Cornish v Director of Public Prosecutions (Cth) [2012] HCATrans 202

[2012] HCATrans 202

[2012] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M37 of 2012

B e t w e e n -

BRIAN ROBERT CORNISH

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 2.03 PM

Copyright in the High Court of Australia

MR L.C. CARTER:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by Slades & Parsons Solicitors)

MR C.W. BEALE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Cth))

HAYNE J:   Yes, Mr Carter.

MR CARTER:   Your Honours, the focus of this application concerns ‑ ‑ ‑

HAYNE J:   Just a moment would you.  Yes, sorry, Mr Carter, do go on.

MR CARTER:   Your Honour, the point of principle that this matter is focused on is to be found at page 245 of the application book, paragraph 53:

Ground 6 is that the sentence imposed upon the respondent is manifestly inadequate; but since in our opinion ground 4 is made out, there is no need to consider this ground.  The appeal must be allowed and the respondent must be re‑sentenced.

In our respectful submission, and this is the matter raised by ground 2, that was in error because the Court of Criminal Appeal was bound to determine that the sentence was manifestly inadequate before it could, in the language of now section 289 of the Criminal Procedure Act, determine that a different sentence should be imposed.  There are a number of steps to that, your Honours, and can I just go back a little?  Recent decisions of both this Court and intermediate courts, post the common abolition of double jeopardy, have called attention to the question of to what extent the special features of Crown appeals are attributable to double jeopardy.

Could I just take your Honours to two judgments in relation to that?  First, the decision of this Court in Green v The Queen (2011) 244 CLR 462. It is addressed in the written submissions at tab 4 of the respondent’s authorities in this Court, and the reasons of Chief Justice French, your Honour Justice Crennan and Justice Kiefel at paragraph 1:

The primary purpose of appeals against sentence by the Attorney‑General or Director of Public Prosecutions . . . is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.  That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases . . . 

In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited –

Indeed, at paragraph 4 in Green the basis for this Court’s finding of error was that:

The Court of Criminal Appeal erred in failing to give adequate weight to the purpose of Crown appeals –

in part.  At paragraph 25, Green, of course, being a case post the abolition of double jeopardy, paragraph 25 at page 471 in the plurality reasons, the second sentence:

The characterisation of Crown appeals as “exceptional” has rested in part upon long‑standing judicial concern about exposing sentenced persons to double jeopardy –

What that makes clear is that it is not entirely.  Could I take your Honours second to the decision of the Victorian bench of five in the DPP v Karazisis behind tab 2 of our materials, reported at [2010] 206 ACR 14 and go straight to page 43 where, in the joint reasons of Justices Ashley, Redlich and Weinberg, at the top of the page their Honours in the final sentence refer to the fact that:

The filter has shifted from the Court, to the Director, who must, in accordance with the Act, turn his mind to the considerations which lie at the heart of double jeopardy as part of the requirement that he have regard, when deciding whether to institute an appeal –

refer under the heading at paragraph 24 ‑

“Manifest inadequacy” as a species of error

Under s 289(1)(a), the Director must satisfy this Court that “there is an error in the sentence first imposed”. The error almost always asserted on a Director’s appeal, either as the sole or as the primary ground of appeal, is that the sentence was “manifestly inadequate”.

Then after reference to the decision of this Court in Carroll at 127 the Court re‑emphasises the stringency of the threshold test of “manifest inadequacy”.

HAYNE J:   Well, you describe it as a threshold test.  Manifest inadequacy like manifest excess is the fourth class of House v The King error; that is right, is it not?

MR CARTER:   It is, your Honour.

HAYNE J:   Is it open to the prosecution to bring a prosecution appeal against sentence if, for example, the sentencing judge makes a clear error of law in formulating the sentence?  I do not pause to examine what it is, but assume you can identify specific error by the sentencing judge, does that not found without more a prosecution appeal for the purpose of establishing as a matter of principle that the relevant legal principle is whatever may be the correct view?

MR CARTER:   Your Honour, that goes to the Director’s power, pursuant to section 287 and if the Director had considered that there was both error and (b) that that was in the public interest, then the answer to your Honour’s question is yes.  But the special leave point is once the jurisdiction and power of the Court of Criminal Appeal are engaged could they ever conclude that a different sentence should be imposed without having determined that the sentence was manifestly inadequate?

HAYNE J:   Why not?  If there is an error of law made by the sentencing judge why can they not decide, without regard to considerations of manifest inadequacy, that some different sentence should be passed?

MR CARTER:   Because, in our respectful submission ‑ and that is what has happened in this case, your Honour, and I know that the argument that we cannot find a precedent for it, ultimately the level of principle does not get very far ‑ ‑ ‑

HAYNE J:   In the end we are grappling with the statute, are we not?

MR CARTER:   Indeed, your Honour, but what I wanted to address it in is two ways.  It is quite clear without trawling through the statutes that what has happened through the reforms is that the symmetry between the sentenced person’s appeals and the Director’s appeals provisions, on its face, is maintained, if your Honour follows.

HAYNE J:   Yes.

MR CARTER:   This Court, of course, dealt with in Lacey the meaning of that and it could be said that the Victorian legislature, in effect, achieves the interpretation in Lacey.  We wish to rely upon dicta predating the reforms and postdating the reforms in support of a proposition that a Court of Criminal Appeal would never be satisfied that a different sentence should be imposed, unless they concluded manifest inadequacy.  We seek to advance that point of principle, your Honour, as being connected to the purpose for the bringing of the Crown appeal, as stated by the plurality in Green, as being different to that of a sentenced person.

HAYNE J:   But textually does your argument depend upon, necessarily depend upon, reading the phrase, some other sentence should be passed, I think is the ‑ ‑ ‑

MR CARTER:   A different sentence should be passed.

HAYNE J:   A different sentence should be passed, as somehow building in this notion of manifest inadequacy.

MR CARTER:   It is, your Honour.

HAYNE J:   How do you do that, purely textually?

MR CARTER:   With respect we endeavoured to adopt the approach of the Court in Lacey v Attorney‑General ‑ this is referred to in our reply – 242 CLR 573 at paragraph 44:

The purpose of a statute is not something which exists outside the statute.  It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

We say that applying that approach to this legislation one must examine, with respect, the common law history of it, especially where there has been this debate about to what extent the double jeopardy reforms shear away the special nature.  So may we then, your Honour, in support of the argument take you first to the decision of the Court of Appeal in Victoria in DPP v Bulfin [1998] 4 VR 114? In dicta, Justice Charles first at page 140 in the second paragraph stated midway through the second full paragraph:

In other words, the submission was that, on a Crown appeal, this court ought not to increase a prisoner’s sentence unless the court took the view that the sentence originally imposed was indeed manifestly inadequate.  It is not necessary, having regard to the conclusions I have already stated, to decide this difficult point; and it was in any event not fully argued.  But I should say that the reasoning of Callaway J.A. in Bolton and Barker at 697‑8, with which I agreed, would, in my view, tend strongly to this conclusion.

Justice Callaway at page 141 over the page – I am just dealing with the principle here, your Honour ‑ at point 2 at line 41:

The obligation of the Court of Appeal . . . is to pass such other sentence warranted in law as it thinks ought to have been passed . . . It is difficult to envisage a case where the Court of Appeal would think that a more severe sentence was warranted in law and ought to be passed if the sentence below was within the range.  The public interest does not require it and, for the reason given in proposition 1, fairness to the applicant or respondent makes it inappropriate.

Then his Honour refers to Bolton and Barker.  We have not taken the Court to that, but I note that in Bolton and Barker itself your Honour Justice Hayne agreed with Justice Callaway.  Turning then to matters post ‑ and there is no, with respect, dint to be made to the argument by the legislative reform ‑but in the matter of R v Reynolds [2004] NSWCCA 51 at paragraph 26, Justice Simpson – and I have set out the relevant passage, it is identified in the submissions in‑chief, but it is set out in the reply at 275:

the ultimate question is whether the sentence has been shown to be manifestly inadequate.  That does not exclude the identification of specific error, where it can be shown, that may explain how manifest inadequacy came about.  Identification of specific error alone is not sufficient to warrant upholding a Crown appeal; the Crown must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed.

To similar effect, your Honours, in the matter of Bui, which came to this Court on the double jeopardy point, but in the Victorian Court DPP v Bui [2011] VSCA 61, in the leading judgment of Acting Justice of Appeal Ross, with whom Justices Nettle and Hansen agree, his Honour, with respect, adopted the correct approach in conformity with the principles that we have taken you to at paragraph 31:

It is not enough that the Director satisfies the Court that there is an error in the sentence originally imposed.  The Court must also be satisfied that a different sentence should be imposed.  That consideration brings me to the Director’s first ground of appeal, that the sentence is manifestly inadequate.

Implicitly, the Court would not have intervened unless it so found.  Now, if one accepts, and we contend there is really no issue about this in light of the jurisprudence in Lacey and in light of the extrinsic history to this legislation, that on this point at least there has been no change as a result of the abolition of double jeopardy.  It is, in our respectful submission, as Justice Charles said, perhaps a difficult question that has not been determined.  We, despite our researches, have not located a single instance of an intermediate Court of Criminal Appeal increasing sentence without having determined manifest inadequacy.

In our submission, that is in total harmony with the purpose of a Crown appeal being different from those of a sentenced person.  The purpose of a Crown appeal, including as a primary purpose, to correct plainly inadequate sentences, rather than enabling the Court of Criminal Appeal to, as they did in this case, impose what they said was an appropriate sentence.  So, in our submission, that is a special leave question.

HAYNE J:   Can I just make sure I understand properly the sentencing position?  Is it set out at page 256 of the application book?

MR CARTER:   Yes.

HAYNE J:   Which is 12 months custody at the County Court, but in effect minimum 2/4 in the Court of Appeal?

MR CARTER:   Correct.

HAYNE J:   That rather bespeaks, does it not, a conclusion that trying to avoid either the language of manifest inadequacy or the language of a different sentence, but the sentences are very different, in effect, are they not?

MR CARTER:   Well, your Honour, can I make a number of responses in response to that?  The first is that if it is legitimate to determine that a different sentence can be imposed, that can be done as a matter of principle without a determination of manifest inadequacy.  In this case the Court of Appeal, with respect, have made it very plain that there is no need to consider this ground and that 246 ‑ ‑ ‑

HAYNE J:   The point I am raising for your consideration is really if this point is a good point is this the case in which it arises where there is such a marked disparity between sentence, at first instance, and sentence in the Court of Appeal?

MR CARTER:   Your Honour, that, with respect, is one reason why it is a good case.  If your Honour looks to the head sentences ‑ ‑ ‑

HAYNE J:   Three plays 3/6, yes, I understand that, but the structure of the sentence is radically different surely?

MR CARTER:   Can I address some other matters that occur here, your Honour?  If manifest inadequacy, as we say the Court of Appeal was bound to confront, had been approached there then would have been the question of the residual discretion.  It is common ground that it was the subject of submission in the Court of Appeal ‑ for that reason we have not inflicted the transcript upon your Honours ‑ but the whole case in the Court

of Appeal was in the end, even if there is error, it is not manifestly inadequate, and even if it were you would not intervene, given the significant delay that there was between the offending and the hearing in the County Court.

The other matter, in answer to your Honour Justice Hayne’s question, is that despite the fact that there was considerable argument in the Court of Appeal on the manifest inadequacy ground there is no reasoning addressing it because the reasoning just stops at the point of not manifestly inadequate, not need to determine manifest inadequacy.  Even if your Honour Justice Hayne was right, which we do not, with respect, except to say that manifest inadequacy could be inferred from the increase on the non‑parole period, there is no reasoning as to how the court got to there.  There is no assessment of the argument that, in fact, what her Honour Judge Sexton did after a very lengthy plea was to pass a sentence that was entirely within the range.

We have set out in the written submissions at page 260 in footnotes 28 and 29 some of the cases that her Honour was taken to.  So normally this Court has always, with respect, insisted on strict compliance with matters of power and jurisdiction in Crown appeals.  In this case it is cut off at the pass with the conclusion that we do not need to go there.  That, on our research, is a first.  It happened without argument, without any indication that it may occur, notwithstanding the fact that there is the pre‑existing dicta of Justice Charles and that the point had been also left open in the matter of Hudson, which we have identified in the written submissions.

So it is submitted that it is in the interests of justice in the individual case that there is a reasonable prospect of success and that, as a matter of principle, the approach that the Court of Appeal has taken in this case requires correction.  Perhaps if I have not made this clear, if what occurred here is correct then Courts of Criminal Appeal are entitled to increase sentences that are otherwise within the range and that is totally contrary to the whole history of Crown appeals that this Court has, with respect, very jealously guarded.  If the Court pleases.

HAYNE J:   Yes, Mr Beale.

MR BEALE:   Your Honours, the applicant’s arguments are flawed for at least the following six reasons.  Firstly, the language of the relevant provisions which speak of error generally, not merely the fourth kind of error described in House v The King, is contrary to the submissions being put by the applicant.  Secondly, so is the second reading speech, which explicitly refers to error in the House sense.  Thirdly, so is the explanatory memorandum, and I will take your Honours to that in due course.

Fourthly, this Court’s exposition of the range of errors that can justify overturning a sentence and, in particular, I am thinking of cases such as Dinsdale and Carroll, is against the applicant.  Fifthly, the applicant’s written submissions in the Court of Appeal ‑ and I have referred to them at application book 272 ‑ is against them.  Finally, policy considerations or the purpose of the relevant provisions run counter to the applicant’s argument.

HAYNE J:   Well, shall I speak only for myself, but if attention focuses on 289(1)(b), rather than on 289(1)(a), of the Criminal Procedure Act, the question becomes what is meant by the criterion of which the Court must be satisfied that a different sentence should be imposed.  Now, in that regard I would understand the applicant to say against you that what is said in Bulfin at least suggests – they go no further than that – that the phrase, a different sentence should be imposed, requires consideration of matters I think identical to but perhaps only matters that include those captured by the phrase, manifest excess.  Now, what answer would you make to that proposition if I have sufficiently captured it?

MR BEALE:   Your Honour, when one goes to the relevant text one cannot look at 289(1)(b) in isolation, one has to have regard to the fact that 289(1)(a) expressly deals with the concept of error.

HAYNE J:   Let it be assumed that error includes all four species of House v The King error.  I would understand the argument against you to be that that is not the preferred construction, but leave that aside, assume it to be so.  Nonetheless, the court cannot be persuaded that a different sentence should be imposed unless it is satisfied that there has been manifest inadequacy because, as Justice Callaway says in Bulfin, there is no single answer, there is simply a range and a court should not conclude a different sentence should be imposed unless the sentence imposed, at first instance, falls outside the range.  Now that is an argument against you, I think.  What is the answer?

MR BEALE:   Firstly, a question that your Honour put to my learned friend during his submissions is of assistance to me in answering your question now.  Your Honour put to him that if a sentencing judge makes a clear error of law does not that found without law a prosecution appeal, for the purpose of establishing a matter of principle?  If I can, your Honour, refrain from giving an example, but perhaps an example might be if in a case where a female teacher was charged with maintaining a sexual relationship with a 15‑year‑old male student and the sentencing judge approached the matter with the view that that is much less serious than a male teacher maintaining a sexual relationship with a 15‑year‑old female, it would be in the public interest not only for the Director to bring an appeal based on specific error, but it would be also in the public interest and would uphold the purpose of Crown appeals, which is to give guidance to sentencing courts, that that should be a sufficient basis, that specific error, for the Court of Appeal to be able to say, we think a different sentence should be imposed, the original sentence has been infected by error, without having to also find that the sentence was manifestly inadequate.

Now, one argument that is put against me by my learned friend is the suggestion that one would obliterate the distinction between appeals against the severity of sentence by accused persons and appeals by the Crown against the leniency of sentences if specific error was in itself sufficient to ground resentencing.  There is no such obliteration, your Honour, because as Green’s Case makes very clear the residual discretion still exists and there are a number of matters ‑ for example, the conduct of the Crown ‑ that might lead to the Court exercising its residual discretion and despite there being specific error, dismissing the appeal.

I have given one example, your Honour, of an error – a specific error – which would make it in the public interest to overturn the original sentence, without a finding of manifest inadequacy.  It is not difficult to think of others and if, for instance, a sentencing judge gave a substantial discount for a plea of guilty, accompanied by a declaration as to the quantity of that discount, and that discount was given in circumstances where the plea was entered very late in the piece, where the prosecution case was an overwhelming case and where it was very difficult to see that any remorse motivated the plea, that would be an appropriate circumstance for an intermediate Court of Appeal to uphold a Crown appeal against the leniency of the sentence, even if they did not go on to find manifest inadequacy.

I must go back, in my submission, to the language that the legislature has used in section 289. The fact that there has been a specific reference to error without qualifying it, without inserting the words, error that results in a manifestly inadequate sentence, is a matter of significance. It is inconceivable, in my submission, that in drafting this provision and in enacting this provision that error in the broad sense described in House v The King was not under consideration, and that proposition is supported when one goes to the second reading speech ‑ and this is behind tab 1 of my learned friend’s materials ‑ on the second page, which is actually page 8 of 12, you will see towards the bottom of the page:

However, it has been clear since the High Court decision in House v. The Queen (1936) 55 CLR 499 that the court’s power is not unfettered; a sentence may only be set aside if there was an error in the sentencing process, which includes sentences that are manifestly excessive or manifestly inadequate. The bill embeds this error principle, making the law clearer and more accessible.

Then, your Honours, under the heading “Prosecution appeals against sentence” it reads:

The error principle that I have just discussed will also apply to prosecution appeals against sentence in the Court of Appeal.

The second reading speech goes on to give an example of a manifestly inadequate sentence, but it is nothing more than an example, and the passage that I have just read confirms that error in the sense described by House, and not limited to manifest inadequacy, can suffice.  If one then goes, your Honours, to the explanatory memorandum and turns to page 106 and the passage dealing with clause 289, it reads:

provides for how the Court of Appeal must determine a Crown appeal against sentence.

The court must allow the appeal if the DPP satisfies the court that there is an error in the sentence originally imposed and that a different sentence should be imposed.  See the discussion of “error” in relation to clause 281.

I make the point that error is used in the relevant provision to include presumed error, manifest inadequacy, but it is not limited to it.

HAYNE J:   What, if anything, are we to make of the differences between the sentence imposed at first instance and the sentence imposed by the Court of Appeal?

MR BEALE:   It indicates that the court was strongly of the view that the sentence was significantly inadequate.  The court, of course, did not go so far as to say it was manifestly inadequate, but the result could certainly not be described as tinkering, even though that is a phrase that is used in my learned friend’s submissions when he is talking about the respective head sentences.  In my written submissions, your Honour, I submitted that this would not be an appropriate vehicle for a grant of special leave.  The point that I was making there was that in the applicant’s written submissions in the Court of Appeal, which are set out in the application book at page 272, the following point was made.  This is paragraph 22:

“It is submitted that the judge took into account all relevant considerations and did not have regard to any irrelevant considerations.  To that extent, the sentence imposed was not vitiated by specific error….”

HAYNE J:   Mr Beale, I think we need not trouble you further.

MR BEALE:   Thank you, your Honour.

HAYNE J:   Yes, Mr Carter.

MR CARTER:   Your Honour, just taking the last point first.  The submission to the Court of Appeal orally was that your Honours would not be satisfied that there was any error, but even if there were would not be persuaded that a different sentence is warranted and the focus of the argument became ultimately manifest inadequacy.  As to the textual point raised by my learned friend, it is clear beyond any doubt, in our submission, when one examines the transition to the current provisions that the legislature has specifically intended to preserve the previous position.  It would take a very clear statement on the part of the legislature to give to Courts of Criminal Appeal the capacity to intervene without a determination of manifest inadequacy.

Just as on conviction appeals this Court has held that the court has a duty to determine the ground, it is difficult, with respect, to see how for the first time because my learned friend does not point to examples of it occurring, the court has just not decided the issue, yet resentenced.  The statement of special leave questions that we frame in respect of these grounds at page 254 is can a Court of Criminal Appeal allow a Crown appeal against sentence and increase sentence without first having determined that the sentence imposed was manifestly inadequate.  In our respectful submission, it is a live question.

It is clearly material in this case where the applicant had no opportunity to submit to the Court of Appeal that they should not intervene simply on the basis of a finding of specific error because that was common ground between the parties that that would not occur.  As to the second special leave question, my learned friend correctly submits that that has been determined in our favour in Green that, yes, the purposes are different.  It is respectfully submitted that if this decision is not corrected that the distinction between the two types of appeal is very much obliterated because what was described by his Honour Justice Charles as a difficult question and by Acting Justice of Appeal Ross as the correct approach and by Justice Simpson as the proper approach has been entirely overlooked, without any argument, resulting in a situation where the applicant’s immediate time in custody has been dramatically increased.  If the Court pleases.

HAYNE J:   Thank you, Mr Carter.

We are not persuaded that the applicant enjoys sufficient prospects of succeeding in disturbing the actual orders of the Court of Appeal to warrant a grant of special leave to appeal in this matter. The question of construction of section 289(1)(b) of the Criminal Procedure Act 2009 (Vic), which the applicant seeks to agitate, by reference particularly to what was said about earlier legislation in DPP v Bulfin (1998) 4 VR 114, would not fall for consideration if leave to appeal were granted in this matter. Special leave is refused.

Adjourn the Court to 10.15 on Tuesday, 4 September next in Canberra.

AT 2.41 PM THE MATTER WAS CONCLUDED