Dang v The Queen

[2000] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B62 of 1999

B e t w e e n -

HOA DANG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2000, AT 3.32 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear for the applicant.  (instructed by Boe & Callaghan)

MR M.J. BYRNE, QC:   I appear for the respondent, if the Court pleases.  (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the supplement we wish to make by address to our written submissions seeks to concentrate on the matters of tension within the fundamental values of a public sentence with reasons.

GLEESON CJ:   Where do you find the error in the reasons?

MR WALKER:   The reasons contain error because there is no account given in a way which involves comparison with a similar case within an appropriate range of the role of the pre‑existing addiction.

GLEESON CJ:   A lot of drug dealers are addicts.  A lot of them deal to raise the money to fund their addiction.

MR WALKER:   Quite so, and they present a continuum through from those who do it mostly for profit rather than for feeding their addiction to those ‑ ‑ ‑

KIRBY J:   Is your proposition put at 17 in the joint judgment?

MR WALKER:   Yes, your Honour.

KIRBY J:   They record that it “was merely to feed his drug habit” and that was to be distinguished from a non‑addicted drug dealer who is just doing it for the money.

MR WALKER:   Yes.  He should be treated, they said, for the purposes of sentencing, as a street dealer.  That is of course at one end of the continuum.

GLEESON CJ:   Was it your proposition that if a street dealer is also a drug addict, that is a mitigating factor?

MR WALKER:   It is not a mitigating factor simpliciter, your Honour, but it is a factor which first has to be taken into account of and, second, has to be taken into account transparently in a way which reflects a judgment as to the overall criminality.

KIRBY J:   Must or can?

MR WALKER:   Must.  That is why it is a special leave point rather than the kind of sentencing matter which would appropriately end at an intermediate appellate level.

KIRBY J:   Has this been said in any overseas courts?

MR WALKER:   No, your Honour.

KIRBY J:   This is a universal problem.

MR WALKER:   The problem of addiction to illegal drugs such as heroin is of course virtually universal, or at least for comparative cultural purposes it can be treated as such.  Like the different, but somewhat similar, problem of alcohol, it can cause totally different, diametrically opposed, cultural responses from time to time and place to place as to its role in crime and punishment.  In our submission, what is lacking in this country and what, in answer to your Honour the Chief Justice’s question, is lacking in these reasons is an exposition of how the matter should be taken account of rather than simply being added to an already very long and probably indefinite list of, as it were, designated items which, if present in a case, ought to be taken account of.

GLEESON CJ:   Have you looked at the sentencing guideline judgment of the Court of Criminal Appeal of New South Wales in relation to armed robbery?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   That deals with this subject, does it not?

MR WALKER:   It deals with the subject matter of addiction, although not quite precisely in the context of offences of this kind.  As your Honour will have seen, we draw some comfort from the fact that in New South Wales, for the purposes of that exercise, it was considered appropriate to review such variations as can be found not only over time but also from place to place.

GLEESON CJ:   Is that guidelines judgment amongst the materials we have here?

MR WALKER:   It should be, your Honour, yes.

KIRBY J:   Is the case of Henry amongst our materials?

MR WALKER:   Yes, your Honour.

KIRBY J:   Is that a case where that court went back to look at this issue that you are trying to press on us?

MR WALKER:   Yes, your Honour, but it did not look at it in the same way.  That is, in our submission, the inadequacy of the existence in another State of a guideline judgment or the existence in any State, for the purposes of this Court at the apex of the judicature, of a guideline judgment, particularly in New South Wales, bearing in mind its new regime about guideline judgments, is that it does not and cannot tackle the facts of a particular case, in this case those offences which are most intimately involved in criminality by addicts, certainly by no means the only category of offences, but here there is street dealing.

GLEESON CJ:   What are the paragraphs in the Henry Case dealing with drug addiction?

MR WALKER:   My learned friend suggests 171 to 193.  From my recollection that is correct.  Your Honours, my application does not ‑ ‑ ‑

KIRBY J:   Would your thesis work in practice?  A judge has before him or her a person who has an addiction, conviction of a drug‑related offence, what would one do except say, “Well, I take into account that this person is addicted”?  You say some scale would be developed?

MR WALKER:   “Scales”, “tariffs” and “grids” are forbidden words, and we will not utter them in support of the application and we do not have an argument of that kind but, in our submission, at the opposite extreme there is the proposition that all one needs to do is to recite the fact, having found the fact, that you took it into account.

GLEESON CJ:   But do you take it into account in favour of him or against him?

MR WALKER:   If it is an addiction of the kind, that is an addiction where there is no special opprobrium attached to the onset of the addiction – in this case he was addicted before he came as a refugee to Australia in circumstances where, as the comment is made at first instance, during his sentencing hearing made quite clear, he came in social and familial circumstances of considerable trauma.  So that the addiction is not one, your Honour, which in itself in its inception would attract opprobrium.

GLEESON CJ:   But it must depend on the circumstances of the particular offence in the particular case.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   If when I am walking back to my hotel tonight somebody leaps out from behind a bush and belts me over the head and robs my money, I would not be very pleased if somebody said, “Well, that poor chap was a drug addict”.

MR WALKER:   No, but the judge unfortunate enough to do the sentencing in that case would surely take into account the difference between someone who was completely in control of their faculties and had no chemical urge ‑ ‑ ‑

GLEESON CJ:   He might take it into account against him because it might have a bearing on the question of whether he was likely to do it again.

MR WALKER:   Yes.  This is the two‑edged sword, both as to recidivism and as to prospects of rehabilitation, to which several of the judges considering this problem have made reference but, in our submission, it is the very uncertainty of the way in which those matters should be taken into account, noted as uncertainty, noted as unreconciled, but discussed in some depth by the Court of Appeal in Hammond’s Case.

KIRBY J:   That seemed to be your best argument.  The Court of Appeal said that this was a matter where the law had obfuscated the position, had not clarified it.  Is it relevant for us to look at that case?

MR WALKER:   Yes, it is.

KIRBY J:   Is that a cri de coeur to us to have a look at this issue?

MR WALKER:   I will not ascribe to their Honours in Hammond’s Case a cri de coeur.  However, it is clear, with great respect to them, though that is pre‑Henry of course ‑ ‑ ‑

KIRBY J:   That seemed to be your best point where their Honours said that.

MR WALKER:   Yes, and there has been ‑ ‑ ‑

KIRBY J:   Is there anything in the context where they express that view?

MR WALKER:   I think your Honours might have another version of the report.  Could I hand up the authorised report version of that.  I am sorry, your Honour Justice Kirby.  In our submission, the point about Hammond is that, though there is in the Queensland Reports version at the foot of page 199 to the top of page 200 the passage which has been extracted and paraphrased in our written submissions, there is not to any extent which is reflected in actual reasons for the sentencing conclusion a reflection of those matters in Hammond.  As your Honour the Chief Justice has said and as was observed in Hammond, these things are not simple in the sense that they definitely or inevitably cut one way or the other for a particular accused.  But that, in our submission, that it is difficult and that it depends upon all the other circumstances in a particular case, does not dispense the Court from needing to assign reasons for how a factor, accepted on all sides to be relevant, should be taken into account.

GLEESON CJ:   You tell us what you would like us to say.  Let us suppose we said, “We’re minded not only to give you special leave to appeal but to write the draft judgment”.  What would you like the High Court to say about drug addiction?

MR WALKER:   That it is a matter, first, which must be taken into account where the facts suggest that it is of relevance to the reason for the offence having been committed.

KIRBY J:   And that courts will not punish persons as severely who are demonstrated to be addicts as they will if they are no, except for some good reason shown or something like that.  Is that what you are putting?

GLEESON CJ:   Is that right?  So, if a man rapes a woman, the fact that he is a drug addict means that he will not be punished as severely as if he were not a drug addict.

MR WALKER:   No.  That is one of the reasons why, in my initial formulation, drug addiction, rather than being intoxicated, at the time of committing the offence – it is notorious that drug addiction mostly explains property offences rather than offences of violence simpliciter, that is, the violence which is explained by them are robbery offences.

KIRBY J:   Is the heart of the issue or the idea that if a person is in the grip of an addiction, then their criminal conduct is not to be regarded as having the same wilfulness or objectionable character?

MR WALKER:   Yes, your Honour.  In one sense it reflects on the criminality of the act but – and here comes the double edge – in another sense it reflects on the prospects of rehabilitation or the usefulness of, for example, non‑custodial ‑ ‑ ‑

KIRBY J:   And deterrence, both general and specific.

MR WALKER:   Yes.  Deterrence is a separate issue altogether in relation to the addiction question, which is not dealt with in Hammond.

GLEESON CJ:   Take a very common factual situation:  the crime of home invasion.  The occupant of a household is confronted by an intruder armed with a weapon who is there to steal some property.  Is it a mitigating factor in sentencing the intruder that he or she is a drug addict?

MR WALKER:   Probably if the facts are as stark as that, yes, your Honour.  Our submission is that this Court should confront the question whether, all other things being equal, the fact that one is driven to a property offence, accompanied, as in your Honour’s example, by the most reprehensible violence, is a fact which tends to increase, decrease or to have no effect whatever on the criminal ‑ ‑ ‑

GLEESON CJ:   It might just explain how the crime came to be committed.

MR WALKER:   That is the kind of issue, your Honour, in our submission, which needs to be ventilated and not left to ad hoc individual decisions under the rubric that, because sentencing is properly called a discretion, relevant factors have to be taken into account, that one is then dispensed from explaining why a social phenomenon as pervasive and as important to the community respect for criminal justice as drug addiction does not find an explanation in the reasons for judgment as to how it is taken into account.

GLEESON CJ:   On page 18 in paragraph 8 in the first sentence, the Court of Appeal here advanced a proposition:

one of many factors which must be considered in sentencing an offender.

What is wrong with that?

MR WALKER:   That is, in our submission ‑ ‑ ‑

GLEESON CJ:   Sometimes it goes in his favour, sometimes it goes against him, sometimes it is just neutral.

KIRBY J:   You say that is exactly what the Court of Appeal was talking about in Hammond?

MR WALKER:   Yes, and that is said at slightly more length with more elaboration in Hammond and it is no defect ‑ ‑ ‑

CALLINAN J:   But, Mr Walker, in Hammond they are really saying that it may very well be undesirable to attempt to spell it out.  Do you say there is anything wrong with this statement from Hammond at page 200 at about line 12:

Depending on the circumstances of the particular case this may sometimes show the offender to be less deserving of condemnation than the primary facts, without more, might suggest.

Can you really do anything different from that?  Can a court do anything different from ‑ ‑ ‑

MR WALKER:   Yes, it can.  That is, those are general statements which have been made.  What is clear from the way in which the Court of Appeal approached this case, particularly in its use by, we say, an erroneous comparison with Lamb’s Case to which we have referred the Court, what they have shown is that the matter has advanced no further than noting:  (a) the necessity to consider it; (b) the abstract possibility, shorn of particular cases of it cutting one way or the other; and then (c) simply leaving the reasons at the position we have in our case, Dang’s Case, where no account is given of how it is taken into account in the particular case.

KIRBY J:   Hammond really gives no guidance to trial judges, sentencing judges really.  It just says – this case similarly – in some cases it will, some cases it will not.  It is all hidden away there in the general sentence.  It may be in the end that nothing more could be done, but your point, I suppose, is the Court of Appeal has said that it has not been clearly explained, that it is a common problem and that on that basis this Court should look at it.

MR WALKER:   Yes.  It may well be that it will turn out on a full investigation, that is, by a court seized of a real case rather than an abstract guideline and looking at the kind of comparisons which are pressed upon courts of appeal, intermediate courts of appeal, with tendentious descriptions of the appropriate range, tendentious by altering the categories of offence or offender in ways which have appellant and respondent in different camps ‑ ‑ ‑

GLEESON CJ:   Here is a real case.  We have the circumstances of a man who was a major drug dealer.  You say he is a drug addict.  You tell us in this case how you would want the High Court to say that circumstance should have been taken into account in sentencing him?

MR WALKER:   If your Honour is referring to this case, the Court of Appeal does not find that he is a major dealer.

GLEESON CJ:   Suppose you have a case where a man is a major drug dealer.  That is a practical case.

MR WALKER:   In that case, your Honour, it would be fairly clear that he would not fit the very discrete category said by the courts, including this Court, to be numerous, that is, the Court of Appeal to be numerous, namely, people who deal in order to feed just their addiction rather than also to provide what, in Lamb’s Case, was apparently called artlessly by counsel “lifestyle”, be it cars or trips.

GLEESON CJ:   You do not want us to lay down a general principle about drug addiction.  You want us to limit it to the facts and circumstances of a case like this?

MR WALKER:   Your Honour, we want a general approach to the way in which courts, but particularly courts of intermediate appeal, should explain the account which is being taken of matters which are so special and important as drug addiction in offences which are explained by the addiction, as in an addict dealing at street level not for profit but in order to feed the addiction, as opposed to the major dealer to which your Honour has referred.

KIRBY J:   It has to be relevant to the addiction.  That is the point.

MR WALKER:   The cases already suggest that the latter category is not a category where addiction explains the offence.

KIRBY J:   The Crown suggests – and I have not read Henry – that all of this was gone into by the New South Wales Court of Criminal Appeal.  Is that so or not?

MR WALKER:   A great deal has been gone into but not at all.  I am sure the Crown will not suggest that it has been gone into for the purposes of the common case of the petty burglary or the street dealing which is at a level and for the purposes of feeding the personal addiction.

GLEESON CJ:   They did it for cases of armed robbery.  People commit armed robbery with sticks sometimes.

MR WALKER:   Yes, your Honour.  I am not suggesting armed robbery does not have relevantly much less serious cases than the cases of shotguns in banks.

GLEESON CJ:   Having gone through it carefully in relation to armed robbery, what did the Court of Appeal come up with that was relevantly different from what was said in the present case?

MR WALKER:   Nothing really was said in the present case, your Honour.  That is the first thing.  So, in our submission, because Henry is not authority

in Queensland, it is not correct to say that Henry solves the problem which was thrown up by this case or which is the one that we seek to put before this Court.

GLEESON CJ:   What assistance would you have got from Henry?

MR WALKER:   Henry provides dubious assistance for the proposition which we would want to put.  Henry certainly provides a great deal of support, thus the extracts from it in our written submissions, for the proposition that addiction must be taken into account and, in particular, the individual circumstances by which addiction could be seen, to adopt your Honour the Chief Justice’s language, as an explanation for the crime because that may reflect on criminality, rehabilitation, and thus for transparent and explicit reasons – and that is our edition – ought to be taken account of.  Henry does not - does not ‑ ‑ ‑

GLEESON CJ:   Henry quoted with approval the passage in Hammond that said, “Just how these factors are to be applied to particular cases had not been spelled out and it may be undesirable to attempt to do so”.

MR WALKER:   Yes.  In our submission, it is inappropriate for this Court to leave that matter where it lies by the relatively tentative statement by the Court of Appeal in Hammond adopted by the Bench in Henry.  In our submission, spelling matters out in what might be called a pro‑Christian manner is no part of our application and ought to be no part of any appellate court’s approach to these matters.  But there is a world of difference between a grid on the one hand and, on the other hand, the incantation approach by which a relevant matter is referred to as relevant but the way in which it has been taken account of varies from black to white with indeterminate greys in between.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Byrne.

MR BYRNE:   If your Honours please.  The point sought to be agitated on this appeal in the Court of Appeal is to be found at page 18 of the application book, the last sentence of paragraph 8, where the court answered it in this way:

It cannot be said, as the applicant submitted it could, that, invariably, the sentencing range for addict offenders is lower than that for non‑addict offenders.

The proposition is not put that much differently by my learned friend today.  He uses the word that it “must” be a factor to be taken into account.

KIRBY J:   If addiction is relevant to the crime.  I took him to have a rider on that, that if it is simply to feed an expensive lifestyle, then it is a different thing than if it is in order to feed a crime.  You do a tremendous lot of criminal matters and you come before the Court often.  My understanding is that something like 60 or 70 per cent of people in Australian prisons are people who have some form of drug addiction, is that ‑ ‑ ‑

MR BYRNE:   That may well be so, your Honour, yes.

KIRBY J:   If that is so, whether or not this Court can do much about the matter better than Hammond and this case, is it not a matter of some general significance for sentencing if so many people in our prisons – that does not account for non‑custodial sentences – are people who are affected by the issue to be raised?

MR BYRNE:   There are two answers to that, in my respectful submission, your Honour.  The first is the specific one as to whether this case is a proper vehicle for this Court to consider it.  I will deal with that shortly.  The second is whether, as was recognised by the Court of Appeal in this case, that where there are a number of competing factors, one cannot really put things into pigeonholes such that even where there is an addicted offender carrying out crimes solely to feed his addiction - and that was not seemingly the case here – then one should not ipso facto give a lower tariff or a lower sentence in those circumstances.

CALLINAN J:   There are not too many addicts holding down jobs to support themselves and feed themselves, so it is usually not dealing simply to feed the addiction.

KIRBY J:   I wonder if that is correct.  I do not know that that is ‑ ‑ ‑

GLEESON CJ:   Suppose a man in a senior executive position of responsibility, being addicted to cocaine, embezzles money in order to keep up his supplies of cocaine, is the fact of his addiction a mitigating factor?

MR BYRNE:   In my submission, not.  That is why one cannot use the pigeonhole approach.  As the Court of Appeal said, in our submission correctly here, at the bottom of page 17, last paragraph:

It is correct, as the applicant submits, that a distinction is made in sentencing drug dealers, between an addict who deals merely to feed his or her own addiction and one who is not an addict but who deals solely for profit; and that that distinction will tend towards a lower sentence for those in the first category than for those in the second.

However, the court goes on to make two points.  The first is that:

the offenders may not readily fit into one category or the other –

Secondly:

this distinction is no more than one of many factors which must be considered –

as relevant to the sentence.

GLEESON CJ:   What is that Victorian case on sentencing which talks about the process or the necessity of synthesising different considerations?

MR BYRNE:   That is the two-step process?

GLEESON CJ:   The Victorian case that rejected the notion that you approach sentencing on the basis of slotting in particular factors and giving an increase for this and a decrease for that.

MR BYRNE:   I cannot give your Honour the name of the case but I am aware of it.

KIRBY J:   But is that not itself an important question?  If one does not have some structured way of approaching the matter, then you are left with uncontrolled discretion, which is contrary to the rule of law.  I mean, you cannot get down to precision in sentencing but you can at least structure the process, otherwise we are just saying, “Over to you.  It’s completely uncontrolled.  It’s up to you”, unless you so offend that an appellate court will intervene.

MR BYRNE:   Not where, as in the case here, the Court of Appeal recognises that it is a factor, but what the next step is ‑ ‑ ‑

KIRBY J:   So your answer to the Chief Justice earlier was wrong.  I could understand a submission that a person who was addicted to cocaine would be treated in a different and more lenient way than a person who simply wanted to get a third or fourth Mercedes or to buy goods for greed and for their own advancement.  If people are addicted, they have an imperative which is a sort of illness and that, it would seem to me at least, depending on the evidence, to be a matter that you would take into account in mitigation.

MR BYRNE:   That was the focus of my answer.  That by itself could not necessarily and should not necessarily lead to a lower sentence.  That proposition which your Honour the Chief Justice has put to me from Victoria seems to be in accord with your Honour’s own reasons in Engert, which I have extracted in the written outline, where your Honour said in the New South Wales Court of Appeal:

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.  In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

Here, to go back to the proposition put to me earlier by your Honour Justice Kirby, the circumstances here provide that the person was not simply an addict who was caught dealing.  He was a person who was on a suspended sentence for drugs.  He was arrested in respect to a further offence relating to drugs.

KIRBY J:   But the problem of addiction can be – I am not saying it was in his case, but it can be that people get into the routine and they find it very hard to get out of it.

MR BYRNE:   I do not quibble with that, but one cannot therefore simply have automatic consequences by the fact that he is an addict.  One has to weigh or counterbalance against that, as it was put in the Court of Appeal, the other circumstances which include his continued dealing or trafficking whilst subject to a suspended sentence and a bail order.

KIRBY J:   But that is a pretty dispiriting statement by the Court of Appeal, an experienced court in Hammond – and it was an experienced court – said that the true relevance has never been adequately explained.  If that is so and if the way in which one approaches the problem is in a sense hidden away in the discretion, is it not time, given the size of the problem and the number of people before the courts who are affected, for this Court to attempt to do something better?

MR BYRNE:   In Hammond the court went on – and this is a passage extracted in paragraph 191 of the judgment in Henry – this passage is extracted from the judgment in Hammond:

Addiction to drugs at the time of the offence is not an excuse but may tell the court that the primary weakness of character is that of an addict rather than that of a robber.  Such a factor tends to be mentioned along with an unfortunate family life as an explanation –

So my answer to your Honour’s question is that it is difficult for courts to go further than that rather than saying, “All right, it’s not an excuse”, and that is the conclusion reached after analysis in ‑ ‑ ‑

CALLINAN J:   It does not have any fixed true relevance because its relevance depends upon the case and the circumstances of the case.

MR BYRNE:   Quite so.  It is something which forms a necessary part of the background or matrix of all the circumstances but it should not, in my respectful submission, be elevated to something which has automatic consequences.  That is really the proposition which, as I understand it, is being put to this Court this afternoon.

KIRBY J:   Not automatic.  At least as I understood the proposition, it was that if you have a person who is an addict and if addiction is relevant to the offence, then in judging the societal response to that addiction in the form of a sentence, it is highly relevant to take into account the addiction.  The criminal law is posited on wilfulness and, if you do not have the same quality of wilfulness, you do not have the same reasons for punishment.  You still have reasons for punishment but not the same.

MR BYRNE:   To take up your Honour’s point, one can ask:  what further could be said than what was said in paragraph 194 in Henry by the Chief Justice, where his Honour said this:

The authorities are against the proposition that drug addiction should, of itself, be accepted as a mitigating factor.  There is authority that where the original addiction was not a willed act, that may be taken into account by way of mitigation.  The authority does not go beyond that.

I think, with respect, that seems to be a proper answer to your Honour’s proposition.  It is a factor that goes that far by way of explanation but it cannot go, or should not go, to the next step of being an automatic ‑ ‑ ‑

KIRBY J:   I wonder about that proposition because many people, at least as one reads the literature, stumble into drug addiction accidentally and it is not a wilful act; it is often not a wicked act.

CALLINAN J:   But the Court of Appeal do not put that qualification upon it, either in Hammond or in this case, that a different consequence flows depending upon whether it is a willed or an unwilled act.

MR BYRNE:   Perhaps a reason for that is that the material was not put before the Court of Appeal.  There was a criminal history ‑ ‑ ‑

CALLINAN J:   No, but what I am suggesting to you, with respect, is that perhaps it is not confined as a mitigating factor to unwilled addiction in the first place, that on the reasoning in Hammond and here, even a willed addiction might result in an approach of mitigation which ‑ ‑ ‑

MR BYRNE:   We say no, your Honour.  We say in Hammond and in Henry they rule out the possibility of it being a mitigating factor.  It may be an explanation but that is as far as it seems to go.

KIRBY J:   I think Justice Callinan is throwing you a lifeline and saying that the New South Wales guideline is too narrow and that in Queensland you have a broader principle which just says, “Throw it all in there.  It’s all in the bucket” – uncontrolled discretion.

CALLINAN J:   That is how it seems to me, Mr Byrne.  It is a factor that may tell the court the real weakness of character is that of a drug addict in the passage that you read.  That may be by no means inconsequential.  That does not say anything about willed acts or otherwise.

MR BYRNE:   No, that is a concept which was not gone into in this court ‑ in this appeal.

CALLINAN J:   And it is a qualification that does not seem to exist in Queensland.

MR BYRNE:   It is certainly not apparent on the authorities, your Honour, no.

GLEESON CJ:   The relevance of addiction might be, amongst other possibilities, that it means that the criminal act is part of an ongoing course of conduct that is likely to be repeated.  The relevance of the fact that a person who leaps out from behind the bushes and steals somebody’s purse is a drug addict might be, amongst other things, that he will do it every day in the week if he gets the opportunity.

MR BYRNE:   Certainly the factor of rehabilitation was one of the considerations addressed in the judgment before your Honours and in the particular circumstances here there was an unfavourable prognosis from a psychologist in respect to the rehabilitation, that is drug rehabilitation, of this applicant.  That was a factor taken into account.  One of the reasons why the other matter raised by your Honour Justice Callinan may not have been gone into in the reasons here was that it simply was not raised.  Their Honours go through the fact that there were a number of offences ‑ ‑ ‑

CALLINAN J:   All I am saying, Mr Byrne – there is no need to deal with it any further – is the fact that the addiction may have stemmed from a

willed act may not necessarily, on the Queensland authorities, exclude consideration of it in all cases as a mitigating factor.

MR BYRNE:   Yes, I accept that.

KIRBY J:   They may not have been raised here, but if special leave were granted, then presumably we would be given the assistance of how this has been dealt with in all States of Australia where it is a common problem and in overseas jurisdictions of similar societies.  I have no doubt you would help us greatly, Mr Byrne, as you always do.

MR BYRNE:   Thank you, your Honour.  May I just go back to the point which I mentioned before, whether this is the vehicle for anyone to give your Honours assistance in that regard.  Here on page 19 of the record the joint judgment sets out a potted history of the convictions of the applicant.  Your Honours will see that that history goes back to 1983 and continues up to 1996.  At the sentence at about line 30 on that page this is said:

No attempt was made to prove that the commission of those earlier offences was caused or contributed to by his heroin addiction.

The difficulty in exploring that area in this case therefore is that it is difficult, on that factual background, to make out the proposition which my learned friend raised briefly before, that there may have been this unwilled or induced addiction because of personal circumstances in his travel from Vietnam to Australia.

KIRBY J:   But it looks like a very typical case of addiction leading to recurring serial offences.

MR BYRNE:   Yes, but there certainly does not seem to be any finite or definite material going to the origin of that addiction.  Unless there is something further, those are our submissions.

GLEESON CJ:   Thank you, Mr Byrne.  Yes, Mr Walker.

MR WALKER:   Your Honours, consistency in sentencing is not merely a matter of an intellectually satisfying scheme of precedents in a court’s record.  It is also a cardinal factor by which explanation of criminal justice, particularly the exercise of sentencing discretions in individual circumstances, can command community respect.  In our submission, in matters as topical, as pervasive and, according to perception, as dangerous as the effect of heroin addiction on crime rate, particularly the kind of crime referred to in this case which is one which perpetuates addiction in others, then, in our submission, there is a premium to be placed upon transparency and explanation in how the product of the vice itself, namely addiction, is to be approached as a relevant factor which everybody seems to consider it ought to be counted, namely a relevant factor, in offences which owe their causation in some material way to the fact of addiction.  This is a case which is an ideal vehicle for that attribute of the problem, because this is ‑ ‑ ‑

KIRBY J:   What do you say to Mr Byrne’s point that you did not, as it were, prove all the previous offences?

MR WALKER:   Your Honour, that sentence at the end of paragraph 9 is almost unaccountable, bearing in mind that the second offence is importing heroin and the 1996 possession happens to be, as the record shows elsewhere, heroin.  To say that there is no causal or contributory ‑ ‑ ‑

KIRBY J:   You say if you have the established addiction now, then looking at that record it is the typical record of a person addicted to heroin.

MR WALKER:   Yes, and the very next sentence, the beginning of paragraph 10, shows that he was a heroin addict before coming to Australia, which is before all of these offences.  So be it accepted there was a gap in explicit causal links, the inference, in our submission, is overwhelming for at least two of those offences and, given that the others are property offences, it would not, in our submission, in any way disqualify this case as a suitable vehicle.  In any event, he has not been sentenced for the previous offences for which he had already been sentenced.  The sentencing issue in this case of course will take into account his previous criminal history.  That would be properly included whether it was affected by addiction or not. 

Concentrating on this particular sentence in this case, the addiction is plainly put right to the forefront at the foot of page 7 of the reasons, for example, as a matter which makes this case, in our submission, an ideal vehicle to test the proposition whether, as a matter of what the intermediate appellate courts and thus, under their guidance, trial courts should be doing, this Court should say something more than the fact that the matter is a relevant one which could cut both ways because, in our submission, the difficulty with that is that it leaves either the ritual invocation of relevance as the only giving of account by the courts as to how it has been taken into account, which is unsatisfactory, or, perhaps worse, it enables individual judges to choose whether it increases or decreases the criminality in the synthesising approach overall to be given one global figure.  In our submission, that is a charter for idiosyncrasy which this Court can and should move to arrest.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 4.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.12 PM:

GLEESON CJ:   By majority the Court is of the view that the application for special leave to appeal should be refused.  The majority take the view that this is a case in which there are insufficient prospects of success of an appeal to warrant a grant of special leave and that the case is not a suitable vehicle to agitate the question of principle which the applicant seeks to agitate. 

We will adjourn to reconstitute.

AT 4.13 PM THE MATTER WAS CONCLUDED