Dickensen v The Queen

[1990] HCATrans 98

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M7 of 1990

B e t w e e n -

BRIAN JOHN DICKENSEN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

Dickens en

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MAY 1990, AT 2.03 PM

Copyright in the High Court of Australia

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MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR P.A. DUNN, for the applicant.

(instructed by Balmer & Associates)

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

learned friend, MR G.J.C. SILBERT, for the respondent.

(instructed by J.M. Buckley, Solicitor to the Directer

of Public Prosecutions)

MR BLACK:	May I hand to the Court an outline of our argument
but before doing so might I indicate this to the Court: the special leave points that we contend
exist in these cases exist, in a sense, at two
levels.  There is a very simple point as to whether
a matter was properly determined below and I will
take the Court to authority on that. There arc
points of general application and importance as to
what sense in methodology should be used where
multiple offences have been committed and the
principle of totality is involved.  There is a
third and I would have to say broader point
without demeaning the second one, which involves the whole question of sentencing; whether one should have a one-stage or two-stage approach in
any criminal sentencing process.  That argument
would only arise technically in reply in certain
circumstances and my friend will raise it to iustify what the learned sentencing judge did.
I have prepared an outline of argument in relation to that point. It is, in view of the
limited time available to the Court, in more
detail than the normal outline. It, in fact,
docs not exceed three pages but it is basically
the synthesis of the argument and if the Court
finds it convenient, I can hand that now to the
Court or not.
BRENNAN J:	I think it would be just as effective if you were

to hand it now, Mr Black.

MR BLACK:  May it please the Court. I did not want to be

presumptious because it only arises - - -

BRENNAN J:  No, unless Mr Flanagan has some observations to

make about that.

MR FLANAGAN:	No, I have no observations, Your Honour.
MR BLACK:	In that event, might I hand to the Court copies of the outline of the primary argument together with
what we have termed "Outline of Applicant's Argument on the One-Stage Approach Issue".

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Dickenscn

MR BLACK (continuing) : I am sorry, the Court has the complete set,

Your Honour, and as well the Court will have

a chart showing the way in which the various

sentences fell which it is hoped will save

some time.

BRENNAN J:  I think some of us have a sheet which contains

account number, description, date and particulars.

TOOHEY J:	And some of us do not.
MR BLACK:	I very much regret that, if the Court pleases.

I shall make it good.

BRENNAN J:  I think we probably have all different ones; the

naperwork seems to have come astray somewhere.

MR BLACK:  I do regret this, Your Honour. I am sorry,

Your Honours, it will be made good.

TOOHEY J:  We should each end up with three sets of

paperwork.

MR BLACK:  Yes, there should be three documents. There is

the outline of argument which is a double-spaced

document of four pages; there should be a

single-paged chart which I had hoped would make

my start clear; and there should be a closely

typed document of approximately three pages.

DAWSON J: There would need to be three documents.

MR BLACK:  Yes, Your Honour.

BRENNAN J: Well if you start off we will perhaps be able to

share sufficient of the - please proceed,

Mr Black. - .

MR BLACK:  I again apologise for the bad start but might I make

that good if I can by taking the Court briefly to

the background of this matter to illustrate how

these important - what we say are important - points

arise.

The applicant Dickensen, was sentenced by

Acting Chief Judge' O'Shea in the County Court for

multiple offences that included three armed robberies.

There was an appeal to the Court of Criminal Appeal on various grounds attacking the sentence and

particularly the sentence methodology adopted by

the learned primary judge.

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MR BLACK (continuing):  What the learned primary judge

considered was helpful and appropriate in the
circumstances was essentially this: fix the

proportion at sentence, that is to say the
sentence proportionate to the gravity of the offence

without taking into account factors personal to the

defendant - so, stage 1. The idea of that is that

that fixes an identified ceiling beyond which one

may not permissibly venture.

Stage 2 was then to assess the individual

circumstances of the applicant in the light of,

and reducing from, the stage 1 approach - the stage 1

sentence. What His Honour did in substance was to

say, if I can take the armed robbery as an example,

"12 years is the proportionate sentence for an armed

robbery". His Honour then took into account factors

personal to the applicant and fixed the overall

sentence of all the offences at 15 years maximum with

a minimum of 12. That was His Honour's approach:
two stages.

Unfortunately, or we would say "erroneously", in any event His Honour blurred the second stage

because, in the second stage, that is fixing the

appropriate offence, he also dealt with totality in

the one breath but, in any event, the case was

argued before the Court of Criminal Appeal on two

fundamental grounds as well as the manifestly

excessive grounds which, of course, does not trouble

this Court. The first ground was that the two-

stage approach to sentencing was not permissible -

it was wrong. The Full Court accepted that and

devoted a large part of their judgment to saying,

"Not only was the two-stage approach not something that the judge could do, he could not do it because

.it was impermissible; calculated to lead to error

and injustice; not countenanced by any authority and

contrary to all the practice in Victoria". So,

Their Honours set their judgment very strongly against the two-stage approach and, therefore, the

applicant was successful in his appeai in a

technical sense.

(Continued on page 5)

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DAWSON J: 

They did not say that, that you ought not to do it,

no~ that you can do it, but you do not have to do it.

MR BLACK: 

They did not say merely that you do not have to

do it.  They said you must not do it, because it

is calculated, in Their Honours' judgment,to

produce injustice in various ways.  Now, in this

Court, if we are called upon and it is raised

against us, we would seek to argue that that

approach was correct. It is what we argued below

and we cannot depart from that now and the third

of the documents handed up, the closely typed one,
is a condensation of the argument on that point.

But what Their Honours in the Full Court-in

the Court of Criminal Appeal then did was to
re-sentence the applicant, without any reference
to the second important point that formed the
basis of the applicant's appeal and the second

important point was that the learned primary judge

had gone wrong in the way he assessed the totality

of the sentences that he imposed upon the applicant.

What in fact had happened to the applicant was, as

I have indicated, he got 15 years maximum with a

minimum of 12, there being a considerable disparity,
we say too great a disparity, between the 15 year
maximum for all the offences and the minimum of 12

and too great a disparity between the overall

maximum and the maximum imposed in respect to the

most serious of the offences and worse than that,

it was contended below, His Honour did not disclose

his reasoning for so doing, but rather blurred

totality and the appropriate sentence in one part

of his judgment and that appears in our submission
quite clearly at page 12 of the application book

at about point 6 on the page.

BRENNAN J: 

We are concerned with the order of the Full Court,

are we not, of the Court of Criminal Appeal?

MR BLACK: 

Yes, Your Honour, I am explaining how it happened,

because our first substantial argument is that

the Court of Criminal Appeal simply did not deal

with an issue that was plainly tenable; was

important and it just was not dealt with at all

and on the current authority in this Court the

very short, though very specific special leave point,

is that it should go back. Now·theYe is authority

for that proposition.  I need spend very little

time on the argument. It does not raise points of
general principle, but the second, third and fourth

arguments do.

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Dickens en

BRENNAN J:  I am afraid I am not following you, Mr Black.

If the Court of Criminal Appeal had jurisdiction

to re-sentence, thep. the order that was made by that

court in re-sentencmg is the order to which we

must direct attention.

MR BLACK:	Yes, Your Honour, it is.
BRENNAN J:	If they did not have jurisdiction in the sense

that it was not an appropriate case for the exercise

of the power to re-sentence, then that must be

because the appeal to that court ought to have been

dismissed.

MR BLACK:  Your Honour, what happened was, they exercised

that power; they found an error in the court below;

they re-sentenced but in re-sentencing they did not

give any consideration at all, in our submission,

to the second of the applicant's two critical

arguments, that is, that there was an error in

relation to totality so that on the short - - -

BRENNAN J:	. That there was an error by whom?
MR BLACK:	By the learned primary judge in relation to

totality. They just did not deal with that point.

They expressly said they would not.

BRENNAN J:	Does it matter?
MR BLACK:	Well, it does, Your Honour, because the short special leave point is that an issue that they
should have dealt with that was, indeed, a critical
issue was not dealt with.
BRENNAN J:	But if it had been dealt with and favourably to

you, then again, the court would have re-sentenced.

MR BLACK:  Yes, but it would have re-sentenced - we would have

had what it was our right to have and that was a

appeal and that just did not occur. consideration of one of the important grounds of

BRENNAN J:  What is it that gives you that right when the

right carries no remedy?

MR BLACK:	The right is only to apply, I concede that.
BRENNAN J:	But it is a right to no remedy other than the

remedy you have got.

MR BLACK:  Your Honour, we would say it is a right to have that

remedy assessed in the light of all the matters

put before the Full Court and every tenable, sensible

ground of appeal considered and that right we did not

have.

C2T5/l/JH 6 10/5/90

Dickens en
BRENNAN J: Well, you proceed to put it, Mr Black, but I am

afraid I am not following you.

MR BLACK:	If Your Honour pleases. The essence of what we
say on this issue is as follows: before the Court
of.Criminal Appeal there were, on the applicant's
part, two fundamental arguments.  One was that the
learned primary judge, in adopting the two-stage approach to sentencing, that is to say, fixing the proportionate sentence and then working on that to
produce the appropriate sentence, was impermissible. We won that argument and the Full Court, therefore,
said it was necessary to re-sentence. The second
argument, equally important to the applicant, was that the primary judge had misconceived and '7is-'lpplicd the principle of totality- very important in the applicant's case because there were multiple
offences and there was a very heavy head sentence.
That second argument was not dealt with by the
Court of Criminal Appeal - - -
DAWSON J:	It is not really so much .... ~his
argument, you say that in l'.'c-sci::.t::c~1cin3 the Full Court
fell into error because it did not consider totalitv
and it could not rely on the sentence below because·
you were complaining about that.
MR BLACK:	Yes, that is right.

BRENNAN J: Well, that is a different problem.

MR BLACK:	Well, Your Honour, that is, I accept, the better way
of putting it but the end result - - -

TOOHEY J: Instead it takes you into a slightly different area.

It might rob your special leave point of some of its

strength if you put it that way because you arc

simply complaining now, not that an argument was not

dealt with by the Court of Criminal Appeal, but that

the Court of Criminal Appeal had erred in not approaching

the matter in a particular way.

MR BLACK:  Yes. We, in fact, Your Honour, in the outline deal

with it in both wavs. We deal with it in a - the

argument was not c;nsidcred,way; that is the first

argument which I will come to immediately and I

hope that will then make it completely clear, and

then we deal with in the second way, along the

lines that Your Honour Justice Dawson indicated

and there arc three complaints we make, each one

a complaint of principle having general importance
in relation to the way the Full Court must have
dealt with totality even though they gave no reasons

for it because they did re-sentence and they did

rcsentencc on the basis that there was a multiplicity

of offences. They did not just add them all up and

sentence for the arithmetical total.

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Dickcnsen

MR BLACK:	So might I go inrrnediately to the first complaint,
and that is that the Full Court did not deal
with the question of totality at all and that
emerges, in our submission, from page 69 of the application book at about point 7 of the page.
Their Honours - correction,at 63 of the application book at point 7 of the page - Their Honours having
devoted substantial time to the one-stage two-stage
argument, having found that there was a sentencing error in adopting that, considered the individual
applications before them and then at page 63, at
about point 3 of the page said this:

Having regard to the sentencing error

which we have earlier identified, it is

unnecessary for us to consider other grounds

of appeal on which the applicant relied.

Now, the other grounds of appeal on which the applicant

relied, it is plain, were the totality grounds, but

they were simply not considered. Their Honours

continued:

It is, however, necessary for us to consider

for ourselves the appropriateness of the

sentences imposed.	We agree with the
learned judge -

et cetera, and at about point 6 of the page:

Accordingly we do not think that different

sentences from those which his Honour intended

to pass should be passed.

and therefore the applicant was effectively re-sentenced

in the way in which the learned primary judge said he

would have re-sentenced the applicant had he gone about

it correctly. That fact, of itself, produced a

curiosity and an important one and that would be made

clear, if I could invite the Court to turn to the

chart, the Court will see by looking at the right-hand

column - or the second column from the right - that the
sentencing judge imposed originally a sentence of,

for example, 12 years on the first armed robbery.

In his report to the Court of Criminal Appeal he

said that that was in fact wrong - that was his

proportionate sentence - what he should have done,

His Honour said, was then to fix the appropriate

sentence, which he would have fixed at 9 years,

before going on to deal with totality. So that when

it was before the Full Court, the Full Court accepted

what the primary judge said he would have done;

sentenced accordingly but varied the degrees of

concurrency so as to produce the same effective head

sentence of 15 years with a 12-year minimum. Now,

by so doing, there was an inrrnediate disparity between

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Dickens en

what was thought appropriate to produce 15 years

in the first instance, and the individual sentences

which produced 15 years by the operation of the

cumulative aspects when it was re-done, and that was

something that the Full Court did not address which,

in our submission, compounds or fortifies the complaint

we make that a point of substance was not dealt with.

Now, although the Court has traditionally declined to grant special leave to appeal in a sentencing case unless there is some point of broad principle involved, in our submission, recent authority in this Court

indicates that that is not necessarily so any more

where a point that the court below was bound to deal

with is not, in fact, dealt with. And the first

authority to which we ~uld refer is the decision of this

Court in JONES, 166 CLR 409.

(Continued on page 10)

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Dickens en

MR BLACK (continuing):  JONES had a difference between this

case in that what happened in JONES was that the

Court of Criminal Appeal in Tasmania - it appears

quite clearly from the headnote - having quashed

a conviction and ordered a new trial did not then go

on to deal with another ground which, had it succeeded,

would have entitled the applicant to a verdict of

acquittal and the whole CJurt said at page 411 what

is in fact set out in the headnote at page 409,

and it was a simple statement that:

the duty of the court of criminal

appeal -

was -

to exercise its jurisdiction when that

jurisdiction is invoked -

and in substance that meant dealing with every ground

that was raised. Now, that was, of course, said in

the context of a ground which, if it was considered and succeeded, would have entitled the accused to

an acquittal, so it is a stronger case than this

but, in our submission -

TOOHEY J:  Well it is not only in context - that is the

statement of the Court, is it not?

MR BLACK:	Yes.
TOOHEY J:	About two-thirds of the way down the page 411:

unless the ground is plainly untenable

or the party raising it succeeds on

another ground.

That is what happened here, is it not?

MR BLACK:  Your Honour, we did not succeed on another ground open to us. that would have produced a beneficial effect fairly

DAWSON J:	You had a partial success?
MR BLACK:	Yes, but it was a partial success that leaves our

client in gaol for another -

DAWSON J:  Yes. You were entitled to argue for a whole

success?

MR BLACK: 

Indeed, Your Honour, yes, particularly because

every day of his liberty has to be justified having
exhausted his proper rights under the law.

TOOHEY J:  I do not understand that, I am afraid. The success

that you were entitled to have was to have your

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Di c 11:.e11scn

client re-sentenced, was it not? It is not like a

civil appeal in which you were seeking to have the

judgment set aside or an order for damages. This

was just - the most that you could hope for would
be that the sentence imposed below would be set
aside and the Court of Criminal Appeal would embark

upon a re-sentencing.

MR BLACK:  But re-sentencing according to the duty imposed

upon the court to consider all sensible arguments

put to it.

TOOHEY J:  True, bu~ arguments addressed to it in the

course of re-sentencing.

MR BLACK:  Yes, but if the court does not consider at all, as

it failed to do, an argument that would have produced

the complete success looked for, then, in our

submission, our argument is supported by JONES.

TOOHEY J:	Well, I must say I just do not see that.
DAWSON J:	Well, you put that your sentence should have been lower because of the totality principle?
MR BLACK:	Yes.
DAWSON J:	And it was not lower because they did not

consider it.

MR BLACK:  It was not - they did not consider it, although they

implicitly implied it, erroneously, as we say in the

next set of grounds.

BRENNAN J:  Well, that just comes to a question of whether or

not there was an error in principle in the re-sentencing.

MR BLACK:	I appreciate that I have not begun to persuade Your Honour and I will come to the other grounds
which we certainly will put separately, but before
departing from this very particular ground personal
because BAILEY was a sentencing case, and that is
to this applicant, might I refer the Court to BAILEY
reported - again a recent decision of the Court -
that is reported in (1988) 62 ALJR 319, and what
happened in BAILEY - again it is a bit different -
but what happened in BAILEY was that the convicted person claimed before the Court of Criminal Appeal
that he had been diagnosed as having the AIDS virus
and that, on one view, bore very substantially upon what should be done with him.

(Continued on page 12)

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1 1 10/5/90

Di c 1-:cnscn

MR BLACK (continuing):  The Court of Criminal Appeal simply

declined to grant leave for reasons which

Their Honours said they need not elaborate.

This Court, at page 320 of the report, in the

first column, at about letter C to D -particularly

at about D - said this:

The words used by their Honours suggest that,

leave to appeal being refused, the merits

of the appeal as the applicant's counsel had

propounded them had not received due

consideration, their Honours having abstained

from considering the relevance and weight to be

attached in the sentencing to the applicant's

state of health ..... see Smith.

And the Court granted special leave to appeal and sent it back. In our submission that case is

very close to this case. Your Honours made the

point earlier in the judgment that although often

these matters would simply be one of form,

whether leave is granted and then the application

dismissed or leave not granted having heard

argument, nevertheless, in this case, there was a

failure of substance and the case went back.

The final case to which we desire to make

reference again is not on all fours but underlines,

in our submission, the same principle and that

is the case of UGLE V REG, (1989) 64 ALJR 38.

What happened in UGLE was that it was a sexual

offence. There was a question as to the admissibility

of a supposedly prior consistent statement. The

way the matter went in the Court of Criminal Appeal
of Western Australia was such that no decision

was made on the effect of that improper admission

of evidence if, indeed, it was improper.

That appears at page 39 of the report in the second

column at the top of the page where two lines down

this Court says:

Thus only two members of the Court of Criminal

Appeal, each reaching a different conclusion, considered whether the improper admission of the

evidence occasioned a substantial miscarriage

of justice. In effect, there was no decision

by the Court of Criminal Appeal on what is the

central issue raised by the present application.

Then Your Honours deal with the matter a little further
and at about letter D, having pointed out that the
process of appeal in the court below was exhausted

the Court concluded:

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Of necessity, the case must attract the

grant of special leave to appeal to open the

way to that essential determination.

That is to say -whether there had been a miscarriage

of justice, and in those circumstances, special

leave was required under the last of the grounds
in the JUDICIARY ACT, a ground, which we concede,

is perhaps often invoked and rarely demonstrated,

but this is such a case, in our submission.

Those argument which we do press raise no point

of importance to anybody other than Mr Dickensen
to whom they are very important indeed because he

did not receive the consideration that, in our

submission, was his right in respect of arguments

that were important.

Might I now leave that and go to the grounds

that, in our submission, do raise questions of substantial general importance. Might I again

emphasize that the court below was concentrating

its intention on my learned predecessor's first

argument, that was that the two-stage approach

was completely inappropriate and inpermissible.

And having rejected that two-stage approach the

reasons that I will come to if appropriate,'

all the court did was to say, as I pointed out at

page 63, that the other grounds were unnecessary to

consider but the court then went on to sentence and sentence

only on the basis of some application on the
principle of totality because the sentences were
not consecutive. There were two lots of cumulative

sentences which overlapped as the chart showed.

(Continued on page 14)

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Dickensen

MR BLACK (continuing): Their Honours did that in the context

of rejecting what Their Honours had described at, for example, page 51 of the application book, as:

artificial processes or methods -

page 51, at about point 4 of the page. Their Honours

concluded the consideration of the one-stage	two-stage
argument by concluding:

We think that the adoption of such a process

is calculated to lead to error and injustice.

Until Parliament or the High Court indicates
to the contrary we are clearly of the

opinion that artificial processes or methods

should not be adopted in Victoria.

There are other passages to broadly the same

effect throughout the judgment - that is, the

thread of the judgment that it is a denunciation -

perhaps can use the term it is too strong - it

is a rejection of a staged approach in the process of sentencing. Now, the problem with that, in our

submission, is that if in that context the Court

sentences, as it di4 and a question of totality

arises, the only conclusion that we say should be

drawn is that there is effectively a one-stage

process to the whole issue including totality and

it is our respectful submission that that is wrong

because it confuses two aspects of sentencing.

If that be said to be a somewhat literal and

technical view of what the learned judges of the

Court of Criminal Appeal did, then we would answer

in this way: it is no~ because it is what they did,

and Their Honours did it in the context of the case

that must be, if it remains unchallenged, a SAMUEL

case in sentencing in Victoria. This is the

Court of Criminal Appeal in Victoria saying what

must not be done and conversely, therefore, what

should be done. What should be done, in

Their Honours' judgment, is the - if I may use the expression from the earlier case of WILLISCROFT -

"intuitive synthesis" method whereby a judge looks at all the relevant factors and the judicial mind,

by intuitive synthesis, takes into account everything,

weighs it and produces a just result. A method for

which, if we reach that point in the argument, we

contend is correct and my learned friend,

Mr Flanagan, would contend, if it reaches that point,

may be correct but is not the only permissible

method.

So, it is in that context that the re-sentencing

of the applicant, Dickensen, in our submission,
demonstrates error and it is an error of basic

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principle. To make that point good, we desire to

refer briefly to two of the - at least two - of the
leading cases in this Court on the principle of

totality._ Might I first take the Court to the

decision in MILL V REG, (1988) 166 CLR particularly

at page 63, a judgment of the whole court. Now,

Mill was a case in which the court had to consider

a person who had offended three times: twice in

Victoria - two armed robberies - and then an armed

robbery a month later in Queensland.

He was caught; taken to Victoria; sentenced

there and then, having been released on parole

after some eight years, he was taken to Queensland

and sentenced there again and the question was:

how does the principle of totality work across

jurisdictional boundaries? It is a question that

the court solved and the solution to the question
bears very much on this case in another limb of

the argument to which I will come to.

(Continued on page 16)

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Dickens en

MR BLACK (continuing):  But at the bottom of 62 of the

judgment, the court, and it was a court of five,

identified the totality principle by reference to

Mr Thomas's book on sentencing and it did so

particularly at the top of page 63 in these terms:

The effect of the totality principle is to require a sentencer who has passed a series

of sentences, each properly calculated in

relation to the offence for which it is

imposed and each properly made consecutive

et cetera -

to review the aggregate -

Now, the key words -I am not seeking to read the

text of the learneaauthor as a statute, but the

key words that,in our submission,encapsulate the

principle, are these, in the third line:

each properly calculated in relation to the

offence for which it is imposed -

The court then having cited more from the passage referred to Mr Ruby's book and the Canadian book

on sentencing and then expressed itself in terms

that again indicate that the totality principle

involves a second stage of standing back and

looking at what has already been properly fixed

and the Court indicated the two ways in which that

might be done, the preferable way, of course, as

the Court pointed out, being to use concurrency

rather than to adjust the individual sentences and there

are obviously arguments to support that view.

so thatwas what happened in MILL and then a little

later in GRIFFITHS V REG,(1989) 63 ALJR 595, the

Court had to consider totality in a rather different

context. It was the context of a New South Wales

statute that required certain limits to the

non-parole period, but in the course of dealing

with it, at least two members of the Court,

Your Honours Justices Gaudron and McHugh at page 594,

colUIPn 2, letter G of the report, discussed totality

in these terms- just below letter G:

It is well established that in sentencing

a person in respect of multiple offences

regard must be had to the total effect of the

sentence on the offender.

I stress that because it arises in a subsequent

part of the argument,and then Your Honours continue:

This may be done through the imposition of

consecutive sentences of reduced length

with or without other sentences -

C2Tll/l/CM	16	MR BLACK, QC 10/5/90
Dickens en

et cetera,and then there is a reference to

TICHY's case, in which Chief Justice King said:

The essential thing to be borne in

mind is that if the sentences are made

consecutive there must be no overlapping of

the factors brought into account in determining

the length of each sentence

so that again, in our submission, one finds as,

in our very respectful submission, one would

respect to find, that the totality principle
involves a second and discrete stage in the

sentencing process no matter what is the correctness

of the one-stage/two-stage approach that precedes

it to reach the "appropriate" individual sentence

and it is our submission the

Court of Criminal Appeal did not do that. They

simply put the whole thing into one approach and in

so doing were not correctly applying the principle

of totality and were doing so in the context of

the case that will, if not reviewed, set the

pattern for sentencing on these issues in Victoria

indefinately.

TOOHEY J: In deciding, Mr Black, that certain sentences would

be concurrent and certain sentences would be

cumulative upon others, does that not indicate that

the court is looking, as it were, at the end result

of the whole sentencing process.

(Continued on page 18)

C2Tll/2/CM	17	"MR. BLACK, QC 10/5/90
Dickens en

MR BLACK:  It must have looked at the end result,

Your Honour, because - yes, indeed, because it by a

different route and by different arithmetic

produced the same maximum that the learned
sentencing judge produced but in doing so the

process of producing the just result and, in our

process is, in the substance of the Court of Criminal

submission, that is erroneous. There should be,

at least, a separate stage for the consideration

of totality.

There are other cases - in view of the limited

time available if I may simply refer the Court to

them - that, in our submission, support the same

approach. One of them is HOLDER, (1983) 3 NSWLR 245,

particularly at page 260, a decision of the

New South Wales Court of Criminal Appeal, and one

of the earlier South Australian authorities that

formed the basis of this Court's decision in MILL

and the recognition of totality in GRIFFITHS' case,

a decision of REG V SMITH, 32 SASR 219 where,

at page 220, Justice Mitchell refers to the English

approach of in the end standing back and asking
whether what the person has received was "too much".

Now, that standing back and asking if it is too

much approach again, in our submission, requires

a separate analysis of individual sentences already

appropriately set.

Your Honour the learned presiding Judge

dealt with this matter also a little earlier in the

case of RYAN V REG, 149 CLR 1 and Your Honour's
observations were at pages 22 to 23 of the judgment

again indicating, in our respectful submission, that

a separate stage must be involved in a consideration

of the issue of totality.

DAWSON J:  But in fixing concurrency, did they not have to

approach it in a second stage?

MR BLACK: 

They should have, Your Honour.

DAWSON J: 

Well, they did fix concurrency.

MR BLACK: 

They fixed concurrency but there is no indication

that anything was done other than to look at the
whole cir~umstances of this applicant as the court

saw him and to say, "What is appropriate at the

end of the day for this person?", particularly is

that is so in the light of a judgment which has as

its major theme a rejection of compartmentalized

approach to sentencing.  So, therefore, we say

that when the court did re-sentence, it must have

re-sentenced on, as it were, an extended one-stage
approach which is erroneous.

C0 12/1/JH	18	10/5/90
Dicken sen

DAWSON J:  But you can only fix concurrency in two stages,

can you not? I mean, if they still have to tfiink

of the appropriate sentences, look at the total

and then - - -

MR BLACK:  Your Honour, you must, in order to produce any

result at all, indeed, Your Honour, produce a figure

benause otherwise you have nothing to make it
concurrent with. There have to be figures in the
mind of the judge but what, in our respectful

submission, the Court of Criminal Appeal did was to, as it were, put all the figures on the table

at the one time to produce a final result rather in
the way that Their Honours consider is the only
appropriate way to fix the ultimate individual

sentence.

TOOHEY J:  But it seems to me, Mr Black, that you are using

two-stage approach in two quite different senses

and I take it you are corning to the other sense of

two-stage later.

MR BLACK:	Yes, I am, Your Honour.
TOOHEY J:	But in a situation like this, it may not be inappropriate, as it were, to finesse the two stages in this sense, that if the Court of Criminal Appeal
says, "There appears to have been some sort of error on the part of the sentencing judge, we correct that error but, overall, 15 years seems to us to be an
appropriate sentence for these various offences",
does the court have to go through, in that situation -
being a court of review and not a primary judge - does it have to go through the situation of the formulae of saying, "Well, we look at each one and then we look at the end result?".

(Continued on page 20)

C2Tl2/2/JH	19	10/5/90
Dickens en

MR BLACK:	Your Honour, we are endeavouring not to put this argument in any pedantic way. If it were merely
pedantic, it would have no merit before this ~ourt
but what we are saying is that accepting what
Your Honour says, nevertheless, the Full Court
did not take the step encapsulated in what
Your Honour Justice Toohey put to me that there
was some sort of separate consideration of
totality and it does not have to be very much
but all this occurred in the context of what we have termed the one-stage approach to sentencing
and it flavours the words used by the learned
judges. That, Your Honour, is, we hope, the non-pedantic answer to Your Honour's question.
BRENNAN J:	Mr Blac 1~., your chart provides us with these

head sentences fixed by the Court of Criminal

Appea 1.

MR BLACK:	Yes.
BRENNAN J:	Could you direct me to the page in the appeal book

where those appear?

MR BLACK: Yes, indeed, Your Honour. It is at 103 to 104

I believe. At page 103, Their Honours, in the

middle of the page, refer to what the learned orimary

judge said in his report to the court- he would have

done had he gone about the matter correctly.

BRENNAN J:	Yes.
MR BLACK:	There is an error in that which is reproduced.
The theft of the car, count 4, in fact, was only
one year but that is neither here nor there. That
is what the learned primary judge said he wanted to
do.  Then, at 104, Their Honours say at about point 7
of the page:

Save to the extent necessary to correct the

record we shall therefore dismiss Dickensen's

application.

And that is it. Their Honours then go on to deal

with West.

BRENNAN J: Is there a formal order of the court?

MR BLACK: 

I do not believe so, Your Honour.

BRENNAN J: 

That means, does it not, and I am sure your chart

is right, that the court consciously altered the
sentences imposed from 12 years to nine; six years

to four and so forth, and then made cumulative the

last two with t~c ~revious five.

C2Tl3/l/SH	20	10/5/90
Dickenson

MR BLACK:  Yes.

BRENNAN J: Well, now, docs that not indicate that,

f~~st, the court went about the business of

determining the appropriate sentence for each

offence in accordance with what the learned

sentencing judge would have done had he gone about

it properly and they thought that that was right

and then, instead of making them all cumulative,

they said, having regard to the ½i~h dc~rcc of

criminality; that the offences were planned and
executed with considerable thoroughness. the age,
the plea of guilty at an early stage, ;n those
circumstances they thought that 15, with a minimum

of 12 was right?

MR BLACK:	Your Honour, indeed, but the problem with that, in
our respectful submission, is that that is the same
error that was complained about with the learned
sentencing judge; it is all, as it were, in the
one breath. The learned sentencing judge, when fixing his "appropriate" sentence, having determined
the proportionate sentence, then dealt with totality and appropriateness as if they were almost the same concept.

(Continued on page 22)

C2Tl3/2/SH	21	10/5/90
Dickens en

BRENNAN J: Well, that may be so in the case

of a sentencing judge, but at the moment I do not

see that you have established the foundation

for the submission that there is a totality error

in the approach of the Court of Criminal Appeal.

MR BLACK:	Your Honour, the totality error is essentially,
in our submission, to be inferred from two things:
one, that the court was at pains to reject what it described as an artificial process. It was at pains to say that the sentencing process, although not directing itself to totality at this point, but the sentencing process should be an overall one-stage thing.

BRENNAN J: In that part though, in its context, Their Honours

were surely speaking about the sentencing process

with respect to a single offence?

MR BLACK:	Indeed, Your Honour, but the inference of error is to be drawn,in our submission,from the fact that then
having gone on to re-sentence in that context, and
having regard to the four or five lines that
Their Honours use,  they were effectively looking at
the whole of the process as intellectually one
process.  Now, technically of course that they cannot
be completely correct because one has to fix figures
before one can make anything cumulative or consecutive, but as a separate intellectual exercise standing back
and looking at the appropriate sentences and then
at the cumulative sentences, in our submission, that was not done and what really the decision appears to stand for is that one can look at everything and
produce, as it were, the final result in one process.
That is the complaint.

BRENNAN J: Well, it means that at the end of the day you have

got to produce a sentence which,in its totality,

is right.

MR BLACK:	Yes, Your Honour, indeed.
BRENNAN J:	Is not your hypothesis as to the way in which the

Court of Criminal Appeal went about it undermine,

to an ext:ent, by the fact that Their Honours chose

to reduce the head sentences which have been imposed

by the learned sentencing judge to the figures which

are beyond page 103, each of them respectively to those

figures?

MR BLACK:	Yes, but with respect, only slightly erroded,
Your Honour, not undermined because the totality
in the end was exactly the same as the primary judge's totality without, as it were, any standing back and saying whether the new figures that the court

C2Tl4/l/JL	22	10/5/90
Dickens en

accepted, the nine years and so forth, ought to

then be looked at in relation to the total head

sentence, now proportionately much longer of

15 years. It was all done, as it were, in one go.

TOOHEY J:	But the court achieved that, did it not, by the order
it made that certain sentences be cumulative upon
others?
MR BLACK:	Yes, it did, but the result was precisely the same
and there was no standing back, in our submission, or no evident standing back in the light of the
newly arrived at figures to see what totality,as
a principle separately to be applied, required.
That, if the Court pleases, is the point. Its foundation must be demonstration of satisfaction of the Court
that that is what the Full Court did. If that foundation
is established then it is our respectful submission
context of this case, that is the inference that strongly is to be drawn from what the court did.
the rest flows and all we can say is, that in the deal, or articulate their reasons for doing with
the totality questions, gives rise to the third
argument which is likewise it is submitted an argument
of general importance and that is that the court did
not, in our submission, eliminate from its
consideration the applicant's prior convictions
when re-sentencing him to the maximum of 15, minimum
of 12 years.

(Continued on page 24)

C2Tl4/2/JL	23	10/5/90
Dickens en

MR BLACK (continuing):  In a sense what we say about the

third argument supports the foundation for the

second.	What happened was that the applicant did
have prior convictions.	He had bad prior convictions

and many of them, although the criminal behaviour
stopped in 1982 but before then he had prior

convictions going back to the age of 11. He

started off stealing a bicycle for which he was

promptly sent off to some sort of a home. These

prior convictions can work very much two ways, but

that is perhaps not a matter for this court.

It appears at page 11, he had 42 prior convictions

on six separate occasions and there were some nasty

ones amongst them. There is no doubt about that.

After his release from prison in April 1982 until
he committed these offences, the learned sentencing

judge found he did not engage in any further criminal behaviour and said other favourable things about him;

but the fact is that he did have prior convictions

and they were serious ones. His co-accused, West,

had no previous convictions and the fact that the

court took those into account - the conclusion that

the court took those into account emerges very clearly

again from page 63 of the application book which is

the actual sentencing of the applicant.

I should indicate I previously, I think, may

have confused the Court by referring to a second

reproduction of the Court of Criminal Appeal's

judgment which appears at page 74, and I will make

no further reference to that; but what appears at the

top of page 63 is that he had these prior convictions.

He stands in contrast with West at the bottom of
page 63 who had none and, of course, the result of
the two men was, in the end, after the Court of

Criminal Appeal had dealt with the matter, dramatically

different. West, the younger man with no prior

convictions and, true it is, on fewer counts,

emerged with five years with a minimum of three;

Dickensen emerged with 15 years with a minimum of

12 years.

Now, what we say is that if one looks at what

the Court of Criminal Appeal did at page 63, there

is no elimination of the prior convictions in

applying the principle of totality and it is our
submission that as a matter of broad principle the
prior convictions of a person should be put to one
side when the separate assessment is made of the

totality of the sentence, and we say this for two

reasons; first, at least a purpose of the principle

of totality is mitigatory, you stand back and you ask, "What is the effect of this sentence on this per son?", and that, indeed, is what Your Honours

Justices Gaudron and McHugh said in GRIFFITHS at

the page that I made previous reference to.

C2T15/l/HS	24	10/5/90
Dickensen

So that the focus is, at least in part, on the

effect upon the individual. Now, that individual,

if the process is conducted, in our submission,

correctly, has had his prior convictions taken into

account at least twice, the first, of course, when

he was convicted of them - he had served his

sentence, whatever it was - secondly, within the

limits set by the law as expounded in the Court,

when he is sentenced for the subsequent offence,

the prior convictions cannot make the sentence
more than what is proportionate of the gravity of

the offence - they may avoid mitigation, and so

forth.

McHUGH J:  Is that right? I thought in VEEN's case

the Court rejected that notion.

BRENNAN J:  The passage is reproduced at page 45 of the

present appeal book.

MR BLACK:	In VEEN (NO. 2)?
BRENNAN J:	Yes.
MR BLACK:	The Court, as we would have read it, did not reject

the notion that you could accede what was proportionate.

BRENNAN J:  That is right, it could accede what was

proportionate but the fact that somebody had a

record and was demonstrating a continued contempt

for the law and for society was a factor which was

relevant to determining what the proportionate

sentence was.

(Continued on page 26)

C2T15/2/HS	25	10/5/90
Dickensen

MR BLACK:  Yes, Your Honour, I did not mean to say anything

different to that.

DAWSON J: That supports your argument in fact.

MR BLACK:  Yes, I must have misexpressed myself.

His prior convictions within those limits and up to

that limit may be taken into account and will be.

Once that has been done, he has, as it were,

suffered detriment, no doubt appropriate detriment,

from them twice. Then, when one stands back and

asks if all these were consecutive, are they too much,

and what is the appropriate sentence for the

whole episode or episodes of criminality,

in our submission, it is then foreign to the concept

to make him suffer that detriment again -

McHUGH J:  But you do not, do you? When you consider the notional

sentence for the purpose of the nrinciple of

totality you have to take into account the whole

episode of criminality and all the other factors

in determining what would be an appropriate sentence

based on the totality princinle.

MR BLACK:  But, Your Honour, what we would say is that logically

having set a series of appropriate sentences,

whatever they are, then the person's record has,
as it were, exhausted its relevance because

it produces the very figures that then one looks at

to see what effect they will have in the aggregate

upon him, and the process of totality is essentially

a mitigatory process.

McHUGH J:  Not merely on him but having regard to the criminal

enterprise, the totality of his criminality and

every other relevant factor, and then you say, "WelJ.,

if I had given him 10 and 10, if I give him 20,

that is too much, but if on a total position, 15

is proper so I will give him 12 on one and 10 on one

and five on another, cumulative".

TOOHEY J: There is another aspect too, Mr Black, that these

offences have not been made totally cumulative

upon each other and the offences that were made

concurrent, the first five, at least the first four,

appear to be quite unrelated to each other.

MR BLACK:	Yes, that is so.
TOOHEY J:	They are different times and different events so there

could have been a strong argument if you were simply

totting up sentences for treating those all as

warranting cumulative sentences. The fact that that

was not done suggests that there has been a

reasonably careful examination of the total effect

of the sentences on all these offences.

C2Tl6/l/LW	26	10/5/90
Dickens en

MR BLACK:  Your Honour, as to the first part of what Your Honour

said to me, yes that is so. The best that can be said - and in a sense it is not too bad - is that

having tried and really tried remarkably well,

on the learned judge's findings and on the material
before him,to lead a lawful life after 25 years
in gaol starting this first encounter for stealing

a bicycle as a little boy at the age of 11, having

done all that and behaved himself very well in

gaol, having kept out of trouble for some 7 or 8

years, he then goes back into the criminal world

in what, although temporarily distinct offences,

could be regarded as one break-out as it were.

(Continued on page 28)

C2Tl6/2/LW	27	10/5/90
Dickens en

McHUGH J: Well, I mean, he left Sydney and went down to

Melbourne in October and goes back down again in

December and back again in February.

MR BLACK:  I cannot answer that, Your Honour, except to say

that viewed as a break-away from what was

evidently a reformed life and viewed as to the
reason why these offences occurred - and that was

in the plea material, the financial problems

and so forth - then they are not as severely

distinct as might otherwise be the case. I mean,

Mill went up to Queensland and committed another

bank robbery and this Court indicated what might be the appropriate sentence there and it was not

cumulative.

TOOHEY J:  But these arguments might well have considerable

force before the Court of Criminal Appeal. They

do not at the moment, to me, seem to bear very

much on the question of the argument that the

Court of Criminal Appeal did not stand off and look

at the total effect of the sentences that were

imposed.

MR BLACK:  Your Honour, our problem - and it is the problem

that we seek to raise in the first of the grounds -

is that these arguments were put -

no doubt they were put forcefully - but they were

totally overshadowed by the great principle that

the court was prepared to make. Now, that inured

to the detriment of Mr Dickensen and that is my

problem in that I have to argue these points as

a matter of inference from what the Full Court

did when they did not say anything about it.

I acknowledge that is the problem but, we would

submit, the inferences are strong enough to indicate

what the court did and if I might turn to the last

argument which -

McHUGH J: Just before you do. Is there some specific

provision in the Victorian PENALTIES AND SENTENCING

ACT which requires the judge to make all the

sentences concurrent?

MR BLACK:  Yes, there is and I am coming to that.

It is 15(1). It is a statutory -

McHUGH J:  Unless he makes a further order.

MR BLACK: It is, yes. It is, in effect, a statutory

presumption of concurrency. It reads as follows,

Your Honours:

15(1) Notwithstanding anything to the contrary

in any Act, every sentence of imprisonment

imposed on a person by a court or judge shall,

C2Tl7/l/DR	28	10/5/90
Dickens en

unless otherwise directed by the court or

judge at the time of pronouncing the sentence,
be, as from the date of its commencement,
served concurrently with any uncompleted

sentence or sentences of imprisonment imposed

on that person, whether previously to or at

the time the relevant sentence was imposed. That section really leads to our final argument on

this limb which is that the Full Court misapplied
the principle of totality because that principle

does have certain normal requirements as to the

relationship between the head sentence and the most

severe of the individual sentences and section 15(1)

can either come at the beginning or the end of the

argument but it shows that the Parliament has not

shrunk from saying that even regarding coming down

to Sydney, going back and coming down again as

quite separate acts of criminality nevertheless,

in Victoria, one starts off with the presumption

that there is concurrency and the section is quite

general.

Now, against that background, we submit that

the principle of totality requires, at least

ordinarily, that the aggregate sentence should not

be longer than the upper limit of the normal

bracket of sentences for the category of cases in

which the most serious offence would be placed.

To support that proposition, we desire to make reference to Mr Thomas's book on sentencing. It

is a at a chapter that has been cited with

approval in this Court, although not at this

particular point. The Court, I think, would have

page 56 to 62 of the 1979 edition.

(Continued on page 30)

C2Tl7/2/DR	29	10/5/90
Dickensen

MR BLACK (continuing):  That work which affects a comprehensive

analysis of the subject deals with the totality

principle relevantly at two places. At page 57,

towards the bottom of the page, the learned author

says that:

A cumulative sentence may offend the totalitv

principle if the aggregate sentence is

substantially above the normal level of

sentences for the most serious of the

individual offences involved -

and then he goes on to say or if it, in effect,

imposes "a crushing sentence".	He returns to
that - perhaps I should read on -

or if its effect is to impose on the offender

"a crushing sentence" not in keeping with his

record and prospects. The first limb of the

principle can be seen as an extension of the

central principle of proportionality between

offence and sentence, while the second represents

an extension of the practice of mitigation.

He returns to that particular point at page 59, about

four lines from the top of the page, where he savs:

The essscnce of the principle -

that is to say, the totality principle

appears to be that the aggregate sentence should not be longer than the upper limit of the normal

bracket of sentences for the category of cases

in which the most serious offence committed

would be placed.

He then goes on to point out that would allow you to exceed certain limits. It does not totally

confine the scntencer.	To find authority to support
the learned author's conclusions is worse than not
easy.	We cannot find authority that -

McHUGH J:	I am not surprised about that because he may have
a bout of criminality which involves offences of
different nature.  They may be kidnapping and rape
and assault.
MR BLACK:	Yes.  Your Honour, that is why in our outline, which
tries to synthesize or put the argument in its
shortest possible but cogent way, we have said the
principle requires at least ordinarily because there
have to be, we would concede, circumstances where
it just would not seem to fit, given the purposes
of totality and so forth so we concede that
qualification but as a general approach and,

C2Tl8/l/SH	30	10/5/90
Dickenson

particularly in the light of the statutory presumption

in Victoria, we would submit that on the "authoritv"

of Mr Thomas's work and what we would say to be th~

essential good sense and fairness of the notion, that

is a sound working guide. Now, that just was not

applied in this case and to found the argument more
closely in authority in this country, we desire to

refer the Court to what it actually did in the case
of MILL because MILL was dealt with by this Court

in a way that we would submit is consistent with

Mr Thomas's approach. The Court will recall that the facts in

MILL V REG, (1986) 166 CLR 59, were essentially that

Mill had gone to Victoria; he had committed two

armed robberies at the end of 1979 for which he had

been sentenced to 10 years with a minimum of eight.

The actual sentences appear at page 61 of the report

in the judgment of the whole Court. So, he was 38.

He had a bad criminal record with a prior conviction

for armed robbery for which he had already received

eight years with a minimum of six and he had received

10 with an eight minimum for his two Victorian

offences. Then, the next month, obviously before

he was caught, he went up to Queensland and did it

again. He was sentenced in Victoria, served his eight years in Victoria; came up for sentence in

Queensland and it appears at page 62 that what

happened to him before the Queensland court was

that he received another eight years but with a

three year minimum.

(Continued on page 32)

C2Tl8/2/SH	31	10/5/90
Dickens en

MR BLACK (continuing): This Court considered that to

reveal an error in principle and although, of

course, because it sent the matter back to

Queensland it did not and could not sentence

itself, it did indicate that way in which such
a task might be approached and it did so, of

course, with, if I may say so with great respect, the

authority of five members of this Court.	At
the bottom of 66 the Court said:

In our opinion, the proper approach

which his Honour should have taken was to

ask what would be likely to have been the

effective head sentence imposed if the applicant

had committed all three offences of armed

robbery in one jurisdiction and had been

sentenced at one time. It is most unlikely

that the applicant would have been sentenced

to eight years on the first count, eight

years with six years of it concurrent on the

second count, and eight years cumulative on

the third count, making an aggregate head sentence of eighteen years. Yet that, it

.-" seems to us, is the practical effect of the
sentence -

et cetera.

On the other hand, the notional exercise which

we have just described tends towards a
conclusion that a sentencing court dealing

with all three offences at the same time would

have dealt with the third offence in a

similar manner to that adopted when dealing

with the second, namely, by imposing a

sentence of eight years with five or six years
of it concurrent with the earlier sentences.

The aggregate head sentence in that event

would have been either twelve or thirteen years.

But most importantly the Court then went on to say:	An appropriate non-parole period may well not have
been much more than the eight years actually imposed by the Victorian court.

We submit that the particular focus should be on

the non-parole period, because it is the non-parold
period that perhaps attaches most closely to the

personal circumstances, the prospects of rehabilitation

and so forth, of the individual, which is something

the totality principle is directed to. The individual

bank owner, or householder who has been robbed, can

see that a severe sentence was passed in relation to

an individual offence. If the concurrency method

C2Tl9/l/CM	32	MR BLACK, QC 10/5/90
Dickens en

of then sorting out how you deal with all the

offences, the preferred method in MILLS's case

by this Court is adopted, then there is a

capacity to, as it were, satisfy all the requirements

of sentencing, but by focussing on the minimum,

as this Court did in MILLS, and not making the

minimum disproportionate to the greatest maximum,

then an appropriate measure of justice can be done

to the individual who, in this case at the age

of 51, is not going to be looking at his 50th

birthday with the enthusiasm of some of us. He

will be very conscious of his mortality. It is

a long time for a person of 50 and a time that

free people cannot imagine.

Now by adopting Mr Thomas's principle as

reflecting, if I may use the expression, justice

and good sense and has been consistent with what

this Court actually did in MILL when it was

confronted with the problem and saying what it

thought might well be the solution, in our submission,

error is revealed in the Court of Criminal Appeal.

TOOHEY J:	Mr Black, what is the position in Victoria with
remissions?

MR BLACK: Remissions, Your Honour, as I understand it, is that

a third is taken away from the sentence and that

operates on the minimum.

TOOHEY J:	Both on the non-parole period and the head sentence?
MR BLACK:	Yes, it does, except in murder, Your Honour. Oh yes,
and I am reminded on this occasion on my left, no
doubt with the agreement from my right, that you do
not have to get it.  The parole board has to - - -
TOOHEY J:	Oh no, I appreciate that, but there is statutory
provision for remission?

MR BLACK:	Yes, that is so, which is, in our respectful submission,
only a small comfort for an individual applicant
whose sentencing has not accorded to the principles
which, we say, are established. (Continued on page 34)

C2Tl9/2/CM 33 MR BLACK, QC 10/5/90

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MR BLACK (continuing):  Those are the arguments that we

put in their two categories; one very specific to

this case, t'he second set of arguments of

general application but concededly complicated
in their presentation by the way in which the

Full Court found it unnecessary to deal with those arguments in the first place. There is a further

issue of equal, perhaps greater, public importance
that this case gives rise to and that is the very
issue that we won in the Court of Criminal Appeal,

the one-stage, two-stage approach and, in our submission, the Full Court was correct in its

decision. My learned friend - and I have to say

this with respect and without impertinence - if

called upon would, we understand, argue that the

Full Court was in error and, therefore, that the learned primary judge was right in one case

adopting and the other stage rejecting a two-stage
approach. Were that to be argued, and were that to

have, as it might, an effect on our ultimate result

in this Court, then we would desire to argue - and

we have essentially submitted the argument to writing

but we would wish to elaborate upon it shortly -

that the Full Court in so far as the one-stage

approach extends to the point of determining the

appropriate sentence, there are powerful reasons why

the Full Court was, in fact, correct.

The error, in our submission, is then extending

that one-stage approach to the final consideration

in the case of multiple offences.

BRENNAN J:  That is a problem you do not have to address at

this stage.

MR BLACK;	If Your Honour pleases.
DAWSON J:	Except to the extent you said that it comes into the

very area you are complaining about.

MR BLACK:  Yes, it does.

DAWSON J:	You cannot avoid it.
MR BLACK:	It cannot be avoided and the essential problem of

the one-stage approach creeping as it does, in our

submission, into our situation is that it creates an

illusion of certainty where no absolute right answer

is ever possible and by so doing, it creates a

bench-mark which, if erroneous, will infect

everything else that uses the bench-mark as its
starting point and, in our submission, in the ~ery nature

of things, given the undeniable discretions, the

undeniable and infinite variabilities and waitings

that come into the sentencing process, there is, on

analysis - this is in our written argument - ultimately

C2T20/l/JH	34	10/5/90
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no substitute for the approach taken in Victoria

which is the approach of considering everything

and using the judge's intuitive synthesis to put
it all into the right context. That does not mean

that there is any danger at all of the

proportionality ceiling ever being exceeded

because one can always identify where roughly with

reasonable accuracy it would be and stand

back and look at a sentence. It does not mean that

there will be disorder in sentencing because there
is not any way in Victoria, usually, where the

one-stage approach is applied. There are no

advantages in the two-stage method except an

illusion of certainty. There are inherent

disadvantages in the method because it provides an

artificial starting point which can in the nature

of things never have any validity and the examples

in the written outline of possible injustice go

both ways; they can be too lenient and too severe

and we have sought to make those points in the

outline but, as Your Honour has pointed out, at this

stage it does not arise.

Those are our submissions, if the Court

pleases.

BRENNAN J:  Thank you, Mr Solicitor. The Court will adjourn

for a short time to consider the course which

it should take.

T20	AT 3.25 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.42 PM:

BRENNAN J:	We need not trouble you, Mr Flanagan.
MR FLANAGAN: If the Court pleases.
BRENNAN J:	The application for special leave to appeal is

founded on three submissions: the first is that the Court of Criminal Appeal failed to take into account or properly to apply the principle of

totality when their Honours were re-sentencing

the applicant after setting aside the sentences

first imposed. However, the reasons for judgment

of the Court of Criminal Appeal and the orders
actually made, which expressly excepted the case
from the operation of section 15(1) of the PENALTIES
AND SENTENCES ACT 1985 (Victoria) do not support the
inference that the Court of Criminal Appeal failed

to take the principle of totality into account.

C2T21/1/JH	35	10/6/90
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The second submission is that the Court of

Criminal Appeal did not deal with a ground of appeal

against the original sentences, namely, failure to

apply the totality principle. But the Court of

Criminal Appeal did set aside the original sentences
and, as this Court noted in JONES V R, 166 CLR 409,

at page 411, one of the bases on which an appellate

court is relieved from the need to consider a ground
of appeal, namely, that the party raising it succeeds
on another ground, was applicable here.

Thirdly, it is submitted that the non-parole

period fixed by the Court of Criminal Appeal is
indicative of a misapplication of the totality

principle, but no misapplication can be inferred

from the sentence imposed in the circumstances of

this case.

Overall, it is submitted that the total sentence

imposed was in truth the product of a single exercise
of a sentencing discretion. This is, in reality,
another way of advancing the first submission and

fails for the same reason.

For those reasons, the application for special

leave is refused. What I have said, and the order

that I have pronounced, is the order of the Court by

a majority.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

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