Dezylva v The Queen

[1989] HCATrans 7

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Mll of 1988

B e t w e e n -

ERROL DEXTER DEZYLVA

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

Dezylva

BRENNAN J

TOOHEY J ;~	DAWSON J -
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 FEBRUARY 198~ AT 2. 17 PM

Copyright in the High Court of Australia

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MR R. RICHTER, QC:  May it please the Court, I appear with my

learned friend, MR J.P. LECKIE, for the applicant.

(instructed by Alex Lewenberg & Associates)

MR L.W. FLANAGAN, QC: May it please the Court, I appear

with my learned friend, MR G.J.C. SILBERT, for
the respondents. (instructed by the Director

of Public Prosecutions)

MASON CJ:  Yes, Mr Richter.

MR RICHTER: If the Court pleases, this is an application

for special leave to appeal against a decision

of the Court of Criminal Appeal in Victoria delivered

on 26 February 1988. There was also a judgment

which was described as a supplemental judgment

delivered on 2 June 1988 varying the sentences

to a further extent.

The Court of Criminal Appeal in part allowed

an appeal against sentence imposed in the county

court of Melbourne on 28 August 1987.

MASON CJ:	Do you have an outline of argument?
MR RICHTER:	I do, and I would seek to hand that up to the Court.
MASON CJ:	Thank you.
MR RICHTER:	If the Court pleases, at the outset might

we announce that we are not pursuing ground (b)

of the application, and that is one that deals

with the question of aggravating the sentence
by reason of the applicant being on bail at the

time. That is being abandoned and we have given

notice to our learned friends. The grounds are

to be found at page 88 of the appeal book and

ground (b) is not being pursued.

If the Court pleases, the facts are particularly

complex in this application in the sense that

there were a large number of charges - counts -

before the county court - the sentencing court -

arising out of three State presentments and two

Commonwealth indictments all of which dealt with

drug offences.

(Continued on page 3)

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Dezylva

MR RICHTER (continuing):  So that whilst the facts are

complex in their interrelationship through the

presentments and indictments the point that is

being sought to be raised for special leave

is a fairly simple one and essentially, we would

submit, goes to the conduct of all sentence appeals
in the Court of Criminal Appeal in Victoria and

since section 568(4) of the CRIMES ACT of Victoria

is, in fact, in common form with other jurisdictions

in Australia it has relevance to the basis upon

which the Court of Criminal Appeal acts when

setting aside a sentence.

As I have indicated, the Court of Criminal

Appeal in part allowed the appeal. The end

result that was achieved, or sought to be achieved,

after the supplemental judgment in June 1988,

in fact, maintained the original aggregate sentence

which had been imposed in the county court. The

original aggregate sentence by aggregating the State sentences and the Commonwealth sentences was 16 years with the minimum of 13 years before

eligibility for parole. There was also, at first

instance, an order that the applicant not be

eligible for any early release.

The Court of Criminal Appeal on 26 February

when allowing the appeal in part quashed the order

disentitling the applicant from early release on

the basis that it was not a case where that was warranted, that there -was error, :1.nd resentenced the applicant on what was termed the second Commonwealth
indictment upon which the applicant was originally
sentenced to a term of 10 years with the minimum
of six before eligibility for parole. The Court
of Criminal Appeal quashed that sentence and resentenced
him to a term of four years with a minimum of three
not on any basis other than one of seeking to tailor

the overall sentence so that it would remain at the

level of 16 years with the minimum of 13 because

the Court of Criminal Appeal had found that the 16

with the 13 was not manifestly excessive in the

re~vant aense and was, therefore, not inclined

to interfere with the overall sentence, the ground not having been made out. The ground then claimed

was one of manifest excess.

(Continued on page 4)

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Dezylva

MR RICHTER (continuing): I said that the basis upon which

the 10 years with a minimum of six, that sentence,

was quashed in the second Commonwealth indictment
was that the effect of what the primary sentencing judge had done was to create a partial concurrency between the Commonwealth sentences on the two

Commonwealth indictments and the aggregate of

the State sentences on the three State presentments
and the Court of Criminal Appeal ruled that

as it had, in a previous case of RUMPF which

is referred to in our list of authorities, that

section 19 of the Commonwealth CRIMES ACT did

not permit the sentencing for federal offences

to be partially concurrent with sentences at

the same time imposed for State offences. In

other words there had to be either total concurrency

or none at all.

So that it was on that basis that the Court

of Criminal Appeal did quash the sentence of

10 years with a minimum of six, resentence

to four years with a minimum of three and made

that fully concurrent with the sentences imposed

on the first Commonwealth indictment which totalled

six years with the minimum of four, in fact,

and cumulative upon the aggregate of the State

sentences which came to 12 years with the minimum

of 10.

It was done solely on the basis of tailoring

the sentence to retain the aggregate of 16 with the 13 but by doing what the Court of Criminal

Appeal did, by ordering full concurrency

with the first Commonwealth indictment and not

quashing the sentence on the first Commonwealth

indictment, the net result, in fact, ended up

being an aggregate sentence of 18 years with
the minimum of 14 because the court not having

interferred with the six with the four on the

first Commonwealth indictment it remained and

according to the tenor of the court's ruling

wduld be fully cumulative upon the State charges.

S~ that, notwithstanding that the varied sentence,

the one that went down to four with the three,

would run concurrently with the six with the

four on the first Commonwealth indictment, the
six with the four would aggregate on top of

the 12 with the 10, giving in fact 18 with a

minimum of 14.

(Continuing on page 5)

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Dezylva

MR RICHTER (continuing): That was sought to be corrected on

the second occasion by the supplemental judgment and
that is the judgment delivered on 2 June 1988 and what

the court there did was to reduce the minimum sentence
on the first Commonwealth indictment to three years,
thereby leaving a notional total of Commonwealth sentences

of six years with the minimum of three on the Commonwealth

counts and it ordered that the Commonwealth sentences

commence at the expiration of the minimum sentence on

the State counts, namely at the expiration of the 10 years.

And if that was right, that would then aggregate, in

effect, to a total of 16 years with a minimum of 13. In doing that what the Full Court in fact did was to

reintroduce the vice that it had earlier sought to cure

in the first hearing, namely that by backdating, or
rather by providing the date for the commencement of the

Commonwealth sentence, it had in fact reintroduced the

motion that there was partial concurrency between

State and Commonwealth offences because they would overlap by two years,in fact.

Now the point which it is submitted is a point of

special leave is this: it arises from the practice of

the Full Court in Victoria on sentence appeals, and this
is a matter of agreement having been discussed with
learned counsel for the respondent, that in an appeal as
to sentence in the Victorian Court of Criminal Appeal,
and indeed we believe that in other jurisdictions in
Australia, the appeal whether for excess or for inadequacy
proceeds basically on the basis that first of all the
applicant argues either that there is specific error in

the sentencing remarks or the sentencing process - a

specific identifiable error, or that there is fai111re in

discretion in failing to take into account a relevant

matter or in taking into account en irrelevant matter,
those being identifiable errors, or that there is a

manifest excess or a manifest inadequacy in the sentence

or a combination of all those matters.

The second stage is that the court then delivers

judgment, either dismissing the application or quashing
the sentence and resentencing.	-:,~

(Continued on page 6)

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Dezylva

MR RICHTER (continuing):  But if the Court decides to quash the

sentence there are no submissions and there is no

scope for submissions and there is no opportunity

for submission to argue what the proper sentence ought

to be. So that, in a sense, what is being complained

of in this appeal can be seen as an offshoot of a case

decided quite recently in this Court, which is on our

list of authorities, of HUNTER V REG. HUNTER V REG is

reported and referred in our list of authorities.

MASON CJ:	Yes, what is the reference to it?
MR RICHTER:	I am terribly sorry, Your Honours.
MASON CJ:	Yes, as Justice Dawson was about to point out to you,
we do not have the list of authorities. That is given
to our staff, so that the authorities can be brought
into Court.

MR RICHTER:  I am terribly sorry, Your Honour. HUNTER V REG

involved the situation in which the applicant had been
convicted of murder at first instance and was sentenced

accordingly. He appealed against his conviction to the

Court of Criminal Appeal. It is at page 423 of the

volume, if your Honours please. The Court of

Criminal Appeal quashed his conviction; substituted

a conviction for manslaughter and sentenced him to

20 years. He sought special leave to appeal to this

Court and was granted it and indeed succeeded on his
appeal on the basis that he had never had an opportunity -

or his counsel had never had an opportunity of

addressing the Court on what his sentence ought to be.

Now, in HUNTER, of course, there had never been any

discussion of sentence at all, at any stage or at any

level and the upshot of it was that the case was

remitted to the original trial judge for sentencing so

that he could properly carry out his sentencing

functions. In the present case, of course, submissions

as to sentence were made to the primary judge and indeed

submissions relating to sentence were made to the Court

of ·Criminal Appeal. But what we contend is this: that

uppn an application for leave to appeal against sentence

in the Court of Criminal Appeal, the argument is directed

at demonstrating a miscarriage of the sentencing

discretion; it is not directed and, indeed, it would be

improper to direct it, in terms of urging the tribunal

that a particular sentence or a particular type of

sentence is appropriate in the case.

(Continued on page 7)

C2T32/l/VH	6	7/2/89
Dezylva

MR RICHTER (continuing):  So that to that extent whenever

the Court of Criminal Appeal hears an appeal
against sentence if it decides to quash the
the sentence imposed it is never in the position
of having full and proper submissions made

to it as to what it ought to do when exercising

its then sentencing jurisdiction and its then

discretion in fixing sentence.

BRENNAN J: Is that the correct way to look at it, though,

or is the application to the Full Court an

application to set aside the sentence which

has been imposed and the ground of the application

that is frequently assigned is that it is

excessive, or there has been some miscarriage?

MR RICHTER:  Yes, Your Honour.

BRENNAN J: Well then, does it not become incumbent upon the applicant to the Full Court to demonstrate not simply that there has been an error, but an

error which justifies the setting aside of the

order?

MR RICHTER:  That is a matter for fine adjustment in

this sense, Your Honour, because when an

applicant argues in the Full Court that a

sentence is manifestly excessive, what he

must demonstrate is that it is manifestly

excessive, not just arguably so, not just

marginally so, and that is what the argument

is directed to and one frequently comes across

a judgment in which the Full Court would say,

"Of course, that is not a sentence that we would

have imposed at first instance butit is within
the bounds, as it were, and is therefore not
manifestly excessive." So that such submissions
as are made on sentence are made to persuade the

tribunal that the sentence is manifestly excessive,

not just demonstrably so.	If one can take an
example: if a submission is made of manifest

excess, or indeed it applies the other way, manifest

inadequacy, if the court is persuaded that the

sentence is manifestly excessive and sets it aside,
it then exercises an original discretion in

fixing a sentence and that sentence may va~y within

quite broad parameters. But submissions are not

addressed to the court as to what its sentence

ought to be because its decision to set aside the

sentence takes place in the same judgment as the

one in which it then proceeds to fix the sentence

that it considers appropriate.

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Dezylva

MR RICHTER (continuing):  So that an argument might proceed on

the basis - or rather an applicant might have the

view that a sentence of 16 years is too great by,

manifest as to require interference on the basis of manifest excess, but if there is also some technical defect in the sentencing, as we submit there existed

for exampl~two years, or something of that description,

as might be said in this case - or by four years.

in this case, and the sentence has to be quashed
because of the technical defect, in our submission,
counsel then ought to have the opportunity of making

submissions as to what the appropriate sentence is

quite apart from the notion of manifest excess.

BRENNAN J:  But why does the sentence have to be quashed

because of a technical defect? Why is it not that the applicant must show first, the technical defect

and second, that it is one which necessitates the

quashing of the sentence?

MR RICHTER:	That is undoubtedly the case.
BRENNAN J:	In the second of those propositions must he not address the question of what the proper sentence is
to show that it is something different from that
which was imposed?

MR RICHTER:  I am terribly sorry, Your Honour. The second

proposition being that -

BRENNAN J:  That the error thus demonstrated demands the

setting aside of a sentence which has been imposed.

MR RICHTER:  Indeed,because otherwise the proviso might apply

to save the sentence and there would be no need to

resentence.

BRENNAN J:  Does not the applicant have to show what the

sentence ought to be before he can establish his

entitlement to have the sentence set aside? (Continued on page 9)

C2T34/1/BR	8	7/2/89
Dezylva

MR RICHTER:  No, sir, with respect, once the defect is

established it is rather for the oth~r side to

show that there has been no substantial miscarriage,

if it is a defect that goes to the actual
imposition of the sentence. If, for example,
there is a sentence imposed which is beyond
the maximum permissible he does not have to show

anything, all he has to do is to demonstrate the

error to show that. Likewise, in the present

case where the error was one of giving partial

concurrency with the State sentences,that sentence

had to be quashed without a demonstration that

it is necessary to do so because - - -

DAWSON J:  Well, if it is part of the argument the next

part of the argument is, and that being so you
have to resentence and that the sentence which is

already there is inappropriate. There is every opportunity to put that argument, whether it was put or not is another question.

MR RICHTER:	Well, there is not, in our respectful submission.
DAWSON J:	Why not?
MR RICHTER:	Because there is not a splitting, as it were,

of the appellate process.

DAWSON J:  You do not have to, you put it in the original

argument?

MR RICHTER:  Well, we would submit, that in the original

argument it would not go unless the court inquired

of it, unless the court gave an indication that

it was about to quash the sentence or was going

to quash the sentence, and this goes to the root

of what, in our submission, is a special leave

point, that there ought to be a splitting, in effect,

upon sentence appeals in cases where there is to be

a quashing, where the sentence is to be quashed,

to lnvite argument as to what the sentence, the

new sentence ought to be.

DAWSON J:  But you would not have been stopped. I do not

know whether it was you, Mr Richter, but whoever

it was would not have been stopped if they had

gone on to that second stage?

(Continued on page 10)

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Dezylva

MR RICHTER:  Well. it may not have been stooped but it is

apparent from the jud:sment, in our respectful submission,

that what was being addressed to the Court was

argument designed to lead to the quashing of
the sentence and that that is what necessarily

happens in appeal sentences. That is what generally

happens.

DAWSON J: That is just what I am questioning. That it

is something which necessarily happens.

MR RICHTER:  Well, if it does not necessarily happen then,

in our respectful submission, this Court ought
to provide guidance as to whether and when it

should happen and there is no such guidance

currently, as we read the authorities. There

is no guidance on the principle and it produces

a series of cases of which this is one, in our

submission, where miscarriages do occur. The

reason we say in this case that it produced that

result is that one of the sentences was quashed;

the other Commonwealth sentence ought to have

been quashed but was not and was subsequently

quashed and varied because, in the supplemental

judgment, it was realized that by leaving it

stand it provided an overall solution that was

not the one that the primary judge or the Court

of Criminal Appeal decided to maintain.

Once the sentence is quashed the original

sentencing discretion revives, as it were, and

all the matters that are fit to be considered

and ought to be considered by the primary judge

revive and come into play.

DAWSON J:  I just do not see it, I am afraid, as a two-stage

process. You are asking the Court to quash the sentence and to substitute a different sentence

and you should put argument on both those things,

if you want to. It is not like HUNTER's case

where there never was an appeal against sentence

so there never was an opportunity to address

$'gument to that question.

(Continued on page 11)

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Dezylva

MR RICHTER:  There was never submission on sentence, indeed,

but, in our respectful - - -

DAWSON J: That was appeal against conviction.

MR RICHTER:  That is so, Your Honour. But the part of

section 568(4) which requires the Court of Criminal

Appeal to pass such other sentence as it thinks

ought to have been passed or made, that is a

matter which is not really directed to submissions

to be made by counsel but rather to the view

that the court then takes. The quashing occurs

upon the persuasion of the Full Court that a

miscarriage occured in the sentencing process

either by an actual demonstration of error in

the sentencing discretion or by a demonstration

that the sentence is manifestly excessive.

BRENNAN J: That does not correspond, does it, Mr Richter,

with the conditions specified in 568(4)? The

condition of the court's jurisdiction is if.

it thinks that a different sentence should have

been passed or a different order made.

MR RICHTER:	Yes, indeed, Your Honour, but the way that in practice that is construed --and on our list
of authorities we refer to the case .of WILLISCROFT
from which I will read some passages to the
Court, the way that is construed is that appeals do not, in fact, proceed in terms of trying to persuade the court that a different sentence should have been passed but rather trying to persuade the court that the sentencing discretion
miscarried.
BRENNAN J:	Whatever might be the practice, is it possible

to spell out of 568(4) a jurisdiction to interfere
with the order of the sentencing court except

upon the conditions specified in the statute?

(Continuing on page 12)

':,;~

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Dezylva

BRENNAN J (continuing):  How can you find a jurisdiction to

interfere, except under statute?

MR RICHTER:	You cannot, with respect.
BRENNAN J:	Well, the statute provides its own conditions, does

it not?

MR RICHTER: It does indeed, but the way it is construed, in our

respectful submission, is in that sense to restrict it

so that the practice which exists, deriving, as it

does, from a line of authority and being very clearly

referred to in WILLISCROFT's case -the practice, in

fact, creates the problem and it is because of that that,

in our respectful submission, special leave ought to

be granted. WILLISCROFT's case was, in fact, an

appeal by the Director of Public Prosecutions and it

is reported in - - -

TOOHEY J:	Mr Ricther, just before you go to that case, a reading of the judgment of the Court of Criminal Appeal shows
that the court dealt first with the attack that was
made by reason of certain failures to comply with
statutory provisions.  The court then went on to deal
with the submission that the sentence was manifestly
excessive and at page 80 outlined a number of factors
which had apparently been urged in support of the
proposition that the sentence was manifestly excessive
and that a different sentence was called for. Now,
within that framework, was argument not being put to the
Court of Criminal Appeal, both that the sentence was
excessive and therefore that some lesser sentence should
be imposed?
MR RICHTER:	The argument was being put that the sentence was

manifestly excessive, not that it was excessive by

a little bit, for example - - -

TOOHEY J:	No, no.
MR RICHTER: ~ - - and therein lies the difference and therein

li~s the reason why the Cour't of Criminal Appeal

rerused to interfere on that basis because it found

that it was not excessive, quote, in the relevant

sense, namely, manifestly excessive.

(Continued on page 13)

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Dezulva

MR RICHTER (continuing):  The argument was not directed

to argument, for example, that the sentence

ought to have been 12 years with the minimum

of 10, in other words that the Commonwealth
sentences ought to have been fully concurrent
with the State sentences and that that

difference, bringing it down to 12 with the 10,

if that was appropriate1that would show manifest

excess. The argument was directed to the question

that the overall effect was manifestly excessive,

not merely by some smaller margin than such

manifest excess.

DAWSON J:  But precise figures are very seldom put,

are they? There is a certain danger in doing

it.

MR RICHTER: In putting figures?

DAWSON J: They may over-estimate or under-estimate, yes.

As pages 80 and 81 show, there were quite detailed

arguments which were put as to why the

sentence was excessive.

MR RICHTER:  Yes, indeed, Your Honour, but they were put

on the basis that it was manifestly excessive
and if the court found that it was not manifestly
excessive then, barring the quashing for other

reasons, it could not substitute its own sentence.

It could not -

DAWSON J:  But they also go to the question of the

appropriate sentence, do they not, those arguments?

MR RICHTER:  Indeed they do, but only to demonstrate that

the sentence imposed was manifestly excessive,

not just marginally or arguably.

DAWSON J:  They go to demonstrate what sort of sentence

ought to have been imposed, short of suggesting

figures.

MR RICHTER~~ I suppose they go to argue that a lighter

sentence ought to have been imposed. But

that is always directed to the question of

whether the sentence actually imposed is

manifestly excessive. It is not directed to

the question as one would direct it if one

was asked to plead for a sentence of what
the sentence ought to be for the particular

case.

(Continued on page 14)

C2T39/l/JM	13	7/2/89
Dezylva

DAWSON J:  I am right, am I not, that it is very seldom

that counsel making a plea actually suggests an

appropriate sentence, as to figures?

MR RICHTER:  With respect, what they quite frequently do

is to point to a range which they derive from

either the - - -

DAWSON J:	That was done here.
MR RICHTER:	Indeed, but what was found was that this

sentence was not outside the range and, therefore,

the sentence remained. On the other hand, if the

sentence has to be quashed for technical reasons

the court then has to resentence. It is quite

open for the applicant to urge a sentence within

that upper range which is lower than the sentence

imposed but nevertheless not manifestly less.

Therein is the sort of fine tuning, in our respectful

submission, that needs to be paid heed to when

a sentence is, in fact, quashed. One can make

a submission as to what the sentence ought to be

after the quashing of a sentence which is quite

different from the sort of submissions on sentence

that one needs to make in order to demonstrate

its manifest excess, and therein lies the difficulty

of the practice adopted in the Full Court and,

in our submission, that is one of the special

issues that arise in this case. As we say,the

extreme example of it is HUNTER's case where no

submissions were addressed - - -

DAWSON J:  But none could have been made. When you appeal

against a conviction for murder there is no question

of sentence.

MR RICHTER:  And none could have been made, precisely, which

is why the thing was remitted to the primary judge

for sentencing ab initio rather than the Full Court

determining the sentence or rather than it having

bee~ remitted to the Court of Criminal Appeal or

th\s Court fixing a sentence.

(Continued on page 15)

C2T40/l/MB	14	7/2/89
Dezylva

MR RICHTER (continuing):  But there is the intermediate case, an

offshoot of the concepts in HUNTER,on which we would

seek to, in fact, rely and the offshoot intermediate

case situation is this: that when the Court of Appeal

exercises its jurisdiction in resentencing it must

exercise an independent discretion and make up its own mind what the appropriate sentence is. Having

quashed a sentence, it is no longer in the position

of having to ask itself or asking itself, did what

the primary judge do amount to an appropriate sentence?

It must disregard that and make up its own mind afresh

as to what the appropriate sentence is. And in this

particular case the court quashed one sentence,

one Commonwealth sentence. It really had to quash

the other one and vary it as well, although it had
overlooked it, and that was rectified subsequently
in June. But had it quashed the other one, which
it ought to have done, and sought to vary it, it

ought then to have had a complete resentencing on the

Commonwealth counts. And what it did to the sentence

of 10 years with a minimum of six reflects the fact

that it did not turn an independent mind, as it

were, to the question of sentencing but was seeking to tailor it to what the primary judge had done and

what the Full Court had found was not demonstrated

to be manifestly ex9essive.

TOOHEY J:  I am not sure that that does justice to the reasons of the Court of Criminal Appeal, Mr Richter. It is

true that the court having dealt with what you described

as technical challenges then lookect at the question
of manifest excess and rejected that argument, but it

then went on, as I read pages 81 and 82,-to .

embark upon a resentencing prucess - perhans not at

any great length - but in terms the court was

not persuaded that a sentence different from that

which had been imposed was appropriate.

(Continued .on page 16}

-

C2T41/l/BR	15	7/2/89
Dezylva

MR RICHTER : . Th a t m i g h t have been corr e c t , w i t h

respect, had the court not prefaced its remarks by

saying:

On the other hand, after extending to

the applicant all the leniency that -

this is at the bottom of page 81 -

these factors can reasonably command; it is,

we think, not possible to conclude that a

different sentence (in the relevant sense) should

have been passed.

Now it is the inclusion of those words "in the relevant sense", when looked at in the context of the judgment,

that vitiates the point that Your Honour Mr Justice 'l'oohey

was making because what the court is there saying is,

it is not demonstrated in the relevant sense, namely

manifest excess -

BRENNAN J:  Why do you say "manifest excess" when those are the

precise words of the statute that Their Honours have

employed?

MR RICHTER:  I am sorry, Your Honour, the words "manifest excess"

are not in the statut~ as I read them.

BRENNAN J:  No the words that are in this statt1 te are t 1 if it

thinks that a different sentence should have been passe~1 ,

and those are the precise words that Their Honours are

using at the bottom of page 81.

MR RICHTER:  Yes, but that is if it thinks that a different

sentence ought to have been passed, in our respectful
submission, in this context on the basis that it finds

that it is manifestly excessive. And what the Full

Court is doing at the bottom of page 81 and through to

the top of page 82 is not in fact, in our respectful

submission, exercising an independent discretion but	i.t j.s in fact saying that the total of the sentences	imposed by the primary judge, not having been demonstrated,
cott1.d have been wrong or defective in the relevant sense,
namely manifest excess or specific error in that way it
reimposes them. And that is what it is doing. And that
in our submission is the wrong way to go about the exercise of a sentencing discretion.

(Continued on page 17)

C2T42/l/SR	16	7/2/89
Dezylva

MR RICHTER (continuing):  They are asking themselves, "Is

what the primary judge did in aggregate all

r i g h t ? " , when the q u es t i on o ugh t to be , "Wh a t

is the crime for which we must resentence worth?"

And a demonstration of that, of course, is provided

by what the c8urt itself did. It took an offence

which - and this is the second Commonwealth indictment -
the primary judge found to have been worth 10

years with a minimum of six and, for the purpose

of tailoring the results so that you end up with

the 16 with a minimum of 13; it reduced it to

four years with a minimum of three. Now, that

is not a proper exercise of a sentencing discretion,

in our respectful submission. That is not giving

the crime what it is worth and that is abusing

the notion of tailoring - - -

DAWSON J:  You are shading into another argument - an entirely

different argument - here, are you not?

MR RICHTER: It is tied into it, with respect, because

the other special point that arises, in our submission,

is that the concept of tailoring of sentences

to produce a particular sort of aggregate, was

not correctly used by the Full Court in the resentencing.

In other words, in the resentencing process or,

indeed, in the primary sentencing process, the
concept of tailoring a sentence is recognized
and, indeed, it is referred to by Their Honours

in their judgment. But it is only recognizable

as a legitimate concept within certain parameters;

in the ordering of concurrencies - that is

where the tailoring takes place - not in the

decision of what the particular crime is worth.

And what the Full Court did on this occasion

is to tailor by giving an offence something that

they obviously did not think it was worth, albeit

on this occasion less than they thought it was worth

just so that they could get around the problem

of the absence of statutory warrant for partial

concurrency between Commonwealth offences and

State offences which existed.

";..::::: 

That, in our respectful submission, must be a miscarriage of the discretion by the Full

Court: to have done that in relation to the

second Commonwealth indictment and, indeed, the

first Commonwealth indictment when it came to

vary that by reducing the minimum to three years
in order to tailor the sentence to the overall

sentence which they did not find manifestly excessive

and thereby once again reviving the problem of

having a partial concurrency in any event.

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MR RICHTER (continuing): That is not taken as a special

leave point, the fact that in the ultimate what the Full Court did is not warranted by its

statutory powers of sentencing.

DAWSON J:	You are not taking that point here?
MR RICHTER:	That is not .taken as a point - - -

DAWSON J: That is, we are not concerned with it?

MR RICHTER:  The Court is not concerned with it as a technical

point in terms of whether it was rig~t or wrong

but it is concerned with it in terms of what

the court did in the tailoring process because

our submission is that a court is not permitted

to tailor sentences in the particular way in
which the Full Court did it. It is not permitted
to tailor sentences other than by the ordering

of concurrences, in fact, and what the Full Court

here did was to attempt to do so by means that

it could not.

DAWSON J: There is an answer but what is the difference?

I mean, you cannot do it by concurrency, why cannot you do it by some other way to achieve

justice?

MR RICHTER:  Because, in our respectful submission, it brings

the law into disrepute, for example, if in the
tailoring process an offence which is worth

12 months gets t~ree years just because one

wants to tailor it that way or an offence which

is worth 10 years ends up getting four years.

DAWSON J:	But the only result of that is when you come
to look at it - - - ,
MR RICHTER:	At the offence.

DAWSON J: - - - in the future, you will have no idea,

looking at the sentence, of the true gravity

?} the offence. Is that all?

(Continuing on page 19)

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MR RICHTER: It is not all, with respect, Your Honour,

because - - -

DAWSON J:	What else is there?
MR RICHTER:	What else there is is that the offence

has to be looked at and an assessment has to

be made of its seriousness, and what it warrants.

The sentence has to be for the offence.	We
do not, in our respectful submission, have

global sentencing, although the notion of a

global -

DAWSON J:	We come very close to it, do we not?
MR RICHTER:	We come very close to it, but from a

different - - -

DAWSON J: Indeed, that is exactly concurrency is aimed

at.

MR RICHTER: Precisely, it - - -

DAWSON J:	.•... if I can use the word,
ot sentencing.
MR RICHTER:	It is aimed as an ameliorative tool to

produce an overall result which is not crushing

by the ordering of coneurrencies.

DAWSON J:	And it is to give a global result.
MR RICHTER:	To give a global result, not in terms of

what a particular offence is worth, but to
in fact reduce the burden of the accumulation

of the particular sentences to a tolerable

level. But that is not what has happened

here, in our respectful submission. What

has happened here is that the Full Court

reimposes a sentence of four years with

a minimum of three for something about which

iG had never expressed a view as to its

~~ecific propriety for the offence. Indeed,

one would have imagined at the time 'that, were it

not for the partial concurrency problem, the

court would, in our respectful submission,

have probably looked at it at that stage and

said, "Well, that is not manifestly excessive

in itself", because the appellate process

initially begins with an examination of the
head sentences for specific offences to determine

whether or not they are manifestly excessive. It

then looks at the global situation to determine

whether or not the global situation is manifestly

excessive. The process can indeed be reversed;

it can be looked at in a number of different ways.

But in the end the sentence imposed for a particular

offence must meet its particular seriousness.

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MR RICHTER (continuing):  So that if I may just come back to

WILLISCROFT and the way in which the majority describes proper sunnning up of the functions of the Court of
the functions and the way the Court of Criminal Appeal
goes about discharging its functions on sentence appeals,
the statements in WILLISCROFT have been accepted in

Criminal Appeal in sentence appeals and, indeed, it followed

earlier cases which had enunciated those principles.

I would seek to refer to a passage at (1975)VR 297 connnencing at about line 37:

In the case of appeal by a prisoner on the ground

that the penalty imposed on him was excessive, this

Court in REG V TAYLOR AND O'MEALLY, pointed out

that appellate intervention was permitted only

when - "it appears that he (the judge) has made

a mistake as to the facts, or has acted on an

erroneous principle of law, or has taken into

account some matters which should not be taken

into account, or has failed to take into account
matters which should have been taken into account,
or has clearly given insufficient weight, or

excessive weight, to some matter taken into

account, or unless the sentence is obviously -

not merely arguably - too severe or too lenient."

These same principles are equally applicable when

the appellant is the Attorney-General.

And there is a reference to REG V BUTLER, (1971) VR 892.
And that is precisely, in our respectful submission, the

inquiry that the Court of Criminal Appeal embarks on

and that is its practice. But there is no aspect of

practice which would then, if the court is of the view

that the sentences ought to be quashed, which would

then permit submissions to be made as to what the

sentence ought to be, and there may be a number of

different matters that can be put in that context

which were not put to the primary judge, for example,

or could not have been put to the primary judge, for

example. There might be additional matters that need

to be raised or that might be sought to be raised. There

might be argument of a different interpretation as

t~~some evidence. There might be a need to call some

evidence from time to time. Indeed, the court exercising

its then original discretion in resentencing would need

to look at a number of matters, or might need to, which

had not been considered to that point of time.

The next passage to which I seek to refer in

WILLISCROFT is at page 298, approximately line 19:

In determining the question that this submission posed for resolution it must be acknowledged that

a number of cases decided in this Court indicate
inarguably that it is the adequacy of the term
of :imprisonrrent independent of the minimum term

fixed before which the offender is eligible for

parole, that must be examined: see, for example,

REG V CAMPBELL. This, then, is the first question

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to be resolved. If these terms cannot be said
to be excessive, then, and only then, is it

permissible to look at the minimum term imposed

with a view to determining if that minimum term

is so improper as to warrant interference.

And there is citation of a number of other cases

and the court continues:

This Court has often observed that it is

desirable that as a general rule there should

not be too great a disparity between the

maximum and minimum terms imposed.

What the court is there setting out is what the proper

inquiries are, and the proper inquiries are to look at

the various terms imposed; the head sentence first
to consider whether or not that is manifestly excessive

or manifestly inadequate.

BRENNAN J: It does not say "manifestly" there, does it?

MR RICHTER: It does not, but when one ties it into the

considerations enunciated at 297 - - -

BRENNAN J: Those are considerations which are not considerations, the existence of which makes it mandatory to interfere,

they are considerations which the court says it must

find to exist before it will interfere.

(Continued on page 22)

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MR RICHTER:	Yes, indeed_.
BRENNAN J:	Well, then, having found these things to exist the court then must consider whether the sentence
is excessive and at page 79 of the transcript
here Their Honours make it perfectly clear that:

Despite the conclusion to which we have

come that a re-consideration of the sentence

by this Court is called for.

Their Honours then reconsider the sentence and they come to the conclusion that the passages to which

your attention has been directed, that the condition

precedent to the exercise of the power to interfere

has not been satisfied.

MR RICHTER:  It has not been satisfied in relation to the

whole lot.

BRENNAN J:	It has not been satisfied at all.
MR RICHTER:	Well, it had, with respect, and must have been because they set aside a sentence and recast it
into four with the three from 10 with the six.
BRENNAN J:	That is a different proposition, is it not?

I mean, there was a case where the sentence was

reduced.

MR RICHTER:	Indeed.
BRENNAN J:	And it was reduced because it was found that

if there was not to be concurrent sentences then

it would be oppressive to leave those sentences

stand, so those sentences were reduced, and having

been reduced there was the overall sentence left.

The court considered that and came to the conclusion

that there was no excess overall.

MR RICHTER:  _ With respect, that is looking at it the wrong

way', in this sense :  hav i n_g_ quashed the sentence

on~the second Commonwealth indictment, having

then fixed the sentence of four with the three

it ought then to have been open to make submission

that that sentence, or rather that the fresh

sentence which was to be imposed should have been

fully concurrent with the State offences because

it related to the same incident as some of the

State offences.	Could I just make one thing
clear?	We are not here seeking to overturn any
of the State sentences.	We do not seek to overturn

the aggregate sentence of 12 years with the

minimum of 10. What we are attacking is the

resentencing process that occurred on the two

Commonwealth indictments.and we do that, in our

respectful submission, by putting the proposition

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that when resentencing the court need not be
troubled as to whether something is excessive
or not excessive but must consider what is

appropriate in the circumstances and the

court throughout, in our respectful submission,
poses for itself the question, or rather seeks

to pose the question of "Was there anything wrong with the 16 with the 13?" whereas it ought to have come at it from the opposite direction of saying,

"What ought the overall sentence to be in this

case?"

GAUDRON J:  But that is precisely what they have done, is

it not, at page 80 against the letter (d):

The remaining question then for determination

is whether this Court thinks a different

sentence should have been passed.

At that stage the Chief Justice is merely repeating

the terms of section 568(4)?

MR RICHTER:  Yes, Your Honour, with respect, but that is

in the way in which it is interpreted in cases

such as WILLISCROFT, whether a different sentence

ought to be passed because it is meant the sentence

that was passed is manifestly excessive.

GAUDRON J:	That is not right.
MR RICHTER:	Because unless they find that and unless they

find a specific error they cannot interfere.

(Continued on page 24)

"!.=:::: 

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GAUDRON J:  Go back to page 79:

Whether the need to correct this sentencing

error requires of this Court a complete

re-sentencing ..... need not now be considered -

et cetera. And then -

The remaining question ..... is -

and that is the question posed by the subsection.

MR RICHTER:  I am sorry. Your Honour was referring to the

passage at page 79.

GAUDRON J: Yes.

MR RICHTER:  I am just trying to find the commencement of the

"Whether".

MASON CJ:	The second-last line.
MR RICHTER:	Yes, indeed. That of course is said in the context

and the fact that they could not do it, and it is in that context that they then go across to ask

of the fact that they needed to set aside the

question (d) which, in our respectful submission,

would be asking for itself the question of whether the
overall result was manifestly excessive because the

context in which they discuss it is in terms of the

judge having tailored the sentences to produce the

effective sentence pronounced by him.	They then go
on:

The real issue is whether we should interfere

with the substance of the sentences imposed

and in particular the effective total sentence

of 16 years with a minimum term of 13 years.

submission, asking themselves whether the overall	In other words, they are still, in our respectful
r~sult of 16 years with the minimum of 13 is manifestly excessive and that is what they are directing themselves to in the way that they have split up their consideration of the various issues.

DAWSON J:  Mr Richter, if you succeeded here and went back to

the Full Court and attempted to persuade them that
16 years with a minimum of 13 was not an appropriate
sentence, it was too high, and you failed to
persuade the Court of that, would you then be asking

nevertheless to do anything with the sentence?

MR RICHTER: If I went back - - -

DAWSON J:  Anrl failed to persuade them - failed to dislodge

in their minds the belief.that they have that 16

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with a minimum of 13 is the appropriate overall.

MR RICHTER:  Post High Court Appeal or post invitation by the

Court of Criminal Appeal to make submissions as to

what it ought to be?

DAWSON J:  If you made your submissions, what would you be

asking the Court to do, assuming that they still

remained of the view that 16 with a minimum of 13

was appropriate? Anything?

MR RICHTER:  If that had to be set aside for various technical

reasons, I would be asking them to make the
Commonwealth sentences fully concurrent with the

State sentences because they are demonstrably part

and parcel of the same transaction. In other words,

the Commonwealth counts, in fact, .arise in this

way - - -

DAWSON J:  What I am really getting at is,you are not

really interested in any retailoring process, are

you, if it does not produce an overall better result

for your client?

MR RICHTER:  No, of course not. I would be silly if I was.

DAWSON J:  So that really what you are saying is, the whole

point of your argument is, we did not have a chance

to present submissions when we ought to have.

MR RICHTER:  Yes, and the practice which the court has

produces that.	I would not be submitting for a
retailoring at all, with respect, Your Honour.	I

would be submitting that because the two Commonwealth

counts are covered by the State counts for which the

accused was then also sentenced, there ought to be

full concurrency - and that is not a matter of tailoring,

that is a matter of saying that the State trafficking

count, for example, which covered a month - - -

DAWSON J:  Yes, but you would only be interested in that

submission if it produced a lower overall result. (Continued on page 26)

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M:R. RICHTER:  Of course, and in our respectful submission, it

would necessarily produce an overall lower result because

if, for example, one were to produce a result to retain

the 10 years with a minimum of six for the second

Cormnonwealth indictment a.nd then pose the question,

should one make it wholly cumulative or wholly concurrent~

In the circumstances, the answer would be wholly

co~current,in our respectful submission. It would have

to be because not to make it so would produce a sentence

that was so out of kilter with the criminality involved

that it would be manifestly excessive. Those

are in effect our submissions for special leave~ if

the Court pleases.

MASON CJ:  The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 3.12 PM SHORT ADJOURNMENT

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UPON RESUMING AT 3.21 PM:

MASON CJ:	The Court need not trouble you, Mr Flanagan.
MR FLANAGAN:	May it please the Court.
MASON CJ:	The applicant's primary submission in

support of this applicationfoc special leave
to appeal is that in dealing with the

application for leave to appeal against

sentence in this case the Court of Criminal

Appeal adopted the erroneous practice of

dealing with the application as a one stage

process. The applicant submits that the

court should have dealt with the application

as a two stage process. In this two stage

process it is argued that the court should have

required the applicant first, to show that the

sentence imposed by the sentencing judge should

be set aside and secondly, should the court have

accepted that the sentence should be set aside,

then, and only then, to present argument on

the question what sentence ought to be imposed.

We do not accept that the suggested practice

should be adopted as a general rule. The question

what is the appropriatesentence in the circumstances

of the particular case, is not necessarily, or

2ven ordinarily,a distinct matter separate from

and unrelated to the question whether the sentence

imposed by the sentencing judge should be

set aside. The consequence is that the applicant

had the opportunity of presenting submissions on

what was the appropriate sentence to be imposed

and,as we read the judgment of the Court of

Criminal Appeal, counsel took advantage of that

opportunity.

The applicant's second submission is that

the Court of Criminal Appeal was in error in failing

te determine for itself what was the appropriate

sentence. The court, after reviewing the relevant

circumstances, said :

"On the other hand, after extending to
the applicant all the leniency that

these factors can reasonably command,

it is, we think, not possible to conclude

sense) should have been passed. 11 that a different sentence (in the relevant

The applicant argues that this approach was

inconsistent with section 568(4) of the

CRIMES ACT.

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MASON CJ (continuing): That subsection provides::

"On an appeal against sentence the Ful 1- Court shal 1,

if it thinks that a different sentence should have

been passed or a different order made, quash
the sentence passed at the trial and pass such
other sentence or make such other order warranted

in law (whether more or less severe

and including an order for probation -

in substitution therefor. as it thinks ought to have been passed or made, and in any other case

shall dismiss the appeal."

When the passage already quoted from Their Honours'

judgment is read in context, it is quite evident that

the Court assessed for itself whether a different

sentence or a different order should be made. In our

opinion, therefore, what the Full Court did was in

conformity with the requirements of section 568(4).

For these reasons, ibe application for special

leave to appeal is refused.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

~~

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