.

MR LANGSLOW:   For that reason alone, but he has the primary discretion available to him.  It is possible for the court to have pointed to an error of the character referred to in Clarke’s Case, your Honour, such as that it would shock the public conscience.  It is put then simply to consider that some period in custody is called for in the circumstances of the case is simply to substitute a view of the facts for the view of the sentencing judge and, in our submission, that should not be done. 

So what we say, if the Court please, is that in effect this decision of the Court of Appeal could and would be taken.  I appreciate the words “in the circumstances of the present matter” in the judgment but when one looks at those circumstances, one would have to say that this judgment would be taken as a directive to sentencing judges that where they are dealing with offenders convicted of separate offences, disparate offences, some cumulation at least must be called for, and that they cannot consider the position of no cumulation as the sentencing judge in this case did.

Now, what we put is that that is an important principle and if the discretion of sentencing judges are circumscribed by such a rule then, inevitably, it will be the case that sentences will get longer in this State because of that constraint on discretion.

KIRBY J:   I just do not see how you can argue that because their Honours have clearly tied it into the circumstances of this case.  Every case will be different.  That is the genius of our sentencing system.

MR LANGSLOW:   Save, one can always say, “Can you divorce this particular appeal in the Court of Appeal from having a binding effect or a ruling effect in relation to the circumstances in other cases?”, and it is put that when the circumstances of the case are understood, as set out in the judgment of the Court of Appeal and read in that light, then it will be taken

as being applicable to like circumstances as is set out in the judgment.  So that is why we put it that this Court ought to take the opportunity to say that if that is the way it turns out that the sentencing discretion of sentencing judges is not fettered in the way which we suggest, that the judgment of the Court of Appeal in this case will be taken to have fettered the discretion.  If the Court pleases.

DAWSON J:   Thank you, Mr Langslow.  The Court need not trouble you, Mr McArdle.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision or of the reasons below to warrant the granting of special leave to appeal.  Special leave is accordingly refused.

AT 11.30 AM THE MATTER WAS CONCLUDED