Diamond v The Queen

[1994] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S77 of 1994

B e t w e e n -

JASON DAVID DIAMOND

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 10.42 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:   May it please the Court, I appear with my learned friend, MR R.J. BUTTON, for the applicant.  (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR P.C. BANNON, QC:   If Your Honours please, I appear with my learned friend, MR J.P. BOOTH, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

BRENNAN J:   Yes, Mr Hidden. 

MR HIDDEN:   If the Court please.  Your Honours, this also is a matter in which an enlargement of time is sought.  The circumstances are explained briefly at page 31 of the application book.

BRENNAN J:   What is to your attitude to that?

MR BANNON:   Not opposed, Your Honour.

MR HIDDEN:   May it please the Court.  Your Honours, the application raises the principles relating to appellate intervention to correct disparity of sentence.  We are mindful at the outset of the fact that what we have here is a situation where the sentence said to be disparate from that imposed upon the applicant was itself imposed in a children’s court.  We are mindful of the fact that children’s courts operate differently and have different social purposes than adults’ courts.

That said, Your Honours, that is not the basis upon which the majority dismissed the appeal.

BRENNAN J:   That may be so, but there are different sentencing principles to be applied in the children’s courts, are there not.

MR HIDDEN:   We appreciate that, Your Honour.  However, it is our submission that that fact does not necessarily mean that a disparate sentence imposed in an adult court should never be corrected at all, in the light of what it ‑ ‑ ‑

BRENNAN J:   It is not a question of corrected.  If there is a question of parity, then is it material that the sentencing principles which have governed the imposition of the first, and it may be thought lesser, sentence is relevant to the question of whether the practice or rule in Lowe v The Queen has any application?

MR HIDDEN:   In our submission, Your Honours, it does, because the disparity is still apparent, even though one is dealing with different jurisdictions, and the sense of grievance is still real.  And, of course, in this case, Your Honours, to make matters worse, the Court of Criminal Appeal characterised the sentence passed upon the child as itself manifestly inadequate, even by the standards of the Children’s Court.  That only heightens the applicant’s sense of grievance, and justified, indeed in our submission, called for the intervention of the court, at least to the extent that His Honour Mr Justice Smart was prepared to intervene and reduced the order of periodic detention by one year.

DAWSON J:   If he has a sense of grievance or regret, it is that he was not a year or so younger, not that the sentences are different.  He would understand that the treatment in the Children’s Court is different.

MR HIDDEN:   Well, Your Honour, he had that problem, about which nobody could do anything, that is so.  But, in our submission, Your Honours, that does not conclude the issue; it is not that simple.

McHUGH J:   But it does create a problem.  If two New Zealanders agree to import drugs into Australia and one is arrested in New Zealand and one is arrested in Australia and they are sentenced in the respective countries, it is irrelevant, is it not, that a sentence in New Zealand is higher or lower than the sentence here?

MR HIDDEN:   But it is not relevantly the same, in our submission, Your Honour.  There one is talking about two nations, and two national systems ‑ ‑ ‑

McHUGH J:   Yes; two regimes; two sentencing regimes.

MR HIDDEN:   But these are two regimes within the same State of this Commonwealth, Your Honours; as we acknowledge, regimes with different purposes and different sentencing armouries, as I think, Mr Justice Hunt, put it.  Be that as it may, as we have said, even by the standards of the Children’s Court, Shortland’s sentence was so low as to be seen as irresponsible, and the disturbing aspect of the case, Your Honours, is that, as we have said, the Court of Criminal Appeal, or the majority, did not dismiss the appeal for that reason.  It dismissed the appeal because of a principle, it stated, to the effect that where the sentence with which the sentence of the applicant is being compared is itself manifestly inadequate, then the applicant has no justified sense of grievance.

Now, Your Honours, that cannot be the law, and that pronouncement must be correct, in our submission, Your Honours.  If that was so, then, if a disparate sentence were low but within the range, an applicant would have justified cause for complaint but, if it were so low as to be below the range, then nothing can be done for the applicant.  That cannot be the law, Your Honours.

McHUGH J:   I think you have got a strong argument on that ground, Mr Hidden, but I am not sure that gets over the problem of the two different sentencing regimes. 

MR HIDDEN:   Well, Your Honours, in our submission, Mr Justice Smart ‑ ‑ ‑

DAWSON J:   You are really asking us, in the circumstances, to take on board what would be really an academic question; your prospects of success in this particular case not being particularly good.

MR HIDDEN:   Your Honour, it is our submission that there remain prospects of success because the disparity was such as to call for some intervention.  It could not be left as it was.  Mr Justice Smart, with respect, got it right, and corrected the sentence of the applicant to some degree to recognise the disparity, recognising that it was impossible to put the applicant in the same position as Shortland.  Now, that is what the court should have done.  In our submission, that gives this application ‑ that gives an appeal, if special leave were to be granted, a reasonable prospect of success in this Court.

Your Honours, the other point agitated is really allied, and that is, while Mr Justice Hunt described the sentence passed upon the applicant as not inadequate and maybe rather hard, none the less, His Honour, who gave the judgment of the majority, made the comment, as he had made before in Hallocoglu’s case, that periodic detention is extraordinarily lenient. 

And, Your Honours, it is our respectful submission that the place of periodic detention in the sentencing armoury throughout the nation needs to be properly seen and it is, in fact, the second most serious sentencing option available to courts.  The fact that it may be ameliorated by administrative arrangements has nothing to do with the court’s assessment of its severity.  It is no different from courts being not permitted to have regard to the operation of the remission system, or the operation of a classification system on adult prisons. 

DAWSON J:   What is the maximum penalty for armed robbery, Mr Hidden?

MR HIDDEN:   Twenty years.

DAWSON J:   It seems an extraordinarily light sentence to me. 

MR HIDDEN:   The sentence passed upon the applicant?

DAWSON J:   Yes.

MR HIDDEN:   It was very lenient for good reason.  I should say, Your Honours, it is fair to say that no one ‑ ‑ ‑

DAWSON J:   I am just going on the general range in other places.  Is New South Wales’ range of sentences lower than elsewhere?

MR HIDDEN:   But, Your Honour, no one in New South Wales gets anything like 20 years for one armed robbery.

DAWSON J:   No, but they get something like five or six or seven.

MR HIDDEN:   Yes, if they are an adult, Your Honour, and as this boy just was, and in the absence of exceptional subjective circumstances, which His Honour found here.  But I apprehend Your Honours, that Your Honours are seized with the principal complaint here, but Your Honours are troubled as to whether it has any application to the resolution of this case.  I do not believe that we can usefully make any further submissions on the matter unless we can assist Your Honours, further.

BRENNAN J:   Yes, thank you, Mr Hidden. 

MR HIDDEN:   May it please the Court.

BRENNAN J:   We need not trouble you, Mr Bannon.

To succeed in an application for special leave to appeal it is generally necessary for the case to reveal two qualities: first, that the courts below have considered an issue of principle of general public importance that requires determination by this Court; and secondly, that the facts and circumstances of the case clearly raise the issue of principle for determination.  The second quality is lacking in this case where the sentence with which the applicant seeks a comparison was passed in the Childrens Court under the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) which creates a different sentencing regime and requires the application of different principles from those generally applicable. Accordingly special leave will be refused.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE