Dib v The Queen

[1994] HCATrans 322

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'JA

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1993

B e t w e e n -

ELIZABETH DIB

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 12 MAY 1994, AT 12.04 PM

Copyright in the High Court of Australia

Dib 1 12/5/94

MR P. BYRNE: If it please the Court, I appear for the

applicant. (instructed by Horowitz & Bilinsky)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MASON CJ:	Mr Byrne.
MR BYRNE:	Your Honours, this application raises a question
of the proper construction of section 5(2) of the regulates the structure of sentences imposed, both in the local courts and the district court, and in the supreme court. It is unlikely, Your Honours,
that there is a more frequently applied legislative
provision in the administration of justice in
New South Wales.

Your Honours, the purpose of this application

is to seek the resolution of a conflict in the

construction and the application of section 5(2)

among various members of the Supreme Court of

New South Wales. The submission is put,

Your Honours, that that conflict is a fundamental

one and requires the resolution of this Court.

MASON CJ:  Now, is the interpretation given to section 5(2)

by the majority in this case the prevailing

interpretation? I know you say two different views

have been expressed, but is the majority giving

effect to the prevailing view?

MR BYRNE:  No, Your Honour. The prevailing view is that

which is set out effectively in the judgment of

Mr Justice Wood in this case.

MASON CJ:  So that if you go back to this earlier case, the

one that is referred to in your outline of

argument, Close, it is Mr Justice Sully's view that

is the prevailing view.

MR BYRNE:  No, Your Honour

MASON CJ: It is the other way around.

MR BYRNE:  Mr Justice Hunt's view is the prevailing

view.

MASON CJ:	I see.
MR BYRNE:	It may be most useful to take Your Honours

directly to the judgment in Close, because that is

Dib 2 12/5/94

perhaps the most thorough analysis of the

conflicting approaches.

DEANE J:  When you say that, have you any examples since the

decision in this case, where a judge of the

supreme court has said)' "I will not follow the

decision in Dib, because I think the correct view

is the decision in the earlier case."? It sounds

rather strange.

MR BYRNE:  I cannot point to specific examples, Your Honour,

although the case of Bougaard, which is an

unreported decision of the Court of Criminal

Appeal, is one which - - -

DEANE J:  - - - comes after Dib?

MR BYRNE: No, it precedes Dib. But, Your Honours, the

recognize the different approaches but apply the approach which they themselves prefer.

approach that appears to be taken in the Court of

DEANE J:  I was only querying your reply to the

Chief Justice, because I would have thought the

prevailing view in the supreme court must be the

latest view expressed view by the Court of Criminal

Appeal.

MR BYRNE: Well there are conflicting views expressed by the

Court of Criminal Appeal and in those cases where a certain view is followed, the decisions such as

Dib and Bougaard, as far as I understand the

unreported judgments, are neglected. It is not a

matter which is addressed, although, in Close,

Mr Justice Hunt recognized the existence of

differing views and he was particularly referring
to the view that was expounded by Mr Justice Sully

in his decision in Close's case.

MASON CJ:  Has the Chief Justice participated in any of the decisions?

MR BYRNE:	Your Honour, the Chief Justice has participated in a number of those decisions and the
Chief Justice, at least so far as I read his judgments, would appear to follow the approach
taken by Mr Justice Hunt.

MASON CJ: And that is the approach taken by Justice Wood in

this case?

MR BYRNE: That is right, Your Honour. There has never

been, so far as I am aware, a case in which the two

conflicting approaches are directly confronted and

some resolutions sought to be made. The closest

that one gets to that I think, Your Honour, might

Dib 12/5/94

be revealed in the approach taken by

Mr Justice Sheller in Close's case, if I just may	refer Your Honours to that decision. It is
reported in 65 A Crim R 55; Mr Justice Sheller's
His Honour says:  judgment is at page 56. In the opening lines,

Unassisted by earlier decisions I would

have thought that section 5 of the

Sentencing Act 1989 (NSW) conferred upon the sentencing court an unlimited judicial discretion to fix the additional term for any period not exceeding one-third of the minimum

term.

His Honour there, in effect, recognizes the approach taken by Mr Justice Sully and

Mr Justice Handley in the case before Your Honours

now, the subject of this application, but then goes

on to say:

However, this Court has consistently applied

section 5(2) on the basis that "normally" the

additional term should be one-third of the

minimum term and it is now too late to abandon

that approach.

Now, that is as close as I can find, Your Honours,

to any attempt to resolve the conflicting

approaches taken by the various judges of the

court.

MASON CJ: Well, it is not a matter for you, I suppose, to

comment on, Mr Byrne, but I would have thought that

when there are conflicting decisions in the

supreme court, a bench of five ought to be

convened, in effect, to resolve those conflicting

approaches. I do not see why, automatically, it is

a matter that should be resolved by this Court but,

as I say, that is not a comment that I really

expect you, or could properly expect you, to

respond to.

MR BYRNE:  May it please Your Honour. Your Honours, the

different approaches made by the court are
exemplified by the decision in this particular
case, that the judgment of the majority is, putting

it shortly, a representation of the school of

thought that section 5(2) does not establish what

has been described as a statutory norm. This Court

in Griffiths' case, 167 CLR 372, dealt with the

legislative predecessor to section 5(2) which was,

effectively, in similar terms. The Court held that

the terms of the legislative predecessor to

section 5(2) did establish what the court described

as a statutory norm.

Dlb	12/5/94
DEANE J:	Mr Byrne, am I correct that everybody approaches

section 5 on the basis that the longer the

additional term, the more favourable it is to the

accused or the convicted person and that that being
so you have to show special reasons for being more

favourable to the convicted person?

MR BYRNE: That is right.

DEANE J: Well now, implicit in that is that everybody

accepts that section 5 did not change the

sentencing approach from being one where you start

from determining the appropriate sentence into one

where you start by determining what is the

appropriate sentence of imprisonment to be served

because if it changed it to the starting point
being the appropriate sentence of imprisonment to
be served, the longer the additional sentence the

more unfavourable to the accused, which would be a

difference approach to why you needed special

circumstances.

MR BYRNE:  Your Honour, I think it is fair to say that there

is a difference in approach amongst the various

members of the supreme court. One view is that

section 5(2) has created, as His Honour

Mr Justice Sheller in that passage that I just

referred to, in effect, an unfetted judicial

discretion to impose a sentence of any structure at

all and, indeed, I am aware of one case in which a

judge sitting on the Court of Criminal Appeal - - -

DEANE J:	I think you have missed the point of my question.
MR BYRNE:	I am sorry, Your Honour.
DEANE J:	Nobody has suggested that section 5 has altered

the position from being your starting point is what

is the appropriate overall sentence to a starting

point of what is the appropriate sentence of

imprisonment to be served.

MR BYRNE:  I think that is probably correct, Your Honour.

DEANE J: Except, prima facie, that is what the section says

when the only overall sentence is something which
results from the addition of something, of two
other things, but we are not concerned with that

here.

MR BYRNE:  No. I think the difference in approach comes,

Your Honour, when the task of structuring what is

considered to be the overall sentence is made, and

there is one school of thought that says it is

unfetted and can be any proportion of the total

sentence - the minimum term can be any proportion

of the total sentence. There is one case of which

Dib 12/5/94

I am aware in which a matter in the

Court of Criminal Appeal was determined by one judge on the basis that a sentence of five years should be structured as to four years and eleven

months minimum term, plus one month additional

term, but that is an extreme example of the view

which says that the sentencing discretion is

unfetted. But there is, to adopt Your Honour

the Chief Justice's expression, a prevailing view,

in my submission, that section 5(2) establishes

what has been described as a statutory norm,

whereby the minimum term should be three-quarters

of the total sentence, and that can be reduced

downwards from that and thereby create a result

more favourable to the convicted person, if there

are special circumstances.

Your Honours will see in the judgment of

Mr Justice Handley in this case - if I might just

refer Your Honours to page 17 of the application

book - His Honour, at the top of the page says:

While there may undoubtedly be a practice

of adhering to the statutory proportion, in my

view a departure from this practice does not

in itself demonstrate error such as to require

the intervention of this Court.

His Honour then makes the observation:

The section does not prevent a sentencing

judge from imposing a sentence which is more

severe than that provided for in

section 5(2) -

Whilst that short passage from Mr Justice Sheller's

judgment in Close's case may be justified on a

strict interpretation of the very words of the

statute, it is an interpretation which has not been

given any force by the majority of the members of

the Supreme Court in New South Wales. Your Honours, the case of Bougaard is, so far

as my researches have disclosed, alone in being a

unanimous judgment of the Court of Criminal Appeal

in which all its members have said that the concept

of a statutory norm is wrong. It may be

contrasted, Your Honours, with one of the earlier

decisions on the application and construction of

section 5(2), which is Moffitt's case,

20 NSWLR 114. In that case the court was unanimous

in holding that the words of section 5(2) did, in

fact, establish a statutory norm. So, as I have

said Your Honours, the difference in approach is

perhaps most clearly illustrated by a comparison

between what Mr Justice Hunt and Mr Justice Sully

Dib 6 12/5/94

said in their respective judgments in the case of

Close.

MASON CJ: But how do you get a norm out of subsection (2)?

MR BYRNE: Your Honours, the approach taken by those judges

who hold that such a norm is established by the

words of the section, is set out in the judgment of

Mr Justice Hunt in Close's case. What he has done

is to refer to the legislative history, the

predecessors to section 5(2), and in particular

section 20A of the Probation and Parole Act 1983,

which was the legislation dealt with by this Court

in Griffiths' case.

DEANE J: But even if you assume that you do get a statutory

norm, in the sense that in sentencing for an

offence, a judge will normally observe the

three-quarters/one-quarter. That really does not

take you very far in terms of the problem in this

case, does it, because you have got to then say, in

the case of cumulative offences, you then disregard

that statutory norm for the individual offences

and, whereas the legislature has indicated the

minimum term should be three-quarters of the term

for each offence, you disregard that legislative

intent.

MR BYRNE:  The approach taken, Your Honour, by a number of

judges and by Mr Justice Wood in this case - and if

I just might refer Your Honours briefly to the

comment that His Honour made in the course of his

judgment at page 12 of the application book at line

8, His Honour there said:

It is clear that the fact of an

accumulation is a "special circumstance"

within the meaning of section 5(2) of the

Sentencing Act.

And that is an approach which has been consistently

applied by those members of the Court of Criminal

Appeal who consider that there is, in effect, a statutory norm established. That was also the

thrust of the judgment of the court in Moffitt's

case and, indeed, in Close's case. All of those

cases which involved accumulation of sentences were

held to require, in the circumstances, a sentence

which at least roughly approximated the statutory

norm in the sense that the minimum term of the

total sentence was 75 per cent of its length.

There is simply a difference in approach between

that exemplified by Mr Justice Wood, in this case,

and that exemplified by the majority. The approach

of Mr Justice Wood is one which has consistently

been made by other judges of the court.

Dib 7 12/5/94

The situation that now exists in the Court of

Criminal Appeal is, in my submission, one where the

determination of appeals to that court is more
dependent on the constitution of the court and the
approach which they take to this issue than on the

merits of the individual case.

DEANE J:  I was directing you more to the problem of

transferring your statutory norm from section 5 to
section 9 in that grant the statutory norm: say,

for example, you have got three sentences where, properly looked at in isolation, the appropriate sentence is six years minimum, two years additional

for each.

MR BYRNE:  Yes.

DEANE J: Well then, the result of the working of section 9,

on those three sentences, is that the convicted

person gets a real advantage in that, instead of

having 18 years minimum, six years additional, he

ends up with 18 years minimum and only two years

additional.

MR BYRNE: Well, that is one way of accumulating - - -

DEANE J: Yes, but then the argument is, that advantage of

having dropped off four years of the additional

term which the individual sentences warranted,

should be converted into a further advantage by

converting say three years of the minimum term into

additional term to present an ultimate balance.

MR BYRNE:	Yes, and to achieve the statutory norm.
DEANE J:	I understand the practical common sense - there is

a bit of a problem in terms of a legal argument

though, is there not?

MR BYRNE:  The problem with that case that Your Honour has

posed as an example is that wherever somebody comes

up for sentence in relation to a number of serious

matters and accumulative sentences are to be

imposed, then the principle of totality obviously

comes into question.	Your Honour is fully familiar
with that.	The thrust of the - if I can again

adopt what Your Honour the Chief Justice said -

prevailing view is that the principle of totality,

having been applied, should still result in

sentences which are structured so as to roughly achieve the statutory norm, that in the end the sentences imposed, even where there are

accumulative sentences imposed, should achieve a

result which requires the convicted person to serve

approximately 75 per cent of his or her sentence in custody and leave a significant period, in the case of people who have been sentenced to long periods

Dib 12/5/94

of imprisonment, for parole supervision on their

ultimate release.

DEANE J: A disregard of the principle of totality is a

legitimate criticism of the example I put to you.

I accept the force of what you say in that regard.

MR BYRNE: Yes, Your Honour. Your Honour, those are the

submissions.

MASON CJ: Thank you. Mr Solicitor.

MR MASON:	Can I take you to 167 CLR, just briefly to seek to demonstrate where statutory norm came from and
why it should have stopped, as it were, before the
Sentencing Act. At page 375 of the report,
section 20A(2) is set out, where it is said that:

The non-parole period shall be at least

three-quarters of:

(a) the length of the sentence -

Over the page is section 21(3):

Notwithstanding section 20A, a court or the
Board, when specifying a non-parole period

with respect to a serious offence, may specify a shorter period ..... but only if it determines that the circumstances justify that course.

Your Honour Justice Deane, at page 383 point 7,

said:

In my view, the Court of Criminal Appeal was correct in treating section 21(3) as enabling

a sentencing judge to impose a lesser

non-parole period than the minimum period
prescribed by section 20A only in a case where

the circumstances are special or exceptional.

Section 20A sets the statutory norm.

Section 21(3) allows departure from that

norm - "but only" in the exceptional or

special case where circumstances "justify" it.

Now, Your Honours, as my learned friend has said, it was in Close's case, 65 A Crim R, that

Mr Justice Hunt, as it were, set out the competing view and the reasons for it, and it was predominantly because of the legislative history

and an inference that Parliament intended to pick

up the jurisprudence that had developed under the

Act's predecessor.

In my submission, section 5 of the

Sentencing Act, 1989, is clearly distinguishable

and the view of Mr Justice Hunt cannot be defended

Dib 9 12/5/94

in relation to the wording that is used. "The

additional term must not exceed one-third of the

mini.mum term unless the court decides there are

special circumstances." That clearly imposes a

maxi.mum; it does not impose a mini.mum, and by

inference it rejects the concept of a mini.mum.

Your Honours, our submission is that the Court should refuse special leave on the basis that the

majority opinion was clearly a correct

interpretation. It is not at all clear that it is

correct to say that this is a majority/minority

decision because, at the bottom of page 13 of the

application book in the judgment of

Mr Justice Wood, His Honour noted about line 23

that the expression "statutory norm":

is perhaps somewhat unhappy, since the Act

does not require that the additional term

equate or be not less than one-third of the

mini.mum term. The section does no more than

expressly require that the additional term not

exceed one-third of the mini.mum term in the

absence of special circumstances.

Notwithstanding, in most cases the

practice has developed of preserving that

norm. I believe there is an expectation

although it is no higher than that on

expectation -

So, the choice perhaps is between an expectation,

but not one that establishes a sentencing error -

perhaps a starting point - but not one that is in

any way determinative, on the one hand, and the

majority view in the court below, which says, in
effect, the matter is at large, subject only to the

need not to exceed the one-third provision.

Alternatively, Your Honours, we would submit

that this would not be an appropriate vehicle to

resolve the issue. Each of the judges below

recognized that there was a discretion that

particularly was called into play because of the

aggregation of the cumulation of sentences and

ultimately the decision in the present case was a discretionary exercise of that power to adjust or

not adjust, as the case may be.

DEANE J:  Mr Solicitor, what, if anything, do you say, in

response to Mr Byrne's suggestion that the

predominant view that has still been adopted in the

supreme court is that of the Close majority?

MR MASON: That is a correct statement, in our

understanding, Your Honour.

Dib 10 12/5/94

DEANE J: Notwithstanding the decision in Dib? Well, your

junior seems to be nodding.

MR MASON:  Yes, that is what I am informed.

DEANE J: It seems very strange.

MR MASON:  Yes, and I would add, notwithstanding the fact

that Dib is clearly correct, but that is another

point. There certainly seems to be a situation

where the judges are agreeing to disagree. There

has not been - - -

DEANE J: That creates a bit of a lottery really, does it

not?

MR MASON:  Yes, and perhaps the idea of a specially convened

court might be one way of approaching the matter if

it is a matter that ultimately is significant.	Of
course, the court recognizes that the discretion
does exist; it does not necessarily betoken a
sentencing error that you did not end up with a
statutory norm or perhaps even that you did not
start with the statutory norm.

MASON CJ:  You do expect a supreme court to develop a

concluded view in relation to a matter of

sentencing and you do expect a

Court of Criminal Appeal to develop a final view on

a matter of sentencing.

MR MASON:  Yes. The Court of Criminal Appeal has, in two

cases that I am aware of, said, (a) it is not bound

by its predecessors, and (b) it is not bound by the

Court of Appeal. Now, those two - - -

MASON CJ:  That seems to be a recipe for total disaster. Do

you wish to reply, Mr Byrne.

MR BYRNE:  Your Honour, there is only one matter that I

would address.	My learned friend has submitted
that this is not an appropriate vehicle in which to

resolve this issue. It is, in my submission, an

appropriate vehicle in the sense that the matter of

time at issue in this case is a very significant

period of time because of the length of the

sentence involved.

The only other matter that I would submit to

Your Honours is that this is a question that does

come up in the administration of justice, not

simply daily but many, many times a day and

sometimes many times a day in the very same court.

It is, in my submission, important that uniformity

in sentence be achieved and the most appropriate

way to do that is for this Court to resolve the

Dib 11 12/5/94

apparent conflict that exists. Those are my

submissions.

MASON CJ: Yes, thank you, Mr Byrne. The Court will give

its decision in this matter after the adjournment.

AT 12.35 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.00 PM:

MASON CJ:  The Court has come to the conclusion that the

proposed appeal would enjoy insufficient prospects

of success to warrant the grant of special leave.

The application is therefore refused.

AT 2.01 PM THE MATTER WAS ADJOURNED SINE DIE

Dib 12 12/5/94