Case v The Queen

[1998] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S93 of 1997

B e t w e e n -

JASON ANDREW CASE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 3.05 PM

Copyright in the High Court of Australia

MR P.M. STRICKLAND:   I appear for the applicant.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC:   May it please your Honours, I appear with my learned friend, MR R.D. ELLIS, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   Mr Strickland, you need an extension of time, do you not?

MR STRICKLAND:   Yes, please.

GUMMOW J:   You are not in a shop.  Where is the affidavit in support of the application ‑ ‑ ‑

MR STRICKLAND:   The affidavit is set out - the affidavit sworn by Ms Farnan on application book page 49.

GUMMOW J:   What is the period of delay outside the permissible period?  Is it very long?

MR STRICKLAND:   No, it is not, your Honour.  It is a matter of a couple of weeks.

GUMMOW J:   Is there any opposition?

MR HOSKING:   There is no opposition to it, your Honour.

GUMMOW J:   We will grant the extension of time.  Let us get to the merits of your application.

MR STRICKLAND:   This application raises a question of general importance concerning the application of the principle of parity.  The specific question is how does the principle of parity apply, if at all, where co-offenders have been sentenced and the court considers those sentences are extremely lenient.  The decision of the Court of Criminal Appeal and the line of authority it follows effectively erodes the principle of parity, and it effectively erodes the principle of parity because it ‑ ‑ ‑

GUMMOW J:   What is the principle of parity?

MR STRICKLAND:   The principle of parity is that if all things are equal ‑ ‑ ‑

GUMMOW J:   Then that is a problem here, is it not?

MR STRICKLAND:   It is a problem that cuts both ways because, in terms of the objective gravity of the offence, there are differences but the differences are in the applicant’s favour, namely he, according to the finding of the primary judge, played a lesser role, albeit not much of a lesser role, than the two co-offenders and the two co-offenders, within 20 minutes or 30 minutes of committing the first offence, committed another offence.

GUMMOW J:   Yes.

MR STRICKLAND:   And one of the co-offenders, Brady, had other matters taken into account on a form 2 schedule.

GUMMOW J:   What are the factors to be taken into account - what are the integers in this process of all things being equal?  You mentioned gravity of the offence.

MR STRICKLAND:   Yes.

GUMMOW J:   What else goes into the scales?

MR STRICKLAND:   Antecedents, and in that respect the applicant compares unfavourably to the co-offenders.  But in relation to the antecedents, the Court of Criminal Appeal in this case found that those subjective differences do not account for the manifest disparity in sentence.   So one looks for what is the principle or what is the reasoning that the Court of Criminal Appeal failed to apply the principle of parity.  That reasoning is found in the judgment at page 41 of the application book at line 5 where the Court of Criminal Appeal finds that its discretion to intervene because of the manifest disparity is enlivened but they decline to exercise their discretion.  The reason they decline to exercise their discretion is because the sentences that they are comparing with are too lenient.  Page 41 line 5:

The assessment of these earlier sentences is relevant to the exercise of this Court’s discretion.

GUMMOW J:   What your case comes down to is that your client should be treated too leniently as well.  Is that what it comes to?

MR STRICKLAND:   It comes down to it should either be treated as leniently as Mr Brady or, alternatively, there should be a substantial reduction in his sentence to, if not eliminate the disparity, at least reduce it significantly.  That is what the case comes down to.  The Court of Criminal Appeal chose neither approach.  The reason they chose neither approach was where, in my submission, the error lies, namely ‑ ‑ ‑

GUMMOW J:   Where is the crucial passage?

MR STRICKLAND:   The crucial passage is - there are a number.  The first is page 41 line 5:

The assessment of these earlier sentences is relevant to the exercise of this Court’s discretion.

The next crucial passage is at page 42 where they cite the decision in Diamond which is really the essence of the court’s reasoning.  It is at page 42 line 16:

There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one.

Then at page 43 line 10 ‑ ‑ ‑

GUMMOW J:   That is really intruding - do you say that intrudes, and intrudes impermissibly, over all community interest in all of this?

MR STRICKLAND:   Yes.  And what that line of reasoning does is, first, in my submission, it is illogical, because where there is an extremely lenient sentence, ordinarily the ‑ ‑ ‑

GUMMOW J:   The law is not only logic, it is also what is shown as high technique.

MR STRICKLAND:   Yes, indeed.  But it is not simply logic, but the essence of parity is that there is a justifiable sense of grievance.  The grievance is heightened when the disparity is at its greatest.  As the Court of Criminal Appeal says, if the sentences are too lenient, then we will effectively disregard the principle.  That is why, in my submission, the principle is eroded by the finding.

Secondly, not only is the touchstone of the principle the sense of grievance on the applicant, but it is also the erosion of public confidence in the administration of justice when the innocent or the objective bystander cannot understand why there is such a disparity in the sentences.

Your Honours, this is a point that is of public importance because questions of parity very frequently come into play in sentencing courts, both at first instance in the Local Courts and the District Courts and also they very frequently occur in appellate courts.  They occur a lot because there are often matters where there are multiple offenders.  There is a marked difference in approach between and within State courts.

GUMMOW J:   That is inevitable, really, given the flexible nature of the criteria, but look at page 44, starting at line 10 on 44.  Is that not the crucial passage?

MR STRICKLAND:   Yes, it is, and it follows the reasoning that I had identified before.

GUMMOW J:   Yes.

MR STRICKLAND:   Your Honour, apart from the - I have identified one ‑ ‑ ‑

GUMMOW J:   You say that exposes the point of general principle?

MR STRICKLAND:   That is correct.  Your Honour, apart from what I have referred to as the eroding the principle of parity, the other problem with the court’s reasoning is that it produces anomalous results, namely, if the sentence one is comparing it with is low, pardon the pun, if it low but not extremely low, then parity can apply.  But if it is extremely low, then the court will exercise its discretion not to intervene.

CALLINAN J:   This, in a way, is a striking case in the sense that it occurs to me that the two other offenders were, as the Court of Criminal Appeal said, treated extremely and really unjustifiably leniently and that, it seems to me, is your problem.  In a curious kind of a way, had they have been treated leniently but not as leniently as they were, you might have a stronger case.  It is a curious consequence, but I think it is a real possibility.

MR STRICKLAND:   Indeed.  Your Honour, there are perhaps two points to be made.  The first is that there is an in-built safeguard in the system of sentencing, namely a Crown appeal against excessively lenient sentences.  Crown appeals are of increasing frequency ‑ ‑ ‑

CALLINAN J:   Yes, but look, I would not be critical of the Crown in virtually any case in electing not to appeal.  There are many many considerations which must engage the mind of the Crown, including resources and all sorts of other matters.

MR STRICKLAND:   Certainly, your Honour.

CALLINAN J:   Sorry, I did not mean to interrupt you, but I do not think that is a very persuasive proposition.

MR STRICKLAND:   If the Court pleases.  The second point is that there is authority in Lowe and in Postiglione that parity can apply to reduce a sentence to a point where it is, in fact, inadequate.  The authority for that proposition is in Lowe by the decision of Justice Mason at pages 613 and 614.  The very last paragraph on page 613:

What I have already said provides an answer to the second question: 

The second question is this:

what is the correct principle to be applied in cases of discrepancy?  It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.

CALLINAN J:   Did anybody agree with that proposition?

MR STRICKLAND:   Not expressly, no, but Justice Dawson, in my submission, implicitly adopts it.  At pages 623 and 624 the key passage of his decision - or perhaps at page 624, the very first sentence.  The touchstone for intervention is:

The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice.

He then refers to the decision of the Victorian Court of Appeal in Pecora and the New South Wales Court of Criminal Appeal in Tisalandis.  Now, those two decisions expressly are consistent with Justice Mason’s decision in Lowe.  If I might refer briefly to the decision of Tisalandis, which appears to be followed by Justice Dawson in Lowe, Tisalandis at page 431, the Chief Justice at the bottom of page 431, the fourth‑last sentence, states:

the Court of Criminal Appeal will not refrain from interfering with a sentence which, in the absence of particular disparity, would not have been the subject of appellate intervention.  In the interests of justice it has at times been thought necessary, in eliminating or diminishing disparity, to reduce a sentence to a level which could probably be criticised as inadequate. 

CALLINAN J:   That point that her Honour Justice Simpson makes, though, that is referred to in the case - mentioned at page 44 ‑ ‑ ‑

GUMMOW J:   That seems to get left behind in these other formulations.

MR STRICKLAND:   The appearance of justice which is referred to by a number of Justices of the High Court in Lowe, in my submission, really refer to the linking between an applicant who has a justifiable sense of grievance and the even-handed bystander who cannot understand why there is such a discrepancy, such a manifest disparity in sentence.

CALLINAN J:   Justice Simpson’s proposition is that the fair-minded bystander would be equally outraged if he or she were aware that this other person was going to get a significantly shorter sentence or a much more lenient sentence.

MR STRICKLAND:   And that, your Honour, is precisely the tension that lies between the principle of parity and the principle that a sentence must reflect the objective gravity of the offence.

GUMMOW J:   That is right, and we accept that.  But just stopping there for a moment, that being so for the purposes of argument, do you not then run into what Mr Hosking says on page 61 in paragraph 3 of his submissions and on paragraph 6 which is that the Court of Criminal Appeal is well aware of all of this.  These things go into the mix.

MR STRICKLAND:   But they applied the wrong principle.  They exercised their discretion by applying the wrong principle.  They applied what I refer to in the written submissions as the first approach.  If the sentences are too lenient we will not reduce the sentence, we will effectively disregard the principle of parity.  That is the error in principle because it attaches no weight to the issue of parity.  The way Justice Callinan’s dilemma is resolved is ‑ ‑ ‑

GUMMOW J:   You had better assume it is mine too.

MR STRICKLAND:    ‑ ‑ ‑ the Court’s dilemma is resolved is not by ignoring the principle of parity but by giving a significant reduction in the sentence; that is, it is not submitted necessarily that the Court of Criminal Appeal should have reduced the sentence to the same level, but a significant reduction would have taken into account the principle of parity.

CALLINAN J:   But it seems to me that that is what the Court of Criminal Appeal did; that the Court of Criminal Appeal did try to weigh up these factors and that there is no error of principle in the way in which the intermediate court did.  Your appeal is against the decision of the Court of Criminal Appeal.

MR STRICKLAND:   Indeed.

CALLINAN J:   I do not think, with respect, that you can say that the Court of Criminal Appeal ignored the question of parity.  It seems to me they gave it full consideration.  Minds might differ whether a different Court of Criminal Appeal might have given more weight to parity and less to, say, Justice Simpson’s proposition, but your difficulty is criticising a decision which did take into account, it seems to me, all of the relevant principles.

MR STRICKLAND:   Your Honour they considered the principle of parity, there is no doubt about that, exhaustively.  Not exhaustively, they considered it but they, in my submission, misapplied the wrong principle, because when one looks at the whole passage of their reasoning, the essence of their reasoning was, “Because the other sentences are too lenient, we will effectively disregard the principle of parity.”  That is the first approach.

The second approach is outlined in the decision of Capper, which is that one can resolve the tension by - this is at page 74:

When a co-offender has been treated with excessive leniency, justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence -

Now, in this case, it cannot be reasonably said that there was no room to reduce the applicant’s sentence.  It was a sentence that was 60 per cent of the maximum penalty for this offence.  There was a plea of guilty.  The applicant was only 19 years of age.  It cannot reasonably be said that there was no room for a downward adjustment.  That point needs to also be taken into consideration with the point made by Justice Mason in Lowe, namely where one deals with parity, where there is this manifest discrepancy ‑ ‑ ‑

CALLINAN J:   I think your problem about Justice Mason’s proposition is that none of the other Judges, with the exception possibly of Sir Daryl Dawson, seems to have adopted it.  I have some doubt about that, too, I might say.

MR STRICKLAND:   But, your Honour, with the possible exception of Justice Brennan, as he then was, there was no one disputing it.  No one in the High Court in Lowe disputes that proposition.

CALLINAN J:   I do not know about that.  I would need a lot of persuading, with all due respect, about it.

MR STRICKLAND:   But, your Honour, that, in my submission, is another reason why special leave ought to be granted, to resolve the dilemmas - the differences within the High Court and within the State courts and between the State courts as to what the proper approach is.

CALLINAN J:   One of the problems about that is sentencing can be very very much a matter of local informed knowledge:  the prevalence of an offence, circumstances pertaining in the State and things of that kind, weighed with personal factors and, really, you are saying that the judges who sentenced the other offenders must have given too much weight to the personal factors attaching to them.  But that does not really assist you in your application, I do not think.

MR STRICKLAND:   Can I seek an extension of time to answer that question.

GUMMOW J:   Yes.

MR STRICKLAND:   Your Honours, the Court of Criminal Appeal accepted the subjective factors did not account for the disparity.  The local factors which do exercise sentencing judges and courts of appeal were not relevant in this particular case.  Why this matter deserves special leave for appeal is because it raises an important question of principle about how does one apply this principle where the co-offenders’ sentences are extremely lenient.  It is the differences, the fundamental differences in approach that merit the special leave for appeal, together with what, in my submission, is the error of principle disclosed.  They are my submissions, your Honours.

GUMMOW J:   Thank you, Mr Strickland.  We do not need to trouble you, Mr Hosking.

Notwithstanding the able submissions of counsel for the applicant, the Court is not persuaded that there is a sufficiently strong case for special leave to test the proposition that the Court of Criminal Appeal failed to take into account the factors involved in an application of what has been called the “parity principle”.  Accordingly, the application for special leave is refused.

AT 3.27 PM THE MATTER WAS CONCLUDED