Clare v The Queen

[2001] HCATrans 367

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B65 of 2000

B e t w e e n -

WILLIAM LEVI CLARE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 12.06 PM

Copyright in the High Court of Australia

MR W.L. CLARE appeared in person. 

MS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Clare. 

MR CLARE:   Thank you, your Honour.  Your Honours, it appears to me that the first issue that I have to address are the errors of principle that have occurred in the lower courts.  Not only the principles have been violated, but certain statutes of the law have been erroneously dealt with.  The errors of principle that have occurred in considering the disparity of sentence are evidenced in Postiglione v The Queen (1996-1997) 189 CLR 295 per Justices Dawson, Gaudron, McHugh, Gummow and Kirby; (b) Gordon v Whybrow CA10/98, per Fitzgerald P and Davies JA; and (c) Lowe v The Queen (1984) 154 CLR 606 per Chief Justice Gibbs and Justices Mason, Brennan, Wilson and Dawson. As far as the totality principle is applied, the principles of error occurred ‑ ‑ ‑

KIRBY J:   I do not think you need to tell us.  We know those principles.  We know them very well.  So what do you say is the error in your case that offended those principles? 

MR CLARE:   I will take you to those parts where I say that they occurred, your Honour, if I may. 

KIRBY J:   We know the disparity principle.  We know the totality principle.  Now, what do you say is the offence to those principles in your case?

MR CLARE:   I have outlined them in my argument to you, and I only wish to direct you to certain points that occurred.  I was going to refer the Court to the case of Morrison on the sentencing errors, where the sentencing judge exceeded his discretion, and also to bring to your attention the fact that the Crown, at final sentencing, tried to introduce the precedents for attempted murder where the charge was attempt to procure someone to commit murder, and that ‑ ‑ ‑

KIRBY J:   Now, the other accused got five years, and you got eight years.  That is correct, is it not? 

MR CLARE:   That is right, your Honour.  He got five suspended ‑ ‑ ‑

KIRBY J:   But the other accused had second thoughts about it and, in fact, as I understand it, informed the authorities about the offence.  Is that correct?

MR CLARE:   On the morning it was due to happen.

KIRBY J:   Yes.

MR CLARE:   He got five years suspended after 12 months, your Honour.

KIRBY J:   They are very significant differential factors relating to his criminality and yours, or at least it was open to the Court of Appeal to so conclude.

MR CLARE:   Yes, that is correct.

KIRBY J:   That seems to put your disparity argument out the window.

MR CLARE:   No, your Honour, the Court of Appeal and the sentencing court both declined to recognise 658 days of pre-sentence custody that I had suffered and, in addition ‑ ‑ ‑

GLEESON CJ:   But that was not pre-sentence custody referable to this offence, was it?

MR CLARE:   Yes, your Honour, it was.  That is why I am carrying on about it.  I was imprisoned on 30 April 1997 on these charges and these charges alone.  Now, this charge caused my parole to be suspended, suspended as opposed to cancelled, as the prosecution said.

GLEESON CJ:   Your parole in relation to an earlier offence?

MR CLARE:   That is right.

GLEESON CJ:   Yes.

MR CLARE:   But a suspension of parole puts you in a state of suspense, nothing happens.  If they had cancelled my parole, I would then have been able to carry on with the sentence and would have got the benefit of remissions.  On suspension, that is it, you are just in a pure state of suspense.  Now, I stayed ‑ ‑ ‑

KIRBY J:   Yes, but that is the consequence, is it not?  That is the consequence of your having breached the terms of your parole by the supervening offence.

MR CLARE:   I stayed on suspension of parole, your Honour, up until 19 February 1999, which is a term of 658 days.  At 19 February I pleaded guilty to a charge in the Supreme Court and was sentenced to three years with a one year non-parole period.  That three‑year sentence was connected to the eight‑year sentence and under the terms of when I was sentenced, section 155 of the Penalties and Sentences Act applied which was for a default sentence to be a concurrent sentence.  It was not ‑ ‑ ‑

KIRBY J:   Now, you are still serving your sentence, is that correct?

MR CLARE:   The eight years, yes.

KIRBY J:   Yes.

MR CLARE:   The default sentencing was not changed until July 1997 when it was brought in as section 156 under the Serious Offenders Amendment Act, though I am saying it was an error made in sentencing that the eight-year sentence should have been concurrent with a three‑year sentence.  I am also saying that ‑ ‑ ‑

GLEESON CJ:   Now, why should it have been concurrent?

MR CLARE:   Because that was the statute at the time, your Honour.  Section 155 of the Penalties and Sentences Act says that default sentences should be concurrent.  Now, the Court may, under 156, have made it cumulative but where the judge decides to do that, he has to specify his reasons why.  You will find those sections in the additional information that I have sent the Court.

GLEESON CJ:   Yes.

MR CLARE:   If your Honours care to look at exhibit No 5 of Christopher Stephen John Nyst, of the additional information that I have sent to the Court.

GLEESON CJ:   Have you got the application book handy to you?

MR CLARE:   Yes I have.

GLEESON CJ:   Have a look at page 89, the last paragraph on page 89.

MR CLARE:   From line 30 downwards?

GLEESON CJ:   Yes.  What is your answer to that?

MR CLARE:   Well, your Honour, it is incorrect.  They say that I appear:

to have been suspended for reasons unrelated to the commission of the subject offence.

I am saying to you that had it not been for this subject offence, my parole would not have been suspended.

KIRBY J:   Now, over the page on page 90, Justice Davies says:

If that is true, that is an error on the part of the Corrective Services authority and that should be corrected.

MR CLARE:   That is right.

KIRBY J:   What is your answer to that?

MR CLARE:   It is an error on behalf of the court because the Corrective Services only go on orders given by the courts.

KIRBY J:   I think that may be right.  Anyway, press on.  Is that the main matter that you are concerned about, the 685 days?

MR CLARE:   Actually, 658, your Honour, that is a ‑ ‑ ‑

KIRBY J:   You give away 30 days or so, 658.

MR CLARE:   Yes.  Well, I would gladly take the 685, but that is the substantial part of my appeal, your Honour.

KIRBY J:   It is two years.  It is a significant period of imprisonment.

MR CLARE:   That is why I say there is a disparity between the co‑offender’s sentence and my own.  I do not object to the respondent saying that eight years is a ‑ ‑ ‑

KIRBY J:   No, I see that you conceded that on page 116 of the application book.  You concede that as between you and the respondent that the primary sentences are within the authorities, but you say that this 658 days is unjust and that Justice Davies was wrong in saying that that could be corrected by Corrective Services.

MR CLARE:   Yes, your Honour.  Really it comes back to the Crown at the sentencing hearing where they led false and misleading information to the sentencing judge.

GLEESON CJ:   Mr Clare, if you read the paragraph on the top of page 90, what Justice Davies is saying is that the period of 658 days should be taken into account in respect of the earlier offence.

MR CLARE:   Well, it was not, your Honour.

GLEESON CJ:   But you are not appealing about that earlier penalty or – we have before us an application that relates to the sentence that was imposed in relation to the offence of procuring, et cetera.

MR CLARE:   Yes.

GLEESON CJ:   What Justice Davies says at the top of page 90, as I read it, has nothing to do with the sentence that was imposed in respect of the offence of procuring, et cetera.  What he is saying is that the period of 658 days would be taken into account in respect of the earlier offence.  He says ‑ ‑ ‑

MR CLARE:   But it was not – it was not, your Honour, because I was in custody for this offence.

GLEESON CJ:   What he is pointing out is that that is a matter for consideration administratively in relation to the way in which the penalty for the other offence was administered by the Department of Corrective Services.  It does not touch upon an argument in relation to the propriety of the sentence that was imposed in respect of this offence of procuring. 

MR CLARE:   With respect, your Honour, the Corrective Services do not want to know anything about that.  They say it is a matter for the courts.

GLEESON CJ:   You use this expression, “a matter for the courts”, but we are dealing with an appeal in relation to the sentence that was imposed in connection with the offence of procuring.

MR CLARE:   That is right.

GLEESON CJ:   What Justice Davies, as I understand him, is saying in this paragraph is that this aspect of the complaint you are making about that 658 days is not a complaint about what Justice Ambrose did when he sentenced you in relation to procuring.  It is a complaint about what the Department of Corrective Services, you say, are doing in relation to the penalty for your earlier offence. 

MR CLARE:   I understand what you are saying, your Honour, but I wish to again, with respect, submit to you that that is not the case.  The earlier offence was part of this eight-year crime spree, if you like.  I was sentenced

at that time for three years with one year non-parole because somebody gave me up to the NCA.  That led directly to this offence of procure.  When I was sentenced for three years with a drug offence, it was not taken into account the time that I had spent in custody because the time I spent in custody was for this offence and not for that one.  So it was never put to the court that sentenced me to three with a one for time served because I had not been in custody for that offence or had not been charged for that offence until March 1998, whereas I had been in custody for this offence since April 1997.

GLEESON CJ:   Yes, go ahead.

MR CLARE:   As regards to being in custody for this offence, if I can refer you to the index again, the affidavit of Solicitor Christopher Stephen John Nyst, that contains the complete correspondence between the Parole Board and my solicitors.  You will see from purviewing through those that the reason that the Corrective Services have kept me in custody and have refused to re-parole me is the fact of these charges and these charges alone.

KIRBY J:   I think you have said that and that is really what your complaint is about, is it not?

MR CLARE:   Yes, your Honour.

KIRBY J:   Yes, I think we understand the issue.  I would like to ask the representative of the prosecutor, Ms Clare, what the response is.

GLEESON CJ:   Just before that, have you anything else you want to say, Mr Clare, in relation to your appeal?

MR CLARE:   Only the fact, your Honour, as to the Crown Prosecutor at the time of sentencing bringing in and introducing precedents for the offence of attempted murder.  I was not tried by the jury for that charge and it was never mentioned ‑ ‑ ‑

GLEESON CJ:   I think we have understood your submissions about that.

MR CLARE:   Fine, thank you, your Honour.

GLEESON CJ:   Thank you.  Ms Clare, we just want to hear what you have to say about this period of 658 days and, in particular, the paragraph on the top of page 90 of the application book.

MS CLARE:   Yes, your Honour, I understand.  The 658 days did, in my submission, relate to an earlier sentence of six years which was imposed in 1993 for drug offending.

GLEESON CJ:   That was a sentence imposed by Justice Derrington, is that right?

MS CLARE:   No, I think the sentence imposed by Justice Derrington was the one in 1999 for three years.

GLEESON CJ:   That is right, yes.

MS CLARE:   But in 1993 he was sentenced to six years’ imprisonment for offences involving heroin beyond the scheduled quantity.  He was then paroled – according to the transcript, he was given parole in respect of that late in 1996.  The subject offence, of course, the attempt to procure the murder, was committed in the month of April 1997, but he was also subsequently convicted for other offences which were earlier in time, that is, drug offences committed in prison during that period of 1993 to 1996, at the end of that period in 1996, and also some offence of dishonesty.  Now, the sentencing court was told that the ‑ ‑ ‑

GLEESON CJ:   Are you talking about Justice Ambrose?

MS CLARE:   Justice Ambrose, yes, in relation to this matter.  Justice Ambrose was told that the suspension of the parole back in April 1997 was for reasons other than the present offence.  That is something that has never been challenged before either Justice Ambrose or the Court of Appeal.  The reasons for the initial suspension of that sentence were never spelt out, as far as I can ascertain, certainly before the trial judge and I have not had access to the submissions before the Court of Appeal.  But the Court of Appeal certainly, as is shown in the application book at page 89, line 40, accepted that the parole was suspended for reasons other than this offence.

Once the parole was suspended, it was liable to be cancelled upon the conviction of the applicant for any offence committed during the course of his parole and, of course, he was convicted of such offences because he was convicted in 1999 of dishonesty offences committed whilst he was on parole for the six-year offence and he was later convicted of the attempt to procure the murder, again, whilst he was on parole.  So that when those convictions were entered in 1999 and again in February 2000, the parole was automatically cancelled by virtue of the provisions of the Corrective Services Act.

KIRBY J:   Now, what did Justice Davies mean by saying that, if true, this was an error that could be taken into account by Corrective Services?  The Corrective Services could only conform to judicial orders.  Now, what did his Honour mean by that?

MS CLARE:   Yes.  My understanding is that it relates to the counting back of that 658 days for the original sentence of six years because by virtue of the Corrective Services Act, once the parole has been cancelled, all time served during the suspension is counted as time served under the original sentence.

GLEESON CJ:   Is it the case that Justice Davies was saying, in effect, “This man has a very complex custodial history, but the particular complaint that he is making about these 658 days, even if it be a valid complaint, is not a complaint that bears upon the sentence that was imposed by Justice Ambrose”?

MS CLARE:   Yes.  Furthermore, it really is a matter that is to do with sentence management and, therefore, it could be the subject of judicial review but not the subject certainly of any appeal in respect of this matter.

GLEESON CJ:   Yes, thank you, Ms Clare.  Is there anything you want to say further, Mr Clare?

MR CLARE:   Only, your Honours, as far as the totality of the sentence goes, I have attempted to have the appeals court examine the totality.  They were not interested and never properly examined it and the prosecutor at that time made a direct comment as opposed to telling me that they never had the time to go back through and examine the totality.  It is not a very difficult thing to do.  Prior to my sentencing ‑ ‑ ‑

KIRBY J:   No, but you yourself do not complain of the eight years in relation to the matter that is before us.  So you have to just concentrate on the matter that is before us and in respect of that, you yourself do not complain about that at page 116.  Then if you look at the totality of the sentence for that offence and of all the other offences for which you have been sentenced, viewing it in that context, it does not seem to be any offence to the principle of totality.

MR CLARE:   Your Honour, if you look at it in the light that prior to this sentence, I was serving an 11-year sentence with a parole of five years.  After this sentence, due to the 658 days, I am doing 19½ years with a parole time in excess of 11 years.  That has increased my parole period by some six years.  Now, had the ‑ ‑ ‑

KIRBY J:   Unfortunately, you have been involved in a lot of offences.  That tends to happen.

MR CLARE:   No, your Honour, I have not.

GLEESON CJ:   Procuring somebody to murder somebody else is usually taken fairly seriously.

MR CLARE:   Well, your Honour, I accept that eight years is not outside of the scope that is for this offence, even though I have not been able to find anybody who has been sentenced to more than six years for this offence and Pandelis was one case that the prosecution brought up.  He was sentenced to six years with parole after 20 months, 2½ years, and he was found with a carload of people on the way to do the job, to murder the person, with a sawn-off rifle, two concrete blocks and ‑ ‑ ‑

KIRBY J:   Yes, but as the Court of Appeal said, there were some aggravating circumstances in your case, that the charge against you related to a Crown witness and that is a pretty serious ‑ ‑ ‑

MR CLARE:   No, well, that is not true.  It was not a Crown witness, your Honour.  It was an informer who later became a Crown witness.

KIRBY J:   Well, informer.  Yes, informers often do.

MR CLARE:   At the time he was not an informer or a Crown witness. 

KIRBY J:   Well, (a) he was a human being; and (b) he was a person who you knew might be dangerous to your liberty.

MR CLARE:   Does that justify an additional two years?

KIRBY J:   I thought you were not complaining about that.  At the last minute you seem to be raising it. 

MR CLARE:   No, I am not trying to duck and weave.  I am saying to you that the comparison between Pandelis’ circumstances and mine are similar, except his criminality was far greater than mine.  But when you look at the totality of the sentencing, you will see there is a stark difference in the times that this cumulative sentence has caused me to serve.  I have complained to your Honours about the fact that I believe it should have been three years concurrent with the eight.  By making this eight years cumulative, his Honour has forced me to serve a further 12 months before I could start the eight-year sentence because the three was the one – I had to serve that until remitted release time. 

The cumulative effect of this sentence has further increased my sentencing time which I am not taking to your Honours today because I do not have the right to do so.  But the Queensland Corrective Services have changed their Act and now, because my term of imprisonment includes more than one sentence, they say I have had trial or home detention

previously, so therefore they have cancelled my remissions on this eight‑year sentence, which was not the case when Justice Ambrose imposed it.  I have now been sentenced to serve a further two years eight months longer than what Justice Ambrose intended because of the change of Act.

GLEESON CJ:   Thank you.

MR CLARE:   Thank you, your Honours.

GLEESON CJ:   In this matter no error has been shown in the reasoning of the Court of Appeal to the Supreme Court of Queensland and the application for special leave to appeal is refused.

AT 12.32 PM THE MATTER WAS CONCLUDED