CMB v Attorney General for New South Wales
[2014] HCATrans 275
[2014] HCATrans 275
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S257 of 2014
B e t w e e n -
CMB
Appellant
and
ATTORNEY GENERAL FOR NEW SOUTH WALES
Respondent
FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 5 DECEMBER 2014, AT 10.00 AM
Copyright in the High Court of Australia
MS C.T. LOUKAS, SC: May it please the Court, I appear with my learned friends, MS G.A. BASHIR, SC and MR B.C. DEAN, for the appellant. (instructed by Legal Aid NSW)
MR J.V. AGIUS, SC: If it please the Court, I appear with my learned friend, MS B.K. BAKER, appearing for the respondent, the Attorney‑General. (instructed by Crown Solicitor (NSW))
MS LOUKAS: Thank you, your Honours. I understand that the outline of oral argument has been distributed; perhaps if I could give your Honours a moment to peruse that document.
FRENCH CJ: Yes, all right, just take a seat for a moment. Yes, thank you, Ms Loukas.
MS LOUKAS: Thank you, your Honours. This appeal turns on the resolution of three issues. The first two issues are related, the first issue being whether the onus lies upon the respondent to a Crown appeal and, secondly, must the Crown satisfy an appellate court that the residual discretion should not be exercised before a sentence is increased on a Crown appeal.
Now, may I take your Honours directly to appeal book 296. The key error that this appeal concerns is to be found at paragraph 110 of appeal book 296; that is, we say, the clearest demonstration of error. The Court of Criminal Appeal made the statement that, in the middle of paragraph 110:
We take the law to be that “the onus lies upon the respondent to establish that that discretion ought to be exercised in his or her favour” . . . The respondent in this case has identified and analysed an impressive [number] of factors pertinently informing the exercise of [this] discretion. The identified matters do not satisfy us, however, that his Honour’s sentencing discretion did not wholly miscarry in a way that mandates correction in this Court ‑
FRENCH CJ: So what is embodied in the concept of onus here? This is not being used, in a sense, of onus as to matters of fact.
MS LOUKAS: Indeed, your Honour. This is a point I come to in relation to point 2 on the outline. I am happy to go to it now, and that is this; what does “onus” mean in the context of discretion, and what does “onus” mean in the context of this discretion?
What it means in this context, in the context of a Crown appeal, is the onus of persuasion in relation to an increase in sentence. Now, when one might speak of a discretion in relation to equity, an onus in relation to a discretion might be considered inappropriate or crude, but in the criminal law context and in the Crown appeal context the onus in relation to the discretion is critical to the exceptional nature of the Crown appeal and in relation to the limiting purpose of the Crown appeal, of which this Court has spoken on a number of occasions, most recently in Green and Quinn and in Bugmy, your Honours. I should give the citations - in relation to Green and Quinn 244 CLR 462 and Bugmy v The Queen 249 CLR 571.
So, your Honours, just in relation to that question from your Honour the Chief Justice, that is the difference in relation to this discretion in relation to the Crown appeal and why there is an onus in relation to the Crown appeal as opposed to perhaps a more equitable concept of discretion.
FRENCH CJ: Well, what do you say is the principle that the Court of Criminal Appeal ought to have applied in approaching the exercise of the residual discretion?
MS LOUKAS: The principle that the Court of Criminal Appeal should have applied was this, that it is the Crown to surmount hurdles before there can be an increase in sentence, both in relation to the location of a House error and in relation to the exercise of the residual discretion. It is for the Crown to surmount those hurdles because ultimately the Crown has the onus of persuasion in an appellate adversarial context in relation to the increase in sentence.
Now, your Honours, why we say this approach in Hernando in relation to the Crown surmounting obstacles must be correct as a statement of principle is because it is consistent with the history of statutory construction of the text of section 5D and in relation to point 2 on our outline, in relation to the construction of section 5D, I invite your Honours to look at section 5D of the Criminal Appeal Act.
Now, section 5D, your Honours, was enacted in its original form in 1924 and Crown appeals under section 5D and like provisions in other States and Territories, have long regarded by this Court as exceptional and that point was made again by this Court in Green and Quinn v The Queen 244 CLR at paragraph 24. The point that was made there is the exceptional character of the Crown appeal informs the exercise of the court’s residual discretion that is embedded in the words “may in its discretion”.
Now, your Honours, I have already dealt with that aspect of why there is an onus in relation to the discretion here because it is a Crown appeal and because it relates to the exceptional nature of the Crown appeal and the limiting purpose of the Crown appeal and that is why the Crown must satisfy the Court that there is a House error and must also satisfy the Court that it is appropriate to intervene and increase penalty.
Now, according to my learned friend’s position, according to the Attorney and the Court of Criminal Appeal, the onus is on the prisoner – on the respondent to a Crown appeal – to persuade the court that sentence should not be increased. That cannot be correct as a matter of principle and it is not correct as a matter of the statutory construction of the text of section 5D because the Crown appeal exercise is not complete merely with the location of a House error, merely with the Crown satisfying the Court that there is House error.
The Crown must show that there ought to be a different outcome. He who asserts must prove not only House error but the need for a different outcome. The idea of a shift to the prisoner – the idea of a shift of onus of persuasion to the prisoner – to the respondent on a Crown appeal – is, in our submission, an artificial construction in relation to the statutory construction of section 5D.
FRENCH CJ: Well, you have a sentence which is manifestly inadequate demonstrated on appeal to the court. What principle does the court then apply - forget the use of the words “onus” for a moment and “burden of persuasion”, what principle does the court apply to determine whether or not, notwithstanding manifest inadequacy, it should not allow the appeal?
MS LOUKAS: Well, your Honour, those principles draw in what has become known as the residual discretion.
FRENCH CJ: I do not want to know what they draw in; I want to know what they are.
MS LOUKAS: Well, the principles are the exceptional nature of the Crown appeal, the limiting nature of the Crown appeal and it also draws in the common law principles in relation to the construction of the statute which draws in aspects of fairness that underlie the process because this is an appeal by the Attorney‑General so it draws in common law principles of equality before the law and it draws in the principles that have been spoken of ‑ and I come to this point at point 3 and 4 of the outline, your Honours, in relation to the statements of the discretionary obstacles and also, importantly, the statement by this Court again in Green v The Queen 244 CLR 462 at paragraphs 24, 26, 35 and 36.
That is where this Court spoke of the limiting purpose framework of the residual discretion and also spoke of what difference section 68A of the Crimes (Appeal and Review) Act had made in relation to the residual discretion and where this Court stated it is not necessary for this Court to review the correct construction. What is drawn in, which we go on to deal with at point 5 of the outline, is the discretionary considerations, the principles. In particular, your Honours ‑ in particular in relation to this matter is in ordinary circumstances on appeal a party is bound by its conduct at first instance.
This is an important principle quite apart from – it is different to and quite apart from double jeopardy that underpins the adversarial system to ensure the due administration of justice and fairness between the parties. This is a critical principle that comes into play on this issue of the residual discretion. It is one of the critical principles in interpretation.
BELL J: In that respect, I think it is at paragraph 37 of your submissions – I may be wrong about that ‑ you touch on the circumstance that you have the Director of Public Prosecutions speaking with one tongue on behalf of the Executive and the Attorney on the other. Now, there is no issue but that the Attorney has the right to bring an appeal, but you say informing the question of the residual discretion is consideration of not merely the fact that the Crown at the sentence hearing had not been particularly helpful in terms of the submissions that were made respecting the effect of the regulation.
The fact of the matter is that at all times the prosecutor in the form of the Director of Public Prosecutions has adopted a stance, including that there was, in the peculiar circumstances of this case, no error in the approach adopted by the sentencing judge. Then you have the Attorney bringing an appeal contending the contrary. Some of the criticism made by the Attorney in the conduct of the appeal is the trial judge’s failure to properly assess the objective seriousness of the offence but, of course, the trial judge’s reasons for sentence were responsive to the way the matter was argued before him.
MS LOUKAS: Indeed, your Honour, indeed. That is why the principles that I described in Malvaso v The Queen 168 CLR 227 and in Everett 181 CLR 295 about the conduct of the Crown at first instance reflect this broader principle about the adversarial system and the special role of the Crown in the criminal justice system.
FRENCH CJ: If one were to look for a statement of principle by reference to factors which might inform the exercise of the discretion whether or not to allow an appeal where erroneous leniency is demonstrated at first instance, one might begin by saying, putting aside questions of onus which have always a factual connotation, that the Court will interfere, or only interfere on a Crown appeal if it is appropriate having regard to, firstly, the utility of allowing the appeal and giving guidance to sentencing courts below. The question is, is this a unique and one‑off set of circumstances that would not result in such guidance?
Secondly, the effect on the position of the prisoner who either has been released or is undergoing some sort of rehabilitation program simply as a relevant factor; thirdly, perhaps, the conduct of the prosecution below; and fourthly, there may be a question whether to let the sentence stand with the level of erroneous leniency that is demonstrated would be, to use a phrase that has been used in some circumstances I think – maybe in a parity context – an affront to justice.
MS LOUKAS: Indeed, your Honour, and there those matters in relation to the residual discretion, the principles to be applied ‑ ‑ ‑
FRENCH CJ: That becomes very much an evaluative decision informing – by reference to a constellation of factors after you have got to the point of identifying error.
MS LOUKAS: Indeed, your Honour, there is an evaluative exercise there, but that brings me to in fact point 6 and 7 of the outline, and that is that the residual discretion continues to recognise in a real and practical way the Crown’s responsibility for the proper administration of the criminal justice system, and that is the case of JW 77 NSWLR at 25. Now, the issue there is, if it just becomes merely an evaluative exercise with no onus in relation to the discretion, then how precisely can these factors be evaluated? What has occurred here is that the onus in relation to the discretion was placed on the respondent ‑ ‑ ‑
FRENCH CJ: It all depends how you frame the principle, I suppose. If you say the approach to the exercise of the discretion is, having established erroneous leniency, we will not allow the appeal unless satisfied it is appropriate to do so having regard to the sorts of factors which I have mentioned. I mean, that would be one way of approaching it. It is not expressed in terms of onus.
MS LOUKAS: Indeed, but the point that your Honour makes that it does not have to be described as “onus” but rather the Crown overcoming hurdles to the satisfaction of the court does not have to be expressed as an onus but it is the Crown that must overcome the necessary hurdles, your Honour, and we say this in particular in relation to points 6 and 7 of the outline in relation to what occurred here and that is that the reversal of the onus resulted in a failure by the Court of Criminal Appeal to consider the Crown change of position and to consider the Attorney‑General’s conduct which had to be considered in this case.
This opaque formula that was adopted, onus upon the respondent at paragraph 110 of the judgment at appeal book 2, this reliance on the onus on the respondent to a Crown appeal allowed the Court of Criminal Appeal to avoid the issue of the conduct of the Attorney‑General. This case required the Court of Criminal Appeal to come to grips with the conduct of the Crown – the change of position on the part of the Attorney‑General.
KEANE J: When you speak of change of position on the part of the Crown, I understand what you say but you are sliding into saying the conduct of the Attorney‑General. This case might be said to be by Mr Agius – it might be said to be a case where the Attorney‑General’s right to appeal is exercisable precisely because of the Attorney‑General’s dissatisfaction with the way the case was conducted below by another functionary of the Crown.
So he might say that it would be to devalue the Attorney‑General’s right of appeal to saddle the Attorney‑General with the conduct of the case below by another agency of the Crown. It is not really so much a matter of punishing the particular agency of the Crown, particularly not the Attorney‑General or limiting the value of the Attorney’s right of appeal so far as considerations of fairness are concerned, is it?
Is it not more considerations of finality that if the agency representing the Crown below takes a particular stance and the case is determined in accordance with that stance, is not the relevant consideration one of finality in the administration of justice? As the Court keeps saying, trials and sentences are not dress rehearsals. Your client was sentenced on a particular footing which at sentence the court was actually urged to adopt so that the relevant discretionary consideration is finality.
MS LOUKAS: Finality is, of course, one of the considerations to be taken into account in residual discretion. That is absolutely clear. There is no question of that. But, here, there is also this other question because in this respect the Crown is indivisible.
KEANE J: If that is right, then why does the Attorney have a right of appeal separate from that of the DPP?
MS LOUKAS: To make this point that we make in relation to the conduct of the Attorney‑General is not to deny that the Attorney‑General or the DPP may appeal, but it is to make a point that on the residual discretion what occurs in relation to the change of position must be examined by the Court of Criminal Appeal in accordance with the statements that had been made in JW on the Court of Criminal Appeal’s responsibility to ensure the Crown in the criminal justice system behaves in appropriate fashion. I take your Honours directly then to what was stated in JW ‑ ‑ ‑
KIEFEL J: This is coming closer to actually identifying, perhaps, a general principle which applies in relation to the Crown and extrapolating from it for the circumstances of this case. The Chief Justice was asking some questions before about trying to identify the principle which is proper to apply here. Instead of trying to identify a whole body of general principles which might be said to be associated with the exercise of the residual discretion, it might be more useful to focus upon what actually occurred here and the dualistic position of the Crown and its role in the administration of justice, as JW points out, and then to try to identify what it is that is really said to guide the exercise of the residual discretion in this particular case. That is how general principles are generally developed from particular circumstances.
MS LOUKAS: Indeed, your Honour.
KIEFEL J: Perhaps that is where the focus should really be.
MS LOUKAS: The application in this case of the residual discretion called for an examination of the conduct of the Attorney‑General in taking the exceptional course of (a) asking the Director of Public Prosecutions to look at appealing the good behaviour bond, at appeal book 162; (b) awaiting the Director of Public Prosecutions’ decision to decline to direct an appeal, appeal book 156; instituting an appeal concerning a case that had been prosecuted by the Director of Public Prosecutions below; (d) reversing the position taken by the Director of Public Prosecutions below and at the point of appeal; (e) advocating for an outcome that was the reverse of that put below by the Director of Public Prosecutions, and (f), most importantly, advocating for an outcome that the respondent should be gaoled for compliance with the government’s diversionary program.
KIEFEL J: But why do you say that the Attorney is not able to raise these questions effectively about the conduct of the prosecution itself? What is the principle? I do not think referring to what is in effect a constitutional principle of indivisibility is going to resolve this at a very practical level. This is a question of the administration of justice, and the Attorney’s place in it.
MS LOUKAS: Indeed.
KIEFEL J: Is it because even though the Attorney is given a right of appeal, the Attorney is limited in some practical way, perhaps for the reason of finality that Justice Keane refers to, by what the prosecution does? How do you develop that?
MS LOUKAS: Yes, I understand, your Honour. I need to make two points in relation to this. Firstly, there is no denial that the Attorney‑General has the right, and that is quite clear from section 5D. The Attorney‑General or the DPP has the right to launch an appeal. But, it is in considering the residual discretion and in considering those matters I have outlined from (a) to (f) in the conduct of the Attorney‑General, that we must then go on to apply the principles as outlined in JW, and I take your Honours specifically to what is said in JW 77 NSWLR 7 and, in particular, to these principles that have to be applied to the facts of this matter. Firstly, at paragraph 92 ‑ ‑ ‑
FRENCH CJ: Page?
MS LOUKAS: That is at page 24:
Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene at all. Such matters are not, in my opinion, limited to considerations of double jeopardy. The responsibility of the prosecutorial authorities for the fair, just and proper administration of the criminal justice system is such that many forms of inappropriate or unfair conduct can be taken into account in the exercise of the power and discretion vested in a Court.
In this regard, I would include such matters as the contribution the Crown made to sentencing error by the sentencing judge and an attempt –
because both are important, not just the contribution of the Crown before the primary judge but ‑
to conduct an appeal on a different basis to that advanced below.
That brings in this question of finality that your Honour Justice Keane spoke of and your Honour Justice Kiefel. It is both those aspects of the behaviour of the Crown that are important principles to be considered in the exercise of the residual discretion. Going on to paragraph 95, and particularly in relation to:
Accordingly, s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown’s responsibility for the proper administration of the criminal justice system.
Now, coming back to this, if one looks at ‑ ‑ ‑
KIEFEL J: The oddity here, in a way, which I suppose is thrown up by your reference to onus, is that in a sense the Attorney’s appeal seeks to rely upon the inappropriateness of the prosecutions and the erroneous nature of the prosecution’s conduct. It may be that it is not really a question of onus but rather that that approach turns the approach to the exercise of the residual discretion on its head, in the sense that the exercise of the erroneous remarks and guidance given to the trial judge by the prosecution simply points against the exercise of discretion without more.
You do not have to consider whether the Attorney can rely upon wrong conduct of the Crown itself and get into that kind of debate about whether it is appropriate for the Attorney, given the Attorney’s role to do that, but rather simply just focus upon what the Crown did qua prosecution below and say that points against the exercise of the discretion.
MS LOUKAS: Indeed.
KIEFEL J: That might be a simpler approach.
BELL J: So here, coming back to your first ground, you say in paragraph 110 on appeal book page 296 the error is the Court of Criminal Appeal’s statement:
We take the law to be that “the onus lies upon the respondent to establish that that discretion ought to be exercised –
That error does not require you to contend for an onus on the appellant in a prosecution appeal. It is sufficient to say that statement on your contention portrays error. Then if one goes up to paragraph 107, the court in its consideration of the conduct of the prosecution as a relevant factor bearing on the discretion, notes that the conduct of the Crown’s representative at trial was not either “inappropriate or unfair”. It then goes on to say:
The Crown’s errors were not the subject of complaint by the respondent’s representative at the time. His latter day dissatisfaction with what occurred is as much the result of his representative’s arguably opportunistic, if understandable, failure to correct the error as it is the result of the error itself.
As I read that, I think the court is suggesting that the opportunistic error was the legal representative of the accused at the sentence hearing supporting a non‑custodial option in circumstances where the Director of Public Prosecutions supported that option in light of the unusual history.
MS LOUKAS: Precisely, your Honour, and that is yet another misapplication of principle there because, even though they purport to deal with the Crown at first instance, they lay the blame on the defence representative, again misapplying principle in relation to the Crown at first instance before the primary judge. It is interesting, going to those paragraphs under the heading “The residual discretion to dismiss Crown appeals - conclusions” in particular, and that is that at paragraphs 103 and 104, anxiety and distress are dealt with. This is at appeal book 294 and 295.
So at paragraphs 103 and 104, actual anxiety and distress are dealt with. At paragraph 105 the issue of imprisonment for the first time as opposed to the offender being a returning prisoner is dealt with. At paragraphs 106 and 107, as your Honour points out, this issue of the Crown at first instance is dealt with, but the principle becomes somewhat tortured at that point.
Then at 108 the point is made in relation to dismantling of the Cedar Cottage Program and, rather than that being taken into account as a matter that would reflect upon the residual discretion in the sense of the unique set of circumstances that would result in injustice to the individual, it is not used in that way with correct application of principle, but rather we go through then to 109 where the test is apparently in relation to residual discretion that the respondent must “outweigh the patent seriousness of his offending”, and then 110, this question of onus and mandating a particular result.
Throughout that entire discussion there is nothing about the Attorney‑General. That is the problem with the way that the residual discretion was dealt with. The correct aspects of principle, particularly in relation to that point that is made in JW, were simply not applied.
GAGELER J: What about the discussion – I do not really know how this relates to the part of the judgment that you have just taken us to, but at pages 275 and 277 there is what is called a “discussion” about residual discretion where these factors appear to be pretty well canvassed.
MS LOUKAS: Yes. I think at this point, your Honour, it is appropriate that I go through the structure of the judgment with the Court and it is this, in particular this aspect. Now from appeal book 258 to appeal book 264 the court deals with what is called “background”. From appeal book 264 to 268 the court deals with the legislative scheme. From appeal book 268 to 275 the court deals with the appellant Attorney‑General’s – Attorney’s submissions. Appeal book 275 to 277 that residual discretion discussion is again the appellant’s submissions.
So from 268 to 277 is the appellant’s submissions, so it is a recitation – sorry, the Attorney’s submissions, so it is a recitation of the Attorney’s submissions and then there is a recitation of the respondent’s position from appeal book 277 to 283 and, in particular, dealing with a point that was made by the respondent in relation to that paragraph of JW dealt with at paragraph 75 of the judgment at appeal book 281.
So, appeal book 277 to 283 is the respondent’s position then appeal book 283 to 287 is consideration and there is a very curious paragraph there at appeal book 287, paragraph 89, that in terms of consideration of the grounds appears to draw the resentencing discretion into a discussion of manifest inadequacy and also the material on sentence tendered by the Crown brought into 89 and the discussion of House error and manifest inadequacy on resentence.
So then from appeal book 287 to 293 is the proper sentence, and that is the resentencing discretion, and only after the resentencing discretion is there a discussion about the residual discretion to dismiss and, in that context, there is an outweighing that must happen by the respondent of the objective seriousness of the offending which is not the correct test in relation to residual discretion. So that discussion that your Honour Justice Gageler points out is a recitation of the submissions of the Attorney and not an application of principle in terms of the structure of the judgment.
Your Honours, going back to – I think I was at points 6 and 7 of the outline discussing the importance of recognising in a real and practical way the court’s responsibility for the proper administration of the criminal justice system, picking up on JW at 77 NSWLR 7 at page 25, paragraph 95, the reversal of the onus resulted in a failure by the Court of Criminal Appeal to address the Crown change of position, and as I was saying before I dealt with a number of questions, this was an opaque formula.
This reliance on the onus on the respondent allowed the Court of Criminal Appeal to not deal with this issue and it did not under that heading of residual discretion. This case and its particular unique circumstances, the application of those principles from JW, required the Court of Criminal Appeal to come to grips with the conduct of the Crown in relation to the unique set of circumstances here. The Court’s reasoning on that issue had to be exposed and there was no exposure of reasoning in relation to that issue.
BELL J: Ms Loukas, there was no appeal again the disposition of the first set of charges as I understand it.
MS LOUKAS: That is correct.
BELL J: In consequence of the order of the Court of Criminal Appeal, the appellant is now in custody.
MS LOUKAS: That is correct, your Honour.
BELL J: He will not be able to complete the Cedar House program. What happens then to the original charges since of necessity he will not be able to complete the program?
MS LOUKAS: Those matters are now because of – let me take a beat here. I think it is important to make this point, that there was something of a catch‑22 here because compliance with the program took him out of the program because of the Attorney‑General’s appeal and, in those circumstances, what has occurred is he is now in gaol, he cannot complete the program, he was 16 months through the 24 month program. That matter is now back in the District Court awaiting the result of the High Court special leave application ‑ awaiting the result from the High Court – I withdraw that.
BELL J: So was a further consideration in this particular and unusual case that allowing the Attorney’s appeal would of necessity mean failure to complete a program which, on the evidence, he was undertaking satisfactorily? The consequence of that inability to complete the program would mean he would then be required to be sentenced according to law for the original tranche of offences, notwithstanding satisfactory completion for 16 months of the Cedar House program.
MS LOUKAS: Quite so, your Honour.
BELL J: Yes, all right.
MS LOUKAS: And they were ‑ ‑ ‑
FRENCH CJ: Were convictions ever entered in relation to the original set of offences? There was an erroneous failure to enter a conviction, was there not?
MS LOUKAS: Yes, but a conviction in that regard can be entered at any time.
FRENCH CJ: I appreciate that, but there has not been a conviction entered yet in relation to any of those?
MS LOUKAS: No, that is right. In answer to what your Honour Justice Bell was saying, that is a critical aspect of this case, that the Attorney‑General was advocating for an outcome that led to the respondent being gaoled for compliance with the government’s diversionary program. Your Honours, I apprehend that I have come quite some way through the outline at this point ‑ ‑ ‑
FRENCH CJ: If one were to try to identify what would have been a correct approach on your argument by the Court of Criminal Appeal to the exercise of the discretion to allow the appeal and resentence, is it too restrictive of the discretion conferred in section 5D to characterise it as requiring one or other of these approaches – and I am not suggesting that either is right and it may be that neither is – that the appeal should be allowed unless the interests of justice in the correction of an erroneously lenient sentence are outweighed by other considerations, including et cetera, et cetera. So that requires them to be satisfied, if you like, that other factors outweigh the interests of justice in correcting the erroneous sentence, or if, and only if, the interests of justice are – in other words, it will be allowed only if the interests of justice are outweighed by those other things, or is the discretion not confined by one or other of those kinds of approaches?
MS LOUKAS: We would submit that the content of the principle includes has the Crown satisfied the court that the purpose of the Crown appeal cannot be achieved by a statement that the sentences were wrong and why it was wrong as, for example, in Borkowski, a decision that this Court quoted in Green and Quinn v The Queen 244 CLR 462 ‑ ‑ ‑
FRENCH CJ: That is on the basis that guidance to courts below is sometimes adequately affected by a statement that there was an error.
MS LOUKAS: Precisely, your Honour, yes, and would the circumstances, including those since the sentence, tend to produce injustice. That, for example, takes up Justice Bell’s point in relation to the progress through the program, and that the result would come at too high a cost in terms of injustice to the individual; that again is Green at paragraph 43.
KIEFEL J: If the conduct of the prosecution below functions as a negative factor, that is, it points against the exercise of discretion, there is, nevertheless, the question about whether or not the sentence, the Court of Criminal Appeal’s view that a non‑custodial sentence was just not available in the circumstances. The question then becomes a rather focused one, does it not, about whether or not the Attorney‑General can elevate the error in relation to the sentence and whether or not the discretion should be exercised in relation to it to some question of principle rather than just being a correction in this particular case. That is to say, whether or not it can be elevated to a point of requiring general guidance; that is the kind of area that you get into then, is it not?
MS LOUKAS: That is true, your Honour, yes.
KIEFEL J: Why do you say the Attorney cannot elevate the question about whether or not there should have been a – whether or not the circumstances of the offending and the length of the history of the offending cried out for a custodial sentence?
MS LOUKAS: The problem with that, your Honour, is something that we deal with under issue 3 and that is the application of section 23 and unreasonably disproportionate and the question of ‑ ‑ ‑
KIEFEL J: If you are coming to it, I will not take you out of your sequence.
MS LOUKAS: Thank you, your Honour. But before I do come to that question I should deal with point 9 of the outline, and that is the idea that the approach adopted in Loveridge [2014] NSWCCA 120 at paragraph 249 rather than there being an onus of persuasion on the Crown, that there might be, as it were, a pure discretion that emerges after the finding of House error. But the problem with that approach, we would say, is that it does not recognise the statutory purpose of section 5D and that it is an appeal by the Attorney‑General, and nor does it address the infringement on common law principles, rights and freedoms entailed in the construction that would allow for a discretion, for pure discretion, without the need for the Crown to satisfy the Court.
We submit that the construction of section 5D, the body of developed principles surrounding how it is to be exercised, and the fundamental difference from appeals by convicted persons, all provide powerful reasons why the approach in Hernando should be followed, that is, the Crown satisfying the Court as opposed to the emergence of a pure discretion once House error has been identified. That is why we say the approach adopted in Loveridge is not the answer as though a pure equitable examination of discretion could emerge in the midst of construing a penal statute.
We say that for the Court of Criminal Appeal to perform its function on residual discretion of recognising in a real and practical way the Crown’s responsibility for the proper administration of the criminal justice system, that the onus of persuasion in relation to this question must be on the Crown, rather than it being a question of pure discretion without the need for the Crown to overcome a hurdle.
The other aspect is this, from a practical point of view, your Honours, and this goes to point 10 in the outline and it goes to paragraph 27 of our submissions. Questions such as delay on the part of the Crown, submissions made by the Crown below, rehabilitation whilst in custody, questions of imminence of release ‑ for example, if there were an unrepresented respondent to a Crown appeal, or even a represented respondent on a Crown appeal, for an onus to be placed on the respondent, were it merely to be a question of pure discretion as opposed to the Crown having to justify delay, the submissions that were made below, the change of position, those are matters we say that the Crown should satisfy the court of ‑ why nevertheless there should be an increase in sentence, to follow through in relation to that point, about why, we submit, that the position in Hernando is correct rather than the position in Loveridge.
Now, may I take your Honours to issue 3 and to the question that was asked by Justice Kiefel, and the question is this? In the context of the result before the primary judge in relation to this matter, we say there has been a misapplication of principle in relation to what is unreasonably disproportionate and, quite clearly, unreasonably disproportionate does not mean proportionate, it cannot mean proportionate.
I take your Honours directly to the case of R v C 75 A Crim R 309 at page 315, and the point that is made there in relation to section 23, that the provision did not prescribe sentences which were disproportionate, it prescribed only those which were unreasonably disproportionate, that it was clearly intended that in determining what was unreasonable for this purpose, the court should be able to take into account the assistance given to law enforcement authorities, and taking that into account to reduce the sentence below what otherwise would be required by the nature and circumstances of the offence.
The use of the term “unreasonably” for such a purpose involves at least two things: that the sentence following reduction for the assistance will be disproportionate, that is accepted, it will be disproportionate to the offence but not unreasonably so, and that in deciding what is unreasonable for this purpose the court may take into account the nature and extent of the assistance given.
Now, in the circumstances of this case, the nature and extent of the assistance given pertains to the circumstances of disclosure on the program and it pertains to the policy considerations that underline section 23, which the Court of Criminal Appeal did not advert to - the policy considerations that underline section 23.
The basic point about this in terms of the policy considerations is that – and this is dealt with in our submissions of course – but the reporting of sexual abuse is notoriously rare and that the criminal justice system as a policy consideration wants to encourage people coming forward – offenders coming forward, disclosing their behaviour and pleading guilty and particularly in offences of this nature, to hang their head in shame, as opposed to waiting for victims to come forward and then – and this is a policy consideration the primary judge recognised – victims going into the witness box, being called a liar and the avowedly – again a matter dealt with by the primary judge – low rate of conviction in relation to these matters. So as a very important matter of policy, our legal system wants to encourage offenders to come forward and make voluntary disclosures.
Now, in terms of the meaning behind “unreasonably disproportionate” and the policy considerations behind “unreasonably disproportionate”, the Court of Criminal Appeal erred in its application of section 23 and I take your Honours firstly – and this is at point 14 of the outline - rather than dealing with this question of not unreasonably disproportionate and applying unreasonably disproportionate, what the Court of Criminal Appeal had to say at 109 was that:
We are not satisfied that the respondent’s apparent progress within the Program so far, and his accepted rehabilitative achievements, are sufficient to outweigh the patent seriousness of his offending and the corresponding propriety of imposing a sentence upon him that reflects it.
Now, that is not applying the principle of not unreasonably disproportionate. That speaks of proportionate. Then if I may take the Court to paragraph 99 of the Court of Criminal Appeal’s judgment and that is at appeal book 292 – and this is in resentence, again, not applying the “not unreasonably disproportionate” principle – and this is in the middle of the paragraph, at about 45:
The nature of the offences under consideration commands the imposition of sentences that recognise and give effect to the requirements of punishment, denunciation and retribution, as well as specific and general deterrence. The importance and relevance of these factors are not in our view offset in this case by the respondent’s particularly awkward current uncertain status or the subjective considerations –
That is not applying “not unreasonably disproportionate”. That, again, is applying “proportionate”. If we go, your Honours, to ‑ ‑ ‑
FRENCH CJ: Why should not one regard, for example, what is said in 109 as simply a consideration of a factor which might be taken into account against resentencing and saying that it is not outweighed by the patent seriousness of the offending? Putting aside the question of the formula which refers to onus, is that not just the sort of weighing exercise – evaluative weighing exercise that a court should undertake on a Crown appeal?
MS LOUKAS: That may be the case, your Honour, except for this – but if I take your Honours to paragraphs 87 and 88 of the judgment and that is at appeal book 285, 286 and 287 where the Court of Criminal Appeal is dealing with the issues of objective seriousness and manifest inadequacy the court does not deal with section 23 principles at all. The Court of Criminal Appeal did not apply the principles in relation – what has come to be known as the Ellis principles – in considering the issue of manifest inadequacy from 87 through to 88. That is the consideration of manifest inadequacy. Then, we have that paragraph 89 that then draws in resentencing and there is some confusion of principles being applied in 89. So in the specific, discrete determination of manifest inadequacy at 87 and 88, there is no consideration of the Ellis principles whatsoever.
BELL J: Then, when one comes to paragraph 93 where you see the court in the second sentence speaks of “the significant added element of leniency” to which the respondent was entitled but that element:
must not lead to a sentence that is unreasonably disproportionate –
Now, you accept there, there is a correct statement of the principle but when one reads on the court considers that -
There was a considerable element of self‑interest in the respondent’s admissions, which were not in those circumstances unambiguously altruistic or purely cathartic. The additional offences were not in that sense unconditionally volunteered.
It is not quite clear what approach the court is taking there. It is, I think, uncontroversial that the appellant came forward as part of the Cedar House program to disclose offences that the child had simply forgotten in the context of the long history of abuse to which he had been subject. So in terms of what is sometimes referred to as an Ellis discount, the preconditions for the grant of that discount were established.
MS LOUKAS: Indeed, your Honour. The problem with the end of paragraph 93 is that it was not open for the Court of Criminal Appeal to substitute their own factual findings on this question – in the determination of manifest inadequacy, which they have drawn in via paragraph 89.
BELL J: Yes.
MS LOUKAS: Your Honours, that brings me to the reasoning on ground 1A - that is point 17 in the outline. In the reasoning on ground 1A, the Court of Criminal Appeal stated, and I should take your Honours to the appeal book in relation to that question under consideration - that is at appeal book 283 at paragraphs 82, 83 and 84. This was the ground relating to how the disclosures were dealt with.
What the Court of Criminal Appeal did there was that they stated that the sentencing judge was in error in ameliorating perceived unfairness and referred to the patent unavailability of his Honour’s approach, and that this underpinned and characterised the whole sentencing process. This assessment was based on the court’s erroneous application of section 23 because again, they are speaking of, we submit, proportionate rather than dealing with unreasonably disproportionate, and how the primary judge dealt with the question of these disclosures which cried out to be dealt with as a question of substance, not a question of what the regulation may or may not state, but whether or not the regulation existed and what that led to in relation to dealing with voluntary disclosures.
Now, your Honours, it is from that analysis of the judgment, going through those various paragraphs in consideration – 83 and 84, 87, 88, 89 and through the 90s and resentencing – it is from that analysis of the judgment that we say it quite clearly emerges that the correct principles on this question of section 23 were not applied by the Court of Criminal Appeal and, while they did recite the correct principle when repeating the submissions of the Attorney, the principles were not applied. So, your Honours, that brings me to point 19 on our outline and we submit that this Court would uphold this appeal.
BELL J: Could I just ask the practical consequences of that?
MS LOUKAS: Indeed.
BELL J: The appeal to the Court of Criminal Appeal would be dismissed, your client would be released, but he would not have completed the Cedar House program.
MS LOUKAS: Yes, indeed. Yes, your Honour. Now, the situation in relation to that is this, and this requires some discussion of both sets of the fences. The first set, that subject of the undertaking to complete Cedar Cottage, were of course technically breached when the respondent before the CCA, the appellant before the High Court, was incarcerated after completing the vast majority of the program and that breach of undertaking is currently in the District Court adjourned awaiting the outcome of the High Court.
The second set, which is the matters before the Court, are now the subject of what we are dealing here today. If this Court exercises its residual discretion rather than remitting, then the appellant in this matter would be released from custody as no gaol sentence or bail is required. But the Director of Public Prosecutions would have to call up the bond, the recognizance, as he is technically in breach of the bond because of failure to comply with the Cedar Cottage Program.
BELL J: Exactly.
MS LOUKAS: So what would need to occur from a practical basis is that the breach of bond proceedings arising from this second set would have to join the breach of undertaking proceedings in the District Court and be returned to the primary judge to be dealt with together.
FRENCH CJ: No diversion program available?
MS LOUKAS: Well, this is a further matter that I should bring to the Court’s attention. A designated senior clinician has been appointed to be responsible for any matters arising from the Cedar Cottage program on an indefinite basis. So there is a commitment to completing the therapeutic needs of anyone who is referred to the program before its termination, so there can be a return to the program in that sense. So the clinician would be able to ‑ ‑ ‑
FRENCH CJ: This is some administrative arrangement. It is not done pursuant to any statute?
MS LOUKAS: That is correct. Well, the statute still exists. The statute still exists. The statute is still in force. It has not been repealed. It is merely the regulations that were allowed to lapse. So the statute has not been repealed and is still in force.
KIEFEL J: Is there any material before us in relation to what you have just said?
MS LOUKAS: No, there is not, your Honour. What you have before you is, of course, the record before the Court of Criminal Appeal but my instructing solicitor has made these inquiries of the people who now run a program to deal with the implications of the lapse of the regulation and the fact that there were people still on the program. It is not just people in the position ‑ ‑ ‑
KIEFEL J: But this is a government initiative to complete.
MS LOUKAS: Precisely, it is a government initiative, indeed. So, from a practical pragmatic point of view, this clinician would prepare a full report on the appellant’s participation in the program and options now that the program has been terminated and the program basically consists of counselling, guiding participants through the accepting and responsibility of addressing the offending would basically be an option for an individualised regime in light of the fact that the program as a full program does not exist
but there has to be administrative arrangements put in place to deal with the people caught by the lapse of the regulation.
BELL J: My recollection is that the Act is inflexible respecting some time limits. It may be that the Act has ceased to apply to your client in circumstances where he has, as a matter of fact, not complied with the undertaking so that – I mean, in any event, Ms Loukas, you say the upshot would be that he would – that both matters would have to go back to the District Court where effectively he would be sentenced.
MS LOUKAS: Indeed. So, your Honours, as I indicated, the orders are as sought in paragraph 55 of our submissions. May it please the Court.
FRENCH CJ: Thank you. Yes, Mr Agius.
MR AGIUS: I expect that your Honours have our outline of submissions?
FRENCH CJ: Thank you.
MR AGIUS: Your Honours, we have three points to make in this appeal. Our first submission is that the question of whether to exercise a residual discretion when properly understood is not governed by any concept of onus.
BELL J: Does that submission concede an error at paragraph 110?
MR AGIUS: If it is accepted, it concedes an error. If we are wrong about it then our second submission is that if an onus does apply then the Court of Criminal Appeal was correct to apply the onus to the offender. But our third submission is the one that, in our respectful submission, goes to the heart of the appeal and that is that whatever statement was made about onus by the Court of Criminal Appeal it did not affect any orders made by the Court of Criminal Appeal that it was not material.
Our submission in relation to the statement at 110 is that it is a statement about a result. It is the way in which the Court summed up what the result was. In other words, we have not been satisfied by you but the important thing was that on the whole of the material looked at in an appropriate way the Court of Criminal Appeal concluded that it would not exercise the discretion not to interfere.
Nowhere in the judgment is there any discussion of onus. Nowhere in the judgment is there any suggestion that there was any question of onus making any difference. The Court of Criminal Appeal looked at the matters relevant to the exercise of the discretion and dealt with them on their merits in the course of the judgment and formed an opinion in relation to them. Taken together, they were not of such a quality as to activate the court to use its discretion not to interfere. The principal reason for that was because of the manifest inadequacy of the sentence that had been imposed in respect of the very serious criminal conduct.
The court formed the view, and in our respectful submission, correctly formed the view that so great was the conduct and the criminality concerned that none of the matters which the Crown had conceded before the Court of Criminal Appeal were available for consideration could lead to a favourable exercise of the discretion. It is our respectful submission that it is important to bear steadily in mind through the whole of this appeal two matters: one, the severe nature of the criminal conduct concerned over a long period of time on the offender’s daughter in circumstances where the daughter was about 11 or 12 years of age, in circumstances where the offending was continuing, in circumstances where the offending carried maximum sentences of ‑ ‑ ‑
BELL J: Twenty years in the case of the 61J offences.
MR AGIUS: Twenty years, yes.
BELL J: Can I just take something up with you in relation to the submission about the length of the offending and the child’s age. There was no appeal against the disposition in relation to the first tranche of offences ‑ ‑ ‑
MR AGIUS: There could not be, because that was done, in effect, outside of the curial process.
BELL J: As a decision of the Director of Public Prosecutions ‑ ‑ ‑
MR AGIUS: No.
BELL J: Well, in the sense that but for the Director’s assent to that course being taken, it could not have been.
MR AGIUS: Yes.
BELL J: With the Director’s assent, the offences, which we see some brief particulars of at appeal book 42 and 43, were dealt with by way of a diversionary program. When one looks at the brief particulars of some of those offences, all of which occurred over a period of time that corresponds with the period of time of the offences that were the subject of the second tranche, it is just a question of trying to understand quite what is the particular significance you place on the circumstance that these were continuing offences against a young child. That would seem to be very plain indeed. I think in relation to the schedule of charges at 42 and 43, one sees that in total he was dealt with, albeit under this unusual diversionary scheme, for 10 offences, but he was in fact charged with 22 offences over this period.
MR AGIUS: Yes, that is right.
BELL J: The Director in the exercise of prosecutorial discretion elected to proceed on 10 representative charges over the period of two years that covers the exact same period as the subsequent nine offences to which he admitted voluntarily, the girl having forgotten them, and then again in an exercise of prosecutorial discretion, those are brought down to five representative charges. It is in that context that the Court of Criminal Appeal had to look at considerations of the sentencing judge’s purported failure to consider objective seriousness and the like.
MR AGIUS: Yes. Now, I can see where this is heading, and I say that with respect. But the difficulty on that analysis is this, that when the court came to deal with the offender the court had to deal with him according to law.
BELL J: Yes.
MR AGIUS: So it was not material that the Director of Public Prosecutions had consented to the first 10 offences being dealt with outside of the curial process. Our appeal before the Court of Criminal Appeal drew attention to what we contended for was unquestionable fact that this man should never have been admitted to the program at all. It was wrong and there were errors of law made for his initial admission to the program.
Now, the Court of Criminal Appeal said that was an irrelevant consideration. We do not ‑ still do not believe it is an irrelevant consideration. It is at least relevant on the question of residual discretion, but it bears upon the analysis that your Honour has just elucidated. He should never have been in this program because he was out of time, because at the time at which the decision should have been made as to whether he could be in the program there was no place available for him. That should have been an end to any consideration of his going into the program.
Erroneously, the DPP consented to an adjournment and then consented to him going into the program, but beyond that there was no consideration given to the fact that the daughter, the victim, did not consent. That is a very significant matter that ought to have been taken into account. So the whole thing was infected by error.
BELL J: But does that raise the issues about the sufficiency of the consideration of the residual discretion in circumstances where, for example, allowing the Attorney’s appeal necessarily meant that the respondent to the Attorney’s appeal would be in breach of the program which he had then been undertaking for 16 months with the necessary consequence that he could not satisfactorily complete it? That is the sort of consideration that surely has to be taken into account.
MR AGIUS: The court referred to that though. They said it was regrettable but they did refer to that and because I think - I submit that the overriding consideration here was the manifest inadequacy. Now, this is not excess of leniency, in our respectful submission, and this Court has drawn a distinction in Munda (2013) 249 CLR 600 which is on our list, I believe. It is be found in particular at paragraph 76 ‑ ‑ ‑
FRENCH CJ: Page?
MR AGIUS: Page 625, where the Court said:
The third discretionary consideration relied upon by the appellant was that no error of principle was corrected by the Court of Appeal. This was not a case of mere leniency reflecting error: the Court of Appeal came to the conclusion that the sentence imposed was manifestly inadequate. That was sufficient to justify intervention given that to decline to intervene would have been to perpetuate a manifest injustice.
That was paragraph 76. Justice McHugh in Everett (1988) 181 CLR 295 at 306 said:
Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
If one takes into account statements of that nature concerning sentences which are not just lenient but which are manifestly inadequate, then that is a very powerful consideration to take into account. In effect, in this case ‑ ‑ ‑
BELL J: But the point that his Honour was making in Everett was that manifest inadequacy in some circumstances can itself amount to an error of principle of the kind that could admit of a Crown appeal as distinct from some error of principle of another character. I think what you have to come to grips with is that this was an unusual circumstance and a deal of the criticism of the sentencing judge in terms of a failure to consider the objective seriousness of the offences is reflective of the approach that the prosecution took.
MR AGIUS: But this was recognised by the Court of Criminal Appeal and ‑ ‑ ‑
BELL J: Recognised insofar as the Court saw that the Director had incorrectly informed his Honour that the regulation made provision, as it were, for the additional disclosures to be dealt with without charge and that was plainly incorrect.
MR AGIUS: But that was the matter that influenced his Honour to proceed by way of recognizance which the Director of Public Prosecutions did not object to. At 106, page 295 – paragraph 106 of the judgment, in dealing with the prejudice to the offender the court said:
The prejudice to the respondent arising in this way has also to be assessed in light of the fact that the Crown representative at the sentencing proceedings was largely, if not predominantly, responsible for the way in which his Honour dealt with the respondent in the first instance.
That was conceded by the Attorney‑General in the appeal. The judgment records the fact that there were two – well, there were many matters conceded but there were at least two significant matters conceded. One was the role of the Crown in the judge falling into error and the other was the delay. But it was also the submission before the court which ultimately found favour that these offences were so serious and the effect of a recognizance in place of a prison sentence of any kind, or even a suspended sentence, was one of manifest inadequacy and just could not be left.
That is a very significant submission but it is in a context where there are no mandatory sentencing provisions in the State and that puts the Crown appeal against inadequate sentences, or manifestly inadequate sentences, in a particular focus.
There was, perhaps, a conflict of interest for the Director of Public Prosecutions given that the Director’s representative had, as the court found, or was largely, if not predominantly, responsible for the way in which the court dealt with the matter. In those circumstances, our submission is that there is no infringement on the principle of finality in these proceedings where the Attorney has an independent right to appeal and, perhaps, in circumstances where it would be appropriate for the Attorney to appeal rather than the Director of Public Prosecutions there is an element of objectivity which is apparent, that is, the perception of objectivity is there if the appeal is by the Attorney‑General.
Subject to consideration of whether or not the residual discretion . . . should be exercised –
That was this confusion of – and a misapplication of – Hernando. It also comes in in respect of failing to have regard to the limiting purpose of Crown appeals; that is, there was a misapplication of principle, and in B, in our submission, the second ground, the court erred in its application of section 23 in failing to apply either at all in the consideration of manifest inadequacy, or if it was drawn in through the resentencing process, it was done in a manner where the facts were recast adversely, and it was done in a manner where none of the policy considerations were taken into account. That brings me to what my friend had to say about the victim not consenting and that the first set of charges should never have been dealt with under the ‑ ‑ ‑
BELL J: Well, I think the Court of Criminal Appeal rejected that ground.
MS BASHIR: Yes, thank you, your Honour. In relation to the Act itself and the policy considerations as to the section 23 voluntary disclosure here – that is, the nature of the assistance under section 23 – included the interests of the child victim in that they were – it was a validation of the offences committed against her, there was a reinforcement within the family unit, so as there was no taking sides, which was a particular concern to the victim which she had raised in her victim impact statement.
In fact, under the program, he could not have contact with her siblings so that she could re‑establish her relationship with them. There was a promotion and facilitation of empathy with the victim, a program wholly focused and tailored to protecting the victim and the community from offending behaviour, and I could go on – but your Honour, these were relevant considerations both in the context of a finding of manifest inadequacy and whether it was manifestly inadequate, but also to the section 23 – whether section 23 was properly taken into account, and whether the words “unreasonably disproportionate”, as applied in C, were properly applied, and we say that was not the case.
That is why when one comes to, for example, appeal book 296 at paragraph 108 in the exercise of the residual discretion, their Honours
saying the issues here arising were “unlikely ever to arise again”, in our submission shows that there was no regard to the policy considerations because disclosures in the course of treatment is certainly likely to arise again, be it in the Cedar Cottage program or otherwise.
Your Honours, just very briefly, in relation to the error under ground 1A, in our submission, section 23 - the failure to properly apply section 23 cut across this ground as well because his Honour the sentencing judge where he spoke about unfairness, the unfairness here was that the disclosures were made because the full participation required it and in fact, contrary to the submissions of my friend that there was no equivalence with it being able to be taken into account under the undertaking, in fact at AB 40 we see that on 7 November, so subsequent to the additional disclosures, he had been found suitable for diversion and at AB 73 we see that he entered into the treatment agreement and commenced the program subsequent to that, and of course he was still on the program and doing very well.
So the reference to the “only fair and just outcome” by the sentencing judge at AB 92 is taking into account the circumstances of the disclosure, that is, the Ellis considerations and we refute the suggestion that it was only because his Honour thought that he would not be charged that he was dealt with in that manner by his Honour. Unless there is anything further.
FRENCH CJ: Thank you, Ms Bashir. The Court will reserve its decision. The Court adjourns until 10.15 on Tuesday, 9 December.
AT 12.33 PM THE MATTER WAS ADJOURNED
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