Cumberland v The Queen
[2020] HCATrans 49
[2020] HCATrans 049
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D23 of 2019
B e t w e e n -
JESSE CUMBERLAND
Appellant
and
THE QUEEN
Respondent
BELL J
GAGELER J
NETTLE J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE,
ADELAIDE AND DARWIN ON WEDNESDAY, 15 APRIL 2020, AT 10.09 AM
Copyright in the High Court of Australia
MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friends, MR S.A. McDONALD and MR M.W. THOMAS for the appellant. (instructed by Peter McQueen, Solicitor)
MR M.W. NATHAN, SC: If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NT))
BELL J: Perhaps, Ms Shaw, before you commence, may I indicate that if at any time either you or Mr Nathan have any difficulty in terms of hearing or seeing the Bench would you please indicate that at the first opportunity.
MS SHAW: I am grateful, your Honour, for that information.
BELL J: Ms Shaw, you may take it that your outline filed in the Registry yesterday has been received by the members of the Court. Thank you.
MS SHAW: Thank you. If the Court pleases. The respondent in its written submissions has made a number of important concessions with respect to ground 3 of the appeal, being the ground concerning the failure to accord the appellant procedural fairness in the conduct of the hearing of the Crown appeal.
It is our submission that the effect of those concessions is that the appeal should be allowed on ground 3 at least. In light of the concessions made by the Crown I propose to address ground 3 first and the orders we submit the Court should make……allowing the appeal under ground 3. I will then address the remaining grounds of appeal, grounds 1 and 2. It may well be that those grounds fall away to some extent because the fact that the appeal is allowed on ground 3 means that the current position with respect to considerations relevant to the residual discretion really need to be addressed at the current point in time or the near future and the question whether the Court of Criminal Appeal erred in the way it dealt with them or failed to deal with them in the past potentially becomes somewhat academic.
The appellant was sentenced by her Honour Justice Blokland to imprisonment for a period of three years six months, with a starting point of six years having regard to a reduction of 25 per cent for the plea of guilty, and other period - a period in custody on bail. Her Honour ordered that that sentence be partially suspended after two years for a period of three years from the date of release, and during the first year of that suspension he would be on strict conditions involving electronic monitoring. The sentence was backdated to commence on 27 June 2017 having regard to those matters I referred to of the period of six months one day on remand and the period of electronic monitoring before sentence.
The Court of Criminal Appeal allowed the Crown appeal on the ground of the manifest inadequacy of the sentence and imposed an overall sentence of eight years’ imprisonment with a non‑parole period of five years, five months and one week backdated to the same date.
Before I take the Court to the history of the matters before the Court of Criminal Appeal and facts that establish the denial of procedural fairness can I first briefly identify where we are going and the submission that we ultimately wish to make about the consequences of allowing the appeal on ground 3.
That is the proposition which we will develop in due course and which appears at point 10 in our oral outline, namely that this Court is in a position to determine for itself that having regard to the circumstances that now exist the appropriate outcome of the proceedings is that the Crown appeal to the Court of Criminal Appeal should be dismissed. The denial of procedural fairness has resulted in the appellant being in a very unusual situation such that his case is really not an appropriate one for a Crown appeal to be allowed.
The circumstances in particular include the following. First, the fact that as a consequence of the Court of Criminal Appeal’s orders, made in denial of procedural fairness, the appellant has now served in custody a period substantially longer than the original custodial portion of the sentence that was imposed on him by Justice Blokland more than nine months longer at the present time, we submit that this means that the Crown appeal at this point would not…..a manifest injustice.
Secondly, the fact that the Court of Criminal Appeal orders are to be set aside will mean that there is not a continuing warrant for the appellant’s incarceration and he will be entitled to be released. That will mean that any further consideration of possible resentencing would involve reimprisoning the appellant after he has been released for at least some time.
Thirdly, there are personal factors relevant to the appellant, together with other matters, the most important probably his significant youth, the fact that he was expected to be a very good candidate for rehabilitation and the fact that when he was sentenced by Justice Blokland he had made substantial progress in that regard.
Fourthly, there is the general powerful consideration that if the matter were remitted for consideration by the Court of Criminal Appeal the effect of that would be to expose the appellant to sentencing jeopardy for a third time with the ongoing uncertainty for him as to his fate.
We submit that combination of circumstances is highly unusual, indeed probably unique, and, in our submission, it means that the present appeal now holds no real precedential value. To the extent that it would have been said to serve that purpose previously, the reasons for judgment already provided by the Court of Criminal Appeal identify the applicable sentencing standards and the principles relating to section 55 of the Sentencing Act better than the imposition of any further term of imprisonment on the appellant at this stage could.
As I say, I will need to come back at least to some of those points but we thought it might be useful to give the Court an indication of where we are……before explaining in a little more detail the course that led to the admitted denial of the procedural fairness in the Court of Criminal Appeal.
BELL J: Yes, thank you for that, Ms Shaw. I think you may take it that the members of the Bench are familiar with the procedural history.
MS SHAW: Thank you, your Honour. If that be the case, your Honours, the only point that we would make is perhaps to draw the Court’s attention to the email of Mr Thomas of 1 August which the Court may be familiar with where he did, at paragraphs 12 and 13, raise the residual discretion and the question of rehabilitation ‑ ‑ ‑
BELL J: Where do we find the email again?
MS SHAW: That is in the appellant’s book of further material. Would your Honours go to page 109 of that further book of materials? Mr Thomas sent three emails. This was the third. It was directed to section 55 but, importantly, at paragraph 12 Mr Thomas states that:
if the comparison with Roe v The Queen is utilised –
This is the fourth line in the paragraph commencing:
Alternatively, it could be argued that Mr Cumberland is penalised by being subject to that new regime, if the comparison with Roe v The Queen is utilised, as the comparison is not fair‑ as the former case was not subject to the new s 55 regime, whereas the Respondent in this case potentially is. In this regard, the residual discretion referred to in, inter alia, Wilson’s case comes into play, as it does in respect to the matter that follows, in relation to rehabilitation.
BELL J: Ms Shaw, as I understand your opponent’s submission it is that the reference to the residual discretion and to Wilson is to the reference in that case to the residual discretion either to dismiss the Crown’s appeal or to reduce the sentence that would otherwise be appropriate in light of discretionary factors. So, as I understand the submission that is made against you, this paragraph 12 of the email of 1 August was not an application for the court to consider dismissal under the residual discretion.
MS SHAW: Your Honour, that is certainly one interpretation as at 1 August, but critically at that stage we could not have anticipated that there would be a delay of some 10 months before delivery of judgment.
BELL J: Yes.
MS SHAW: Most importantly, from the appellant’s point of view, the appellant anticipated that there would be a…..hearing because he had indicated he wished to obtain a report about the appellant’s progress in prison and the court had indicated that it would permit him to put that. So plainly if the court had resumed and given him an opportunity to order the report and it was proximate to the date of resentencing, which it needed to be to make it relevant for resentencing, then if that date happened to be two weeks before 19 June then the question of the residual discretion was obvious.
We point out in this respect that the Crown as a second hurdle to its ability to succeed on a Crown appeal within the purposes of Crown appeals must not only show the point of principle that has been breached, but also the second hurdle that the court should not exercise its discretion to dismiss the appeal in the residual discretion.
So, your Honours, our submission is the effect of the procedural fairness error was to deny the appellant the opportunity to present material that would pertain to the delay and necessarily…..the issue of the residual discretion which the Crown would then have to ‑ ‑ ‑
BELL J: An alternative route to that outcome, Ms Shaw, depends on your second ground and the contention that it was an error to determine the respondent’s appeal – that is to indicate that the appeal would be allowed prior to the point of its determination.
MS SHAW: That is correct.
BELL J: Yes.
MS SHAW: What we submit about that, your Honours, is that the operation of residual discretion could not be constrained because the Court of Appeal announces that an appeal will be allowed at a point immediately after…..had concluded and then later announces the sentence without giving the appellant the opportunity to be heard before it essentially delivers its decision.
BELL J: Yes.
MS SHAW: Fundamentally, we would submit on ground 2 that that is an error of law and it raises an important point of principle because the question of the residual discretion must apply before the decision is made as to whether the appeal is allowed, that is that if on the face of the papers we concede there appears to be no basis to raise the residual discretion then the court would then look at the appellant, as in this case, to explain how they justify a basis for the operation of the residual discretion.
BELL J: Yes.
MS SHAW: But whilst not so in this case – the point we arrive at under ground 2 is that a decision as to whether or not…..be allowed must be made - that is a sentencing appeal by the Crown can only be made at a point in time proximate to when the court has been apprised of all relevant circumstances that might impact on whether or not residual discretion should be - - -
BELL J: Yes.
MS SHAW: Your Honours, if I can then perhaps move to the development of our points in relation to the ground 3 - in particular we point out that the court is familiar with the area of contest, in essence, between the appellant and respondent. The appellant submits, in effect, that the court should exercise the discretion for itself and submits the appeal - the respondent contends that it ought to be remitted to the Court of Criminal Appeal for resentencing and although the respondent contends that the appellant could have exercised or applied to the court for it to exercise the residual discretion at any time up to the delivery of judgment, that is, up until 19 June 2019, the submission is that if it is remitted it is not open, as we understand it, to the Court of Criminal Appeal to revisit the question of whether the sentencing appeal by the Crown should be allowed on the basis of the residual discretion. So that remained the area of dispute between the respondent and the appellant.
In our respectful submission, as I have said, we have said that the appellant did not, at the hearing on 18 July, make any submission about the residual discretion but we would submit that circumstances…..change might……19 June when…..filed 17 June the court advised the appellant, which included the - and this is the…..I think, in the appellant’s further materials at 116, an email from - that states that the appeal - the judgment will be delivered, the decision will be delivered before Chief Justice Grant, Justice Kelly and Justice Hiley.
Well, Chief Justice Grant was not on the appeal court that heard the sentencing – the Crown sentencing appeal – but was on the court bench of five that considered the section 55 point. So there was no indication in that email that the court proposed – that is the three‑member court proposed to deliver its judgment on the same day as the five‑member court.
The proceedings that occurred at the hearing of the five‑member court are contained in the respondent’s book of further materials at page 15 and we point out at the conclusion of those submissions – announcement of orders – his Honour Chief Justice Grant announced the answers to the questions that were the subject of reference and appears not to have left the bench and reconstituted when Justice Kelly at page 16 announced the result of the Crown appeal against sentence and resentenced the appellant.
Then, at the conclusion of her Honour’s orders in relation to resentencing, at page 17 Mr Thomas, counsel for the appellant at that stage, took the unusual step of rising to his feet and pointing out that the court – asking the court if it took account of the fact that this had been hanging over the head of the respondent for at least one year in this court and the Court of Criminal Appeal, and his youth, as he had submitted all along, is particularly pertinent. When, after her Honour Justice Kelly had thanked him, Chief Justice Grant was plainly on the bench and made a further point to him.
So, your Honours, we submit that – that history really did deny the appellant the opportunity to make any submission about residual discretion just as he had been denied, as is pleaded, the opportunity to present further material at that stage.
In our respectful submission, at point 8 of our oral outline we make the submission that in any event fairness requires that if the matter is to be remitted it cannot simply be allowed to proceed on – this is the Court of Criminal Appeal decision ‑ to allow the appeal is locked in and the only question is what new sentence should be imposed.
Your Honours, the fact is we submit that any resentencing that would occur at this point would be in very different circumstances from those which existed at the time when the Court of Criminal Appeal evidently decided to allow the appeal, being back on 2 August 2018. If the Court of Criminal Appeal were to consider resentencing only, it would be resentencing at a point in time almost two years after it had decided the appeal should be allowed and it would be resentencing at the point when the appellant had served the entirety of the custodial part of the original sentence imposed by Justice Blokland plus an additional period of potentially another 10 months.
BELL J: It would be resentencing, as you have pointed out, Ms Shaw, having the effect of returning the appellant to custody, he having been released since the commitment warrant of Justice Blokland would be the only matter to hold him in custody were the appeal to succeed on your third ground or, indeed, on any ground, but that is the further point that you make against the notion of remitter to the Court of Criminal Appeal. You say, in essence, it would be futile.
MS SHAW: That is so. To reimprison him after having been released would be a grave injustice.
BELL J: Yes.
MS SHAW: As we pointed out, the mischief that we raise in the way this matter proceeds is the subject of the argument we make and have made in relation to ground 2 and we submit the Court of Criminal Appeal should not have determined to allow the appeal until a point in time reasonably proximate to the making of final orders.
The point is that the discretion to dismiss the Crown appeal cannot properly be exercised without knowing the situation that is going to exist at the time of the disposition of the appeal and we submit that that mischief in relation to – which gives rise to ground 2 is even more acute now because of the further substantial period that has passed and the circumstances being very different now than at 2 August 2018.
So if I can then move to point 9 on our oral outline, where we submit that the Court has a discretion to dispose of the matter. We refer to section 37 of the Judiciary Act. So, in our submission, it is clear that the Court has the power to substitute an order dismissing the appeal in the Court of Criminal Appeal, in effect, make whatever order the Court of Criminal Appeal could make. It is a question of whether this Court considers it appropriate to exercise the discretion to substitute its own order or instead to remit the matter.
We accept that in some cases where an appeal succeeds on the basis that the appellant was denied procedural fairness in the court…..the appropriate course would be to remit. However, that is not necessarily always the case. It is a matter for this Court and in that regard we will refer to the more recent decision of this Court in HT v The Queen (2019) 93 ALJR 1307, No 20 in the joint book of authorities at page 459. The Court held that it was in as good a position as the Court of Criminal Appeal to finally determine the matter and to substitute its own exercise to the residual discretion.
In that case, the denial of procedural fairness related to both the inadequacy of the sentence and the exercise of the residual discretion. It appears at paragraph [22], page 1314, column 1 in the joint book of authorities at 466, and at paragraphs [51] and [52] their Honours then set out their reasoning that this Court - the Court did not consider for itself the exercise of residual discretion and held that it should have been exercised in favour of dismissing the appeal.
We accept that HT was rather a different case than this one because there it was the non‑publication orders that meant that the appeal was capable of giving only limited guidance to future sentencing courts, but it provides an illustration of this Court deciding that it was in a position to finally determine the appeal after a denial of procedural fairness by determining the residual discretion - the exercise of the residual discretion itself rather than remitting.
The other case which I mention briefly, but without going to it at this stage, Green v The Queen (2011) 244 CLR 462, in the joint book of authorities at page 93 - that is a case, too, where this Court, rather than remitting the matter…..by the Court of Criminal Appeal in accordance with proper principles simply substituted its own view of the appropriate exercise of residual discretion. We respectfully submit that this Court therefore is in a position to determine the matter on the material currently before it.
If I can then perhaps move to point 2 as to the reasons why we would submit overwhelmingly the present circumstances favour dismissal of the Crown appeal…..discretion and some of those matters have already been canvassed. In that respect I remind the Court of the principles set out in Green v The Queen in relation to the purposes of the limited scope of Crown appeals in accordance with their purpose and that in particular at – I think in the joint judgment at paragraphs 1 and 2 the majority referred to the purpose of Crown appeals and residual discretion, and at paragraph 2:
circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice.
Your Honours, I refer briefly to paragraph 43 of the judgment at page 479 in the joint book of authorities at page 110 because their Honours identify circumstances other than resulting disparity that:
may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal –
which is plainly a circumstance we…..:
the imminent or past occurrence of the respondent’s release on parole or unconditionally –
Here the appellant was due to be released one week before the Court of Criminal Appeal handed down its judgment and he is released on the suspended operation of the sentence:
and the effect of re‑sentencing on progress towards the respondent’s rehabilitation.
Plainly, her Honour Justice Blokland below had a lengthy period of supervision that would enable the progress that had occurred to continue. This was not an appellant who had potential for rehabilitation. At the time he was sentenced by Justice Blokland he had completed the rehabilitation program, was on electronic monitoring bail having been subject to injury in prison and, secondly, he had been diagnosed with post‑traumatic stress disorder which had emanated from an assault when he was 15 and he had, in effect, had that diagnosis then in part of, no doubt, his rehabilitation period.
So at the time that he came to be sentenced he had completed his rehabilitation programs and it had been determined that he was at low risk of reoffending. So in the context of having to plainly address the consideration of general deterrence, her Honour’s sentence catered for an ongoing approach after two years of enabling that rehabilitation to be continued.
We also point out, your Honours, that one of the points made by the Court in Green at paragraph 79 was that the majority did not attach to the inadequacy of the sentence under appeal such epithets as “gross” or “an affront to the administration of justice” and we point out that in this case no such epithet was attached at core appeal book page 40 at paragraph [22]. It was simply described as:
the starting point of 6 years imprisonment was manifestly inadequate.
BELL J: That is the basis upon which this Court is to proceed. There is no issue but that the court below found Justice Blokland’s sentence to be manifestly inadequate, the sole ground of appeal that was before it. The issue raised by this appeal concerns the exercise of the residual discretion in the unusual circumstances that occurred. I just wonder, Ms Shaw, about the utility of you taking us back to issues bearing, so it would seem, on the question of whether the original sentence was, as the court below found, manifestly inadequate. It seems to me that is not in play before us.
MS SHAW: I agree with that, your Honour, and I apologise if I led the Court to think otherwise. I was alluding to the fact that in some cases – and I took you to Green - the Court took the view that, as I read the judgment, that was a matter which perhaps informed the question whether or not to dismiss the appeal in the exercise of the residual discretion ‑ ‑ ‑
BELL J: I understand.
MS SHAW: ‑ ‑ ‑ might appear to be manifest injustice. The other fact, as I referred to, plainly goes to the issue of the residual discretion.
BELL J: Yes, all right.
MS SHAW: Your Honours, we referred to the Victorian decision of Masange – Director of Public Prosecutions (Cth) v Masange (2017) 325 FLR 363; I will not take the Court to it - but as an example of where circumstances change at the point of delivery of judgment in the Court of Criminal Appeal almost, and the court therefore revisited the issue of the residual discretion and eventually dismissed the appeal against one of the appellants.
BELL J: Yes.
MS SHAW: So, your Honours, in our respectful submission, much of the points we make at point 10 have now been canvassed during argument and I simply highlight that ‑ ‑ ‑
BELL J: It is not only the points - it is not only point 10. Surely the issues covered under ground 2 at paragraphs 11, 12 and 13 have been canvassed, have they not?
MS SHAW: Yes, they have. Your Honours, can I be permitted to raise one matter in relation to the current circumstances that would, if the Court was minded to, exercise a residual discretion for itself. This is a matter that is not in dispute and it relates to the impact of the COVID‑19 pandemic. Would the Court permit me to inform the Court as to what that impact has been – that impact report having been obtained from the general manager of the Correctional Precinct in Darwin?
BELL J: Mr Nathan, is there any objection to the Court ‑ ‑ ‑
MR NATHAN: Your Honour, with respect to my learned friend that material is not – it is fully accepted by the respondent – whilst material contained within it - in what was discussed is not in contest the issue unfortunately is that it is really only a very small snapshot of a far broader picture which this Court would need to really take into account in order to come to a decision as to how COVID‑19 might impact upon time spent in custody.
BELL J: Ms Shaw, it is probably not your strong point and in light of Mr Nathan’s attitude it seems to me it might be better to move on to the matters that are the subject of your outline.
MS SHAW: Thank you, your Honour. Your Honours, I have already raised the question of uncertainty…..for potentially a third jeopardy. Can I then move to ground 2 and again I will be relatively brief because my proposed matters have been covered.
BELL J: Yes.
MS SHAW: Your Honours, as I have said, it is…..important point of principle. As we have submitted there was…..a substantial delay between the point when the Court of Criminal Appeal evidently determined that it should allow the appeal and resentence the appellant and the point when it actually did come to make its orders. We do not…..length of that in any particular place. It was the fact that the passage of a long time between the decision to allow the appeal and the…..is significant.
The essential point of ground 2 is that the matters which a Court of Criminal Appeal is required to consider in relation to the exercise of the residual discretion are matters relating to the circumstances that prevail at the time when the appeal is to be decided, that is, at a time when resentencing is to occur if it is to occur.
That is perhaps most obviously the case in relation to circumstances where the appellant has actually served the custodial part of the sentence and has been released from custody before the termination of the appeal or, as in this case, was within one week of being released. We make the submission, your Honours, that, bearing in mind that it had been indicated that if a report - Justice Hiley had intimated normally took about two weeks, so that if the court had at about 17 June notified the appellant that his appeal was about to be - the judgment was about to be delivered - and the appellant then raised the question…..order from the Court, which they had intimated they would give, that would necessarily have meant, if the correct process had been adopted, that…..would have been released on 26 June as was required, pending the obtaining of the report.
Therefore, when he came back to make submissions in relation to the residual discretion for the benefit of that report then the circumstances surrounding whether or not the Crown could negative the application of the residual discretion would have had a different complexion, that is, if the court had applied the principles of procedural fairness. Importantly, these are all considerations, we submit, of a kind that the balance of factors for and against the residual discretions can vary over time. Moreover, they are in general more likely to favour the offender as time extends longer.
In our submission, those considerations mean that it is unsatisfactory, and we submit an error, for the Court of Criminal Appeal to announce that it proposed to allow an appeal and then to adjourn for a protracted period before resentencing. Adopting that course creates the risk which we submit eventuated in this case, that matters which favour the exercise of the residual discretion to dismiss the appeal may arise only after the court has already announced that the appeal is to be allowed.
It may be that there is a great difficulty in separating the two stages of deciding whether to allow the appeal and then deciding the sentence on resentencing providing the delay between those two stages is not substantial. The way we would articulate the principle is that the determination of the residual discretion and the determination of the new sentence and the making of final orders should be reasonably proximate, so that there is no scope for circumstances to change substantially between the decision with respect to the discretion and the disposition of the appeal.
The final point that we would make in relation to this ground of appeal at paragraph 61 of our written submissions is that even in circumstances where the Court of Criminal Appeal appear to have already decided and announced the appeal was to be allowed back on 2 August 2018, the substantial delay that had occurred between then and the making of orders on 19 June 2019 meant that the Court of Criminal Appeal could and should have invited the appellant to consider whether he wished to make any further submissions regarding the residual discretion. That was obviously especially so in circumstances where the court had foreshadowed there would be a further hearing.
As we have already submitted the Crown at paragraph 27 accept that the appellant could properly have raised the residual discretion right up until the point of judgment and maybe even beyond. Given that is so, it was an error for the court to fail to give him that opportunity.
Your Honours that concludes our submissions on ground 2, and in relation to ground 1 the submission that it was an error for the Court of Criminal Appeal to fail to address the residual – we have probably addressed that ground already in relation to the position concerning procedural fairness because it necessarily follows and it occurred as a result of a denial of procedural fairness. We point out that the onus was always on the prosecution to persuade the court that the exercise of residual discretion should not be invoked.
BELL J: Yes, thank you, Ms Shaw.
MS SHAW: There is one further matter – if I might be permitted – by the time the appeal was actually decided the custodial portion of any sentence under appeal was extremely close to expiring ‑ ‑ ‑
BELL J: Yes.
MS SHAW: I think I have already mentioned this.
BELL J: I think you have, Ms Shaw.
MS SHAW: The appellant’s release from custody was imminent.
BELL J: Within a week.
MS SHAW: Within a week. If the Court pleases, those are our submissions.
BELL J: Thank you, Ms Shaw. Yes, Mr Nathan.
MR NATHAN: Sorry, your Honour, unfortunately it appears that our video link has dropped out. We can hear the Court ‑ ‑ ‑
BELL J: I see.
MR NATHAN: ‑ ‑ ‑ but unfortunately we cannot see any of the parties. We are attempting to try and resolve that from our end.
BELL J: In that case, Mr Nathan, the Court might take a short adjournment and when we are notified that the link from Darwin has been re‑established the Court will reconvene.
MR NATHAN: Yes, thank you, your Honour.
BELL J: The Court will now adjourn.
AT 10.52 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.08 AM:
BELL J: Mr Nathan, do I understand that you now have the link re‑established and you can see the Judges?
MR NATHAN: Yes, that is correct, your Honour. That is right.
BELL J: Mr Nathan, I am told that you had difficulty at times hearing me – can you now hear me?
MR NATHAN: Yes, your Honour.
BELL J: Yes, very well. Do go on, Mr Nathan.
MR NATHAN: Thank you, your Honour, and, your Honours, thank you for the Court’s indulgence in allowing that short break. Your Honours, the respondent’s primary contention in this matter is that when looking at error on the point of the exercise of the residual discretion by the Court of Criminal Appeal there needs to be a relatively fair and quite thorough assessment of the extent to which that question was properly before it…..
Yes, it is conceded that the progress of this matter was unusual in the way that from the initial hearing of the matter on 18 July 2018 through to the final handing down of the decision and resentence on 19 June 2019, but the respondent respectfully submits that throughout that period of time there were a number of opportunities for counsel for the appellant to raise the issue squarely of the residual discretion and the exercise of this by the Court of Criminal Appeal in its submissions, but it did not do so. This decision must be seen in the context of the express disavowal of the application of the residual discretion in this appellate exercise by the counsel for the appellant at the original hearing and ‑ ‑ ‑
BELL J: Mr Nathan, if I can interrupt you there - surely it is one thing for counsel for the appellant properly to have recognised that when the matter first came before the Court of Criminal Appeal the appeal had been brought in a timely way by the prosecution and no factor affecting the residual discretion was engaged.
That circumstance on one view was significantly different when 10 and a half months later the court pronounces resentence without consideration of the circumstance that, amongst other things, the appellant was due to be released under Justice Blokland’s order one week hence, to say nothing of what had happened in terms of his progress in the preceding 10 and a half months.
Traditionally, prosecution appeals are brought with some expedition in order to resolve the matter at the earliest opportunity. This unusual course surely produced a circumstance that required consideration of what should be the disposition of the appeal as at the date of the court’s determination in June of 2019.
MR NATHAN: The respondent’s – supposedly, the response to your Honour’s statement is that the process in which the Court of Criminal Appeal considered this exercise, firstly, the original manifest inadequacy ground of appeal and then the considerations of resentence, as then Chief Justice Riley stated and your Honour referred to in the decision of Wilson – I am jumping a little bit away from my respondent’s outline – but, in effect, your Honours, the two uses to which his Honour raises that matters which might impact on the residual discretion can be used – and, your Honour, Wilson is in volume 3 of the joint book of authorities at page 697. The relevant point at which I wish to draw this Court’s attention is at paragraph [27]. It commences at page 702 of the joint book of authorities and continues over to 703. But at [27](e) his Honour states:
Apart from double jeopardy considerations, the court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.
Those two different uses in which factors that might apply to the exercise of residual discretion, in the context of this particular matter, the concession by the respondent in relation to the denial of procedural fairness is in the respect of - the understanding between all parties and the court as at 19 June 2019 was that the matter had been – the appeal had been allowed and the exercise was one of a resentence. The delay, as unfortunate as it was, was obviously due through no fault of the parties but in respect of the difficulty in finding a five‑judge bench in order to convene the Full Court for the determination of each of the – the application of section 55 of the Sentencing Act.
But come 19 June 2019, what the respondent submits is that even looking at the transcript from that occasion counsel for the appellant was not in any way seeking to raise the issues that he did after the handing down of the decision, and there was an exchange which I will take your Honours to and that exchange is important in this sense, your Honours.
The respondent’s book of further materials commencing at page 16, the substantive part at 16 and going over on to 17, where the Full Court handed the decision down, the Court of Criminal Appeal convened, her Honour Justice Kelly then handed down the resentence - whilst it was a circumstance where one flowed into the other, and that is accepted by the respondent, as my learned friend raised in her earlier submissions, counsel for the appellant did take the unusual step of getting to his feet to raise aspects which really can be limited to two matters, the youth of the appellant - and this is at the bottom of page 17, at about line 43, counsel stated:
Your Honour, can I just say this. I note what your Honour has just said. Just one final thing.
Your Honour did take into account the fact that this has been hanging over the head of the respondent for at least one year in this court and the Court of Criminal Appeal. And his youth, in my submission, as I’ve submitted all along, is particularly pertinent in relation to that. That it’s been hanging over his head for that period of time.
Now, these are the matters that your Honour has expressly phrased in the exercise of the residual discretion to dismiss the Crown appeal. But, with respect, the respondent submits that counsel for the appellant on this occasion was raising it for the distinct purpose of clarifying, inquiring with the court whether those matters had been taken into account on the resentence.
That is really gleaned from the next exchange, where the Chief Justice in essence acknowledged it was not, in the Court of Criminal Appeal considering the resentence, asked counsel for the appellant what the point of raising those issues was and the response was that:
The point is, is that that is a matter of significance which must be taken into account in terms of this sentencing disposition.
BELL J: Mr Nathan, this is against a background of the court, 10 and a half months earlier, announcing that it proposed to allow the prosecution appeal, albeit no formal orders were made in that respect, and then standing the matter over for 10 and a half months in the events that occurred. So that one can on a view have some sympathy with the position of the appellant’s counsel when, without notice, he learns not merely the judgment of the five‑judge bench resolving the construction of section 55 but the pronouncement by the three‑judge bench of the sentence. As you acknowledge counsel took the unusual course of, as it were, raising matters of concern after the sentence had been pronounced.
Now, I just do not know what you really get out of the fact that at that point counsel did not raise the residual discretion. Is not the issue that you need to confront in this respect the second ground of appeal, the essence of which is that in the determination of a prosecution appeal the court should not allow the appeal and then defer for a lengthy period the dispositive orders since circumstances may have changed? The correct course is for the court, on the appellant’s submission, to consider the disposition of the appeal at a time proximate to the making of the formal orders. That is the issue it seems to me you need to confront here.
MR NATHAN: Certainly. Perhaps I will do it in this - and apologies for the slightly indirect nature of it - but if I can compare this case with the decision of the Court of Appeal of Victoria in the Director of Public Prosecutions (Cth) v Masange & Anor (2017) 325 FLR 363. It is reproduced in the joint book of authorities, volume 3 at 391. The reason why I say that that perhaps has some similarities is in that case the substantive hearing was heard on 17 October 2016. The decision was reserved and not handed down until 30 August 2017.
In the lead up to that decision - and sorry, before I proceed, at the hearing proper, so at the original hearing on 17 October 2016, both counsels for the respondents, that is, for Mr Masange and for Mr Kachunga, raised the issue of residual discretion fairly as matters had stood at the time, and consideration by the Court of Appeal in that case was squarely before it for its determination and then obviously the decision was reserved.
Immediately, or very soon before the intended handing down of the decision on 9 August - and this is at paragraph 54, page 409 of the joint book of authorities:
the Court of Appeal Registry informed the parties to these appeals that judgment would be handed down on 14 August 2017. When the matters were called on, but before judgment was delivered, junior counsel representing Mr Kachunga stood to inform the Court that there was a matter which he wished to draw to our attention. He said that Mr Kachunga had been released on parole since the hearing of the appeal, and continued:
I thought it prudent to raise that with the Court before judgment is handed down. It may be relevant to the exercise of the residual discretion or otherwise the orders to be made.
Now, obviously, the court goes on in that decision to talk about the unsatisfactory circumstance of these types of material, with this type of information not being given to the court beforehand. But importantly in that case, the over eight and a half months between the hearing and the ultimate decision, there was a very clear change in circumstance which had such a significant bearing upon the consideration of the residual discretion which had been enlivened afresh in very positive way by the counsel for the respondent in that case.
So the court ultimately made the decision that despite concerns in relation to the unsatisfactory nature of the way that this information came at such a late stage that there was still a significant basis, or still a substantial basis in order to exercise the residual discretion on behalf of Mr Kachunga. By contrast, Mr Masange in that case, who had been remanded in custody through that period…..no further consideration or no further attempt to enliven the residual discretion by counsel on his part despite that period of time, the court had little difficulty in dismissing the residual – the exercise of the residual discretion based on the arguments at the time of the proceedings.
In this particular case, your Honours, the difficulty in which the Court of Criminal Appeal in effect found itself, with respect, because of the deliberate decisions made by counsel for the appellant, the court was in a situation in which the timing of its initial indication of the allowance of the appeal – this is on 2 August – being done, it would seem, so as not to allow the uncertainty to hang over the appellant for an unknown period of time because of the Full Court’s intervention, necessary intervention, it is then in effect criticised when on 19 June, really the first available opportunity in order to hand down the resentence, it does not independently raise the issue of the discretion for the argument of parties.
The factor – I guess the extent to which the concession – and this needs to be clarified – the extent to which the concession that the respondent makes is limited to an unfairness in the sense of the resentencing exercise. The matters that your Honour has referred to which can very clearly be taken into account for either of those processes, in the circumstances of this case given the indication by the court on 2 August that the opportunity should have been given to parties to put forward those materials which were directly relevant to the resentencing exercise for the benefit of the appellant - the 10 and a half months in which he - obviously the delay, the fact of any circumstances of rehabilitation that could be put before it.
In particular, the concession was based on exchanges between counsel and the bench – the Court of Criminal Appeal, where counsel for the appellant had quite properly asked for the provision of the report and the court’s indication that, yes, whilst it would be appropriate it was perhaps premature at the time that they were talking about it, this being the second…..
So the understanding that parties would be able to seek further material and place it before the court underpins the concession that the respondent is making in this case, but only in that limited context. What your Honour is – the response in terms of the obligation of the Court of Criminal Appeal to enliven the consideration of the residual discretion when those factors could appropriately be dealt with upon resentence and really occasion no – and this is a balancing exercise of course between fairness to the accused but also fairness to the community in the sense of upholding sentencing standards and, your Honours, it cannot be forgotten in this case that the degree to which the Court of Criminal Appeal held that her Honour Justice Blokland’s original sentence was manifestly inadequate - we are talking almost a doubling of that sentence, certainly more than a doubling of the time to serve, and the requirement for the establishing of appropriate sentencing standards for what is ongoing criminal enterprise that causes untold damage to the community.
BELL J: One possible answer to that which Ms Shaw relies on is that when one looks at the circumstances of this case with the unusual twist that the court hears the appeal and then adjourns ‑ for reasons that need not be gone into - but for 10 and a half months and then pronounces sentence a week before the original sentencing order would have seen the appellant released, means that it is not a particularly good vehicle for the establishment of a sentencing standard. It is not in issue in terms of the conduct of this appeal that the sentence imposed at first instance was manifestly inadequate. The issue is what does justice require in terms of the disposition of the prosecution appeal in the circumstances that have unfolded.
Might I just take this up with you now, Mr Nathan. The Crown effectively concedes that there was a denial of procedural fairness, albeit the Crown restricts that to the loss of the opportunity to put material before the court bearing on the resentence as distinct from any consideration of the residual discretion. But when one looks at that submission, Ms Shaw’s response is to say, well, that necessitates setting aside the orders of the Court of Criminal Appeal.
Why would one remit the matter then to that court given that the effect of setting aside the court’s order is that the appellant would be released from custody on Justice Blokland’s order and the Court of Criminal Appeal would then be faced in two or three months’ time, however quickly the court can be reconstituted, with considering putting a relatively young offender back into custody after this somewhat unfortunate history? What does the respondent say to that submission?
MR NATHAN: Your Honour, the respondent says in effect that what is set aside by the Court of Criminal Appeal’s orders are those orders restricted to the resentence. The finding of error on the part of the learned sentencing judge, the finding that there was manifest inadequacy, can remain, in the respondent’s submission, and in circumstances where the respondent, upon remittal, would be in the very similar circumstance to a person whom that decision is made and then the matter has been adjourned off for resentence and further would be in, in my submission, similar territory, to cases that have come before this Court in which the Court has remitted matters back for the purposes of resentence only where there has been held to have been a denial of procedural fairness.
Your Honour, the imminence of the release that my learned friend referred to in her submissions, the weight that that bears upon this Court’s consideration and, indeed, upon the appellant himself, has to be tempered by the fact that on 2 August he was very much given the indication that his sentence would be increased and, indeed, increased to the point where, in excess of a five‑year maximum for a suspended sentence, therefore requiring the need to impose a non‑parole period.
That would have been obviously reinforced before the Full Court on 12 March 2019 when that very exercise was considered and determined in relation to how it should be applied in this case. So that is really the extent of what the respondent states. This Court can address the concession by the respondent, the impact upon those aspects of the Court of Criminal Appeal’s decision that should be set aside as a consequence, and, as your Honour has indicated, it is not in contest that the manifest inadequacy of the finding is in any way flawed, or there is no error in relation to the determination of the court in that aspect if we are looking at this point at the resentencing, the unfairness aspect of the resentence only.
BELL J: Mr Nathan, that last submission does not deal with the issue that I raised concerning the effect of allowing the appeal based on the concession as to the denial of procedural fairness. The effect of that would be to set aside the orders made by the Court of Criminal Appeal. There would therefore be no warrant of commitment authorising the detention under those orders of the appellant. The consequence would be, so Ms Shaw argues, that he would be released because Justice Blokland’s order made provision for his release some months ago.
Now, that is a circumstance that would bear on the disposition of the Crown’s appeal were the matter to be remitted to the Court of Criminal Appeal in that circumstances radically different to those that were before the court on 2 August 2019 or 2018 – whatever the date is. What is your response to that, Mr Nathan?
MR NATHAN: Your Honour, it really boils down to the fact that if your Honour – if this Court limits the setting aside of the Court of Criminal Appeal’s orders to the resentence that was imposed, but upholds the finding of manifest inadequacy, the Court of Criminal Appeal retains the power to remand until resentence and that power is one that in circumstances where if the resentence itself was set to one side and the purpose of the remitter was for the reconsideration of resentence given the change in circumstances, the primary finding as to manifest inadequacy is preserved, then the Court of Criminal Appeal has the capacity, has the power to remand prisoners until resentence in circumstances where it would also be able to consider a bail application ‑ ‑ ‑
BELL J: Why would there be a need for a bail application? If the orders of the Court of Criminal Appeal are set aside - put to one side, Mr Nathan, the court’s reasons, including its conclusion of manifest inadequacy, and look to the orders that it made and to the position that would obtain if those orders are set aside.
MR NATHAN: If the entirety of the orders is set aside, if the extent - the respondent’s position is that there is a capacity for this Court to demarcate, in effect, what orders of the Court of Criminal Appeal can be set aside or at least the effect of that. But putting that to one side, if the extent of your Honour’s - of this Court’s finding is that the entirety of those orders of the Court of Criminal Appeal must be set aside, then there would not be any power, certainly no power by the Court of Criminal Appeal to remand the accused in custody in those circumstances, it is conceded.
BELL J: Yes.
MR NATHAN: Now, those two things should arise in consideration of that. Firstly, this is not like the case of Kachunga where there has been some nine months in the community where the bona fides degree of limitation had been demonstrated and can be clearly put before the court for consideration of the residual discretion. If he remains in custody, if this Court were to remit, even on the basis of the exercise of residual discretion, the Court of Criminal Appeal could, it is submitted, certainly since one of the impacts of COVID‑19 is the suspension of jury trials - the Court of Criminal Appeal could be reconvened quite expeditiously, one would expect.
It is in those circumstances where even the subsequent release of the appellant may be for a matter of weeks, certainly not months. So the extent to which release from custody to any extent of course bears upon the issue of the - the residual discretion, but of course it must be contrasted where there has been the considerable period where someone has demonstrated the prospects of rehabilitation are not just a possibility, but have shown that they are a reality and it is in those circumstances that courts of criminal appeal find then residual discretion, that there is sufficient basis for it to be exercised.
Your Honours, we have moved significantly away perhaps from the respondent’s outline of its oral argument, but considering the effect of your Honour’s comment there is perhaps little utility at this stage to go through the periods - we say there are three distinct periods leading up to 19 June in which a number of opportunities were raised at subsequent periods of time for the counsel for the appellant to raise the issue of residual discretion but did not and, indeed ‑ ‑ ‑
BELL J: Mr Nathan, I think you can take it that the Court is familiar with the procedural history and understands your submission that the appellant’s counsel did not in terms invite the court to consider the residual discretion on the occasion of the initial hearing. There is an issue concerning the email and I think – I do not know whether you propose taking us to that. But apart from that matter it seems to me that the procedural history is well understood by the Court.
MR NATHAN: Yes, thank you, your Honour. I will just take your Honours to that specific issue and it may be - in fact it will be necessary to take your Honours to the appeal book - the appellant’s book of further material. Now, it is important to place the email in a context that occurred at the conclusion of the hearing proper on 18 July. This appears at pages 105 to 106 of the book of further materials. At about line 42, her Honour Justice Kelly thanks counsel for the appellant and says:
We will reserve our decision. Parties will be notified in due course of when it’s to be handed down. Mr Thomas, if the appeal is allowed and there’s to be a resentencing is this a case where further sentencing submissions would be required?
Counsel for the appellant responds:
I think that that would appropriate.
Then there is a discussion about whether it may or may not because of a variety of factors and being there are:
markedly changed circumstances between the time of sentencing and the time of resentencing –
noting time spent in custody.
So it would only be if there were further material that was actually genuinely relevant to the present circumstances of the offender.
MR THOMAS: Yes. I’m just being cautious on that subject. I’ve seen the respondent recently, but not so recently as to know whether or not there might be something that may emerge on that subject. I just don’t know.
KELLY J: What we will do with this, Mr Thomas: we will ask you to take instructions, and if there is anything relevant that you think should be put before the court for a resentencing exercise, if you would put that in writing and I guess forward it to Mr Nathan and to my associate. And then, Mr Nathan, if there’s anything that needs to be put in by way of reply, do that. A time frame would be – can you do that within 14 days, Mr Thomas?
The reason why I have taken you at length - there were in fact three emails that were sent by counsel for the appellant over 31 July and across to 1 August. The respondent submits that the second of those emails, which is in fact really the one that is in contest and one that is reproduced at 107 of the book of further materials - that this was in response to an invitation by the court to put forward in writing material going to the resentence. Indeed, the – sorry, apologies, your Honours, the email that is referred to at the bottom of page 107 is in fact the third of those emails – sorry, the first of those emails, as it is 31 July at 4.22 pm. But it is important that it states:
Dear Associate,
RE: Jesse CUMBERLAND – UPDATE RE SUBJECTIVE MATERIAL
The clear inference when read with the following email on 1 August at 4.06 pm, which is reproduced at page 109, that this refers to matters very clearly intended to be taken into account by the Court of Criminal Appeal in the exercise of the resentencing discretion. Importantly, the email on 1 August is headed “RE: Section 55 of the Sentencing Act”. As your Honours would be familiar, that was the very purpose of the referral to the Full Court for the discussion.
With respect, there are 13 paragraphs. They can be broadly, I suppose, separated into three distinct issues. Paragraphs 2 to 9 deal with the retrospectivity of the application of section 55. Paragraphs 10 and 11 deal with one aspect of - sorry, paragraphs 10, 11 and 12 deal with the suitability of Roe v The Queen as a bare comparable in the circumstances of this case because there had been a change in the non‑parole period from 50 per cent to 70 per cent.
Whilst the respondent does not necessarily accept the submission that because of an increase - statutory minimum increase from 50 to 70 per cent that what is a relevant starting point for certain kinds of offending somehow is undermined – the relevance of that decision as a sentencing standard is undermined, that is not accepted by the respondent. What is clear is that is the ‑ ‑ ‑
BELL J: Mr Nathan, appreciating that is the respondent’s position, in paragraph 12 you do have reference to the residual discretion and to Wilson’s Case, in which, as I understand it, then Chief Justice Riley laid out the principles that govern the exercise of the residual discretion in the disposition of prosecution appeals in the Northern Territory.
Now, there are competing interpretations of what is sought to be conveyed. On the one hand, the respondent’s position is this is simply an invitation to the court to consider that a lesser sentence on resentencing than might otherwise be imposed is appropriate and on the other hand Ms Shaw says, well, fair and square this is the raising of the residual discretion. Does it get any better than that?
MR NATHAN: It does, your Honour, with respect. The exchange between counsel for the appellant and the Court of Criminal Appeal on 2 August 2018 is very informative, it is submitted by the respondent, in resolving that issue. It is in those exchanges, which are contained, in effect, from page 111, so following on from the previous email in the appellant’s book of further materials - page 111 through to 115 - that when you look at that exchange it squarely places the context of those emails in the context of or being directed towards the exercise of the resentencing discretion by the Court of Criminal Appeal. At page 2 counsel for the appellant raises - informing or inquiring whether the court received three emails. The court then says:
we’ll deal with those in a minute –
comes to hand the decision down saying that:
the appeal is allowed for reasons which we will publish in due course . . . We have determined to resentence the respondent and we’re –
With respect it should say “we” – we are:
determined that that sentence will be or is very likely to be in excess of 5 years’ imprisonment; and will therefore require the fixing of a non-parole period.
Now, that raises issues in relation to the non‑parole period, including what is the statutory minimum non‑parole period. Some of those matters were raised in your email, Mr Thomas.
Then there is the discussion about the Full Court referral. But importantly, over the next page, there is really just discussions about when that might ‑ some of the procedural matters, but over at page 114 at about line 27, counsel for the appellant raises:
Now, your Honour, just a further thing. Just to be quick, but I think it’s incumbent upon me to draw attention firstly – formally, at least, to the email concerning the question of subjective matters which your Honour’s raised the last time the matter was – well when the matter was heard. I’ve sent an email there just advising that I’m instructed that Mr Cumberland’s making good progress in the prison. But ideally a report concerning that requires, according to the prison officers, an order from this court.
Her Honour’s response, clearly understanding that this was towards the resentence:
Well there’s plenty of time because we’ve got to work out the basis on which he’s going to be sentenced yet with a five‑person bench. So, it’s not going to take - it’s going to take a while.
Counsel for the appellant, rather than correcting a mistaken assumption as to the context in which he was putting these submissions, namely that the court it would seem clearly is focusing on the resentence when he is seeking to enlighten afresh the residual discretion, noting that there is the express disavowal some weeks before, instead of taking the opportunity to clarify that responds by saying that he was keen to get on with that aspect and that - going across, his Honour Justice Hiley states:
Are you suggesting than an institution report should be called for now or would you rather wait until ‑ ‑ ‑
MR THOMAS: I’m keen to do so because your Honour I know time flies and all of a sudden there’s nothing done and then – and I’m in difficulties.
His Honour Justice Barr responds:
Just that it might be out of date by the time the resentencing exercise actually takes place.
Counsel for the appellant responds:
Yes, perhaps that is possibly the case, yes.
Then there are some further discussions about the timing of such a report. But also, importantly, her Honour Justice Kelly states at about line 22 on page 115:
All right. And, was there something else you wanted to raise.
Now, an open invitation to raise not just matters contained in the previous emails. That is what in fact the appellant – counsel for the appellant restricts his submissions to, but an open invitation to raise anything, including something as significant as the exercise of the residual discretion.
The following two paragraphs deal with clarifying those three emails, and the extent to which the court should take those matters into account in resentence, it is submitted. When read as a whole, and then read with the email on 1 August, the only real inference to be drawn from that, it is submitted by the respondent, is that all of those matters were in a direct response to the invitation by the court in order to put matters in writing for the resentence.
BELL J: Mr Nathan, what does the respondent say to the proposition that the court erred in determining the outcome of the appeal but not proceeding in a timely fashion to make orders consistent with that determination. Rather, for reasons which are understandable, perhaps relating to the construction of the relevant provisions of the Sentencing Act, the court proceeded to defer making any dispositive order with the consequence of the 10-and-a-half-month delay. At the heart of ground 2 is the submission that the process went awry and the reason that it went awry is that in determining the correct and just outcome of a prosecution appeal the court should be looking to the circumstances that exist at the time it makes its orders. What is the respondent’s response to that?
MR NATHAN: Your Honour, it is twofold. Firstly, the decision to hand down its decision, it is the result of the finding of manifest inadequacy of the original sentence on 2 August, that at that point in time the court was aware of the need to have the section 55 matter referred in the Full Court. There were two that ‑ there is discussion between the parties as to when that might occur and some dates of perhaps October, November or December of 2018 were put forward as being likely times when perhaps the five‑judge bench I suppose could be convened.
As at 2 August the court was entitled and, indeed, it is understandable that there would be a desire on the part of the court not to unduly delay the indication to the appellant of the success of the Crown appeal. It, on that date, foresaw a potential delay of some three months or thereabouts in circumstances when the indication of the increase to the sentence was going to be far greater than those three months of actual custody that the appellant might serve waiting for the Full Court’s decision and then resentence.
Even if that was put out to say five or six months by the time of resentence, the Court of Criminal Appeal was entitled to make a decision on that occasion, with an understanding as optimistic as it turned out to be that a Full Court would be able to determine this issue in a relatively timely manner and then the matter be brought on for resentence, that the accused would be remanded in custody and that the factors that would go towards the exercise of residual discretion really would not raise themselves in the significant way that they did as perhaps in Kachunga as opposed to the co‑accused in the case of Masange where the eight months in custody was deemed insufficient for raising a residual discretion.
So the first port of call really, or the first response by the respondent to the issue of the decision on 2 August is that there should be a degree of caution exercised, with respect, by this Court in finding error on the court, based on the information that was before it at that date. That is the first.
The second, your Honours, is the extent to which the delay and the matters that are raised – I note that they were not specifically addressed in the oral submissions of the appellant, but the matters that were primarily raised in the written submissions of the appellant in terms of enlivening the residual discretion - and here where we are talking about the imminence of release, delay, demonstration of positive rehabilitation and the asserted stance of the Crown Prosecutor - that when looked at those four matters squarely, that even come 19 June, whilst there may have been an unfairness in terms of the resentencing exercise, because of the nature of the exchange that we have just gone through and the understanding that further material would be sought by the appellant and if received appropriately by the court and that was accepted, putting that to one side, what you then have is, yes, a period of some 10 and a half months, but the imminence of release we say was dealt with by the indication on 2 August as to the extent of the increase in penalty.
The appellant could be under no fair misunderstanding of the likelihood of his release, and I know we talk about how the court has raised the issue of the resentence being handed down one week before the custodial release date under the original sentence but, given the indication on 2 August, it must have been clear to him that he would be looking at significantly longer in custody, appropriately for the seriousness of the offending, and the sense of unfairness which is raised ordinarily in cases such as this is the unfairness of an expectation of being able to plan for the future, an expectation of a release into the community, connection with family and friends, and that being snatched away really at the eleventh hour. Well, with respect, in this case that clear indication occurred many months ago.
Secondly, your Honours, delay in those circumstances, to try…..perhaps, but delay that certainly cannot be sheeted home to the Crown in the appeal, as your Honours indicated, it is the unusual conflation of the number of unfortunate circumstances really where in a six‑judge jurisdiction, finding five judges to sit as part of a busy criminal list is extremely problematic. It is in those circumstances that ‑ ‑ ‑
BELL J: I am sorry, Mr Nathan, I am just trying to ‑ ‑ ‑
MR NATHAN: Sorry, your Honour.
BELL J: Do I take it we are now at point 12.2 of your outline where you are dealing with ‑ ‑ ‑
MR NATHAN: Yes, sorry, your Honour, I should have taken that ‑ ‑ ‑
BELL J: Yes.
MR NATHAN: ‑ ‑ ‑ should have taken your Honours to that clearly. Really, the issue of that claim, whilst it is a discrete factor, certainly, it does perhaps have some work to do, it does somehow meld into some of the other considerations - the imminence of release, while I have already spoken about that, but also it does come up in 12.3 when we talk about the demonstrations of the rehabilitation. Obviously, the longer that a period of time occurs between the handing down of a decision and a resentence - sorry, I should say the hearing of the argument itself and the handing down of a decision - there can be some considerable progress made towards rehabilitation. However, ordinarily the significance of that is where the appellant has been released into the community and is able to demonstrate that positive rehabilitation.
On that issue, though, the context in which the consideration of rehabilitation needs to be really grounded in consideration of a few competing interests, the first of those is the role that rehabilitation plays in respect of this type of offending. Now, where there, as it is put before the court, the original sentencing court, that this was an ongoing commercial enterprise and was a serious example, for instance, where the commercial supply of cannabis was some 60 times the commercial quantity.
I know across the jurisdictions that cannabis can have varying degrees - can be treated with varying degrees of seriousness, in the Northern Territory the impact that cannabis has in the community, in particular in indigenous communities, is devastating, and the Courts of Criminal Appeal in this jurisdiction have long held the importance of deterrence, denunciation and punishment when looking at these types of matters. It was also a commercial quantity, supply of a commercial quantity of a Schedule 1 drug. Then there were other features in terms of possession of tainted property, the proceeds of the offending.
When looked at as ongoing commercial activity, the courts have long held that rehabilitation will have a reduced impact. Your Honours, I will take your Honours to - this is volume 3 of the joint book of authorities, and the decision of R v Roe [2017] NTCCA 7. In particular, at 589 of the joint book of authorities, and paragraphs [53] through to [55], in particular the court in that case held, at paragraph [53], page 589:
It is also well established that when sentencing offenders for trafficking in commercial quantities of drugs of dependence, denunciation, community protection and deterrence will be the dominant sentencing purposes while rehabilitative purposes will be of secondary importance.
That is really clarified even further where the court quotes Justice of Appeal Batt in DPP v Leach (2003) 139 A Crim R 64 at paragraph 3, where his Honour stated:
[T]he very serious nature of this offence of trafficking in methylamphetamine in a commercial quantity, objectively considered, required general deterrence and denunciation by the court of the respondent’s conduct to prevail over the rehabilitation of the respondent as the principal purposes to be effectuated by the sentence.
Certainly, Schedule 1 drugs and the statutory focus on the maximum penalties and the seriousness of that offending, the comment of his Honour, it is submitted, can be extended to other commercial supplies of Schedule 1 drugs, or drugs of dependence generally. There are further statements of the Northern Territory Court of Criminal Appeal - that was referred to in R v Indrikson [2014] NTCCA 10 at paragraph 30 where the Court stated:
While the respondent had no relevant prior convictions, he was not a first offender and his prior good character and prospects of rehabilitation do not carry much weight in the circumstances of this case. As the respondent was highly placed in an enterprise he established for the importation, distribution and sale of drugs, the principal sentencing objectives are general deterrence and protection of the community, punishment and denunciation.
So, when looking at the delays your Honour has indicated between 2 August and 19 June, and the focus upon those matters which might go towards the demonstration of positive rehabilitation, it is fundamental to place the offending conduct in its context when looking at the impact that rehabilitation has on the sentencing exercise regardless of whether it is at first instance or on resentence.
Your Honours, the further matter in terms of rehabilitation is that it was uncontested before the court at first instance that he had made good progress in rehabilitation and, indeed, before the Court of Criminal Appeal. That was between ‑ ‑ ‑
BELL J: Mr Nathan, can I ask where this submission is taking us? Is this a submission that the conceded denial of procedural fairness could not have made a difference to the resentence had the appellant had the opportunity to place before the court a report ordered by the court from Corrections and any other material that he might have wished to?
MR NATHAN: Ultimately it is the consideration – yes, your Honour. Your Honour raised that - - -
BELL J: Is that pressed? Is that submission pressed, Mr Nathan?
MR NATHAN: Your Honour, in the context of the - your Honour has indicated or at least, sorry, has referred the respondent to the concern about the issue of ground 2 and the decision on 2 August 2018 to hand down the decision when there was then a 10‑and‑a‑half‑month’s delay. I have addressed the first aspect of that, which is the understanding of the Court of Criminal Appeal and the process that it expected to undertake.
I am now referring, your Honour, to that passage of 10 and a half months where again obviously it is not conceded by the respondent that there was any attempt – there was certainly opportunity, and there was no attempt by counsel for the appellant to raise it, but it does come down to the extent to which there is consideration by this Court as to matters or factors that are before it for considering the 10‑and‑a‑half‑month delay whilst the accused remained in custody as being clearly demonstrative of sufficient basis to exercise the residual discretion.
What I am seeking to do by taking your Honours through paragraph 12 is that the matters that were pressed in written submissions as to – so those that should have been taken into account by the Court of Criminal Appeal and which the appellant was denied the opportunity to raise, that each of those needs to be placed in a proper context for it to be understood the weight that might be attached to each of those factors. That is the attempt, your Honours.
The final matter is the asserted stance of the Crown Prosecutor, but I do not – I am not sure if that was necessarily pressed by my learned friend. Very clearly in our written submissions we have taken your Honours through firstly the actual submissions that were made on sentence which in real effect was a matter of the Crown Prosecutor stating to the court had these offences not been so serious, a suspended sentence may well have been within range because of the character of the accused. However, given the nature of these, then a sentence may well exceed five years.
That statement, taken with the comparable decisions that were placed before the court which had starting points far in excess of the five year maximum for a suspended sentence, as well as submissions about the general seriousness of the offending, that when placed in a proper context this case can be clearly distinguished from those matters where there had been an express acceptance that a suspended sentence was put in range, or another mitigating factor, that is, where the Crown has then sought to change its position.
So, your Honours, as I have indicated, the purpose of taking your Honours through paragraph 12 really was the second limb of our response to your Honour’s proposition about ground 2, that whilst ‑ ‑ ‑
BELL J: If I can interrupt, I think your response to the question that I raised when I thought you might be directing the questions of the significance of the recognition of the appellant’s rehabilitation to a submission which I detected faintly in your written submissions, namely that the denial of procedural fairness did not have any capacity to affect the outcome, but clearly from paragraph 14 of your outline you make no such submission. Am I right in that understanding?
MR NATHAN: No, that is correct, your Honour. It is in circumstances where this Court must balance, firstly, with respect, the roles of parties but also the role of the Court of Criminal Appeal and the extent to which the matters that were not raised before it for consideration and where there were opportunities to raise it that a critique of the decision or the handing down of the decision and then subsequent resentence once the Full Court had determined its position, that that critique should be seen in circumstances where courts of all jurisdictions must receive assistance from parties before it and, your Honour - we have taken your Honour in written submissions to cases that deal with the responsibility of parties before it and the role of the court and not necessarily the standard and effectiveness of the arena, and run arguments on behalf of the parties, therefore crossing the adversarial threshold really.
BELL J: Yes.
MR NATHAN: Your Honours, the extent – might I just have a moment, your Honours? Just on that ‑ ‑ ‑
GAGELER J: Mr Nathan, if the court on 19 June 2019 had made an order for a report from Corrections, when, in the ordinary course, would such a report be expected to have been received?
MR NATHAN: Within two weeks.
GAGELER J: Thank you.
MR NATHAN: The institutional reports from Corrections which deal with programs that an offender might undergo and how successfully they may complete those programs ordinarily are done within two weeks. There are longer delays for psychiatric or psychological reports where there would need to be an interview and the like and they can take sometimes six weeks.
GAGELER J: Thank you.
MR NATHAN: Your Honour, the parts where I did refer your Honours briefly about the role of counsel, I will not take your Honours through it at length but I think it is incumbent upon me to raise with your Honours the decision of Pantorno v The Queen (1989) 166 CLR 466. That is reproduced in volume 2 of the joint book of authorities at page 275.
Now, the relevant consideration – this was a case that considered the application of some sentencing provisions, section 73 of the Drugs, Poisons and Controlled Substances Act (Vic) and the consequences that flow between categorisation between section 73(1)(b) and 73(1)(c). There was an error at first instance in that both parties referred to (1) when in fact - it was 73(1)(b) when in fact it should have been 73(1)(c). The discussion that is of relevance occurs at page 281 of the joint book of authorities, page 472 of the judgment. It is in the last paragraph where it states that:
The notion that either Court was under some general duty to “forewarn” the applicant or his counsel of the requirement to discharge the onus ‑
Now, I appreciate, your Honours, that the onus under section 73(1)(b) is not one that falls within the issue of the residual discretion, but it is in the circumstances where there are then more general principles about assisting the court and it involves all parties. It goes on to talk about:
the need to satisfy the court as to the purpose of his possessing a drug of dependence.
Then there was discussion about a decision of Bridges, which was before the Full Court. Where it becomes relevant is it states:
In principle, the notion is erroneous that a court must tell the parties what the law is. A court is under no duty to a party to advise him how to present his case; the court’s duty is to give him a reasonable opportunity to present his case ‑
There is then discussion of some further decisions of this Court. Towards the end of that paragraph, their Honours Chief Justice Mason and Justice Brennan go on to say that:
responsibilities of counsel cannot be assumed by the court, for its even‑handedness would be compromised by assuming a responsibility for the conduct of the case of one of the parties. We would not hold that there is some general duty, resting on either the County Court or the Full Court, to warn a convicted person or his counsel of the onus imposed ‑
in that particular section. The court considered – it went on, sorry, their Honours went on to acknowledge that at page 283 of the joint book of authorities, the second paragraph:
The difficulty about this approach is that it was not argued in the Full Court, though it falls precisely within the second ground of appeal to that Court. Failure to argue –
Now this is obviously in relation to, in one sense, special leave:
a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court’s attention to issues which, in the light of the judgment require further consideration by that court and to move - - -
BELL J: Mr Nathan, can I just interrupt you? I really do wonder about the usefulness of some of these statements from Pantorno to the circumstances of this case. This is not a question of the court advising parties on how they might conduct their case. Rather, in the circumstances that existed, no criticism is made of the prosecution in relation to the question of delay, but what happened was that the court, having heard the appeal on the first occasion then determines to adjourn the proceedings to reconstitute. There is a ten‑and‑a‑half‑month delay.
The Court then notifies the parties in terms that suggest what will be handed down are the reasons of the five-judge bench resolving the question of construction, it being understood and the respondent in this Court accepting that the appellant was to be given an opportunity to place further material before the Court of Criminal appeal before any resentence. In the circumstances as they unfolded, the court proceeded to pronounce resentence before giving the appellant’s counsel any opportunity to say anything. In those circumstances, one really wonders about the utility of recourse to Pantorno, if I may so, for my own part.
MR NATHAN: Well, your Honour, at the risk of pushing a dead horse up a steep hill, on the following page there is a discussion by their Honours in relation to the issue of where natural justice is not argued before the Full Court and this is at page 284, page 475. This is in a case where – and when I say in contrast to the instant case – sorry, when compared with the instant case, at the top of page 284 of the joint book of authorities:
If the issue of natural justice was not argued before the Full Court, can it be said that there was some error in the judgment of that Court? If there were no error affecting the judgment of the Full Court, there is no jurisdiction in this Court to set aside the Full Court’s judgment . . . The jurisdiction of this Court, once special leave to appeal is given, is to pronounce the judgment or order which the Full Court sitting as a Court of Criminal Appeal should itself have pronounced: Craig v. The King. Although that jurisdiction is as extensive as the jurisdiction of the Court of Criminal Appeal itself, it may be that this Court does not have jurisdiction to set aside a judgment correctly and regularly pronounced when the only ground which might warrant the allowing of an appeal is raised for the first time in this Court.
But the point that I really want to take your Honours to is what I would submit is a statement of general proposition. Further down that page at about point 6 there is a statement which begins:
However the question be resolved, it can be said that there is a general rule — of practice or discretion, if not of jurisdiction — that this Court will not ordinarily set aside, a judgment correctly and regularly pronounced when the only valid ground of appeal is raised for the first time in this Court. Grounds of appeal are not narrowly construed but they never the less confine the issues which, in any curial proceeding of an adversarial kind, define what the court is to decide.
The reason why I say that that has relevance to this consideration, even given the context that your Honour has indicated about the delay, is that
when there is a fair understanding of the process that was undertaken by both counsel for the appellant and by the Court of Criminal Appeal itself, there was an understanding that the only issues – or there should have been an understanding that the only issues that were left to determine were the issue of the resentence. The concession made by the respondent, as we have indicated, is the fact that at the final hurdle parties were not allowed to make submissions on that basis.
But even when one looks at what occurred on 19 June 2019, counsel for the appellant got to their feet to make a query as to whether the court had taken into account those matters on resentence. It was not a query as to whether or not the court should or indeed did properly assess the exercise of the residual discretion based on the information now before it.
In circumstances where following an express disavowal, the Court of Criminal Appeal continued to act under the understanding that on 2 August it had handed down its decision and that on 19 June it was entitled to proceed to hand that decision down, there must be some caution before I suppose being critical of the Court of Criminal Appeal when at no point in this process was the residual discretion ever raised.
BELL J: I think you have made that point a number of times.
MR NATHAN: Yes, apologies, your Honour. Really that is probably a fair point to finalise the respondent’s submissions unless there are matters in particular. Thank you, your Honours.
BELL J: Thank you, Mr Nathan. Anything in reply, Ms Shaw? Ms Shaw, can I interrupt you for a moment? We do not – or certainly in this Court I am not hearing any audio. I do not know whether Justices Gageler and Nettle can hear you, but I cannot.
GAGELER J: I cannot.
NETTLE J: I cannot.
MS SHAW: Can your Honours hear me now?
NETTLE J: Yes, thank you.
BELL J: Yes, thank you, Ms Shaw.
MS SHAW: Thank you. That was our fault at this end, your Honours. I apologise.
BELL J: Not at all.
MS SHAW: Only one point in reply to raise. Counsel for the respondent asserted that the Northern Territory Court of Criminal Appeal has power on a Crown appeal to allow the respondent to the Crown appeal…..in custody…..a rehearing or a resentencing by the Court of Criminal Appeal, but he did not identify any source of that asserted power, nor have we been able to locate one. In any event ‑ ‑ ‑
BELL J: Ms Shaw, I may be mistaken, but I thought Mr Nathan ended up conceding that in the event that the orders of the Court of Criminal Appeal were set aside, there would be no power for this Court to remand the appellant in custody.
MS SHAW: In that case, I have nothing further in reply. Can I just raise one matter, and that is we do not want to pre‑empt what the Court might do, but we do ask if the Court is proposing to reserve its decision in any aspect in view of the Crown concession that it nevertheless make orders today setting aside the orders of the Court of Criminal Appeal because, as we have submitted, the appellant would then be released. If the Court pleases, that is all we wish to say in response.
BELL J: Thank you, Ms Shaw. The Court will adjourn and reconvene at 1 o’clock in order to indicate the course that the Court proposes. Adjourn the Court until 1.00 pm.
AT 12.28 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 1.00 PM:
BELL J: The Court is unanimously of the view that the appeal is to be allowed. The orders of the Court are:
1. Appeal allowed.
2.The orders of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 19 June 2019 are set aside and in lieu thereof it is ordered that the appeal to the Court of Criminal Appeal is dismissed.
Adjourn the Court to 9.30 am tomorrow in Brisbane.
AT 1.01 PM THE MATTER WAS ADJOURNED
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