Dimozantos v The Queen

[1993] HCATrans 227

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M93 of 1993

B e t w e e n -

ANGELO STEPHEN DIMOZANTOS

Applicant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Dimozantos(2) 1 13/8/93

AT CANBERRA ON FRIDAY, 13 AUGUST 1993, AT 11.22 AM

Copyright in the High Court of Australia

MR F.X. COSTIGAN, OC: If the Court pleases, I appear with

my learned friend, MR M.J. CRENNAN, for the

appellant. (instructed by Valos Black &

Associates)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.

(instructed by J.M Buckley, Solicitor to Director

of Public Prosecutions (Victoria))

MASON CJ:	Mr Costigan.
MR COSTIGAN:	If the Court pleases, we have handed in an

outline of our submissions - - -

MASON CJ: Yes.

MR COSTIGAN:  - - - I might say that the argument is likely

not to be longer than the length of the submissions

as the points to be raised are, in fact, very

short.

What is important in this case is the

chronology and one other matter, and if I could

take the Court first to the chronology, which is

the last page of the outline. The Sentencing Act

1991 was assented to in June 1991.

Mr Justice Marks imposed a sentence of 12 years

imprisonment with a minimum of 10, on my client, in

August 1991, and that was done on the basis that

the maximum sentence was life. When it went on

appeal to the Court of Criminal Appeal in October

1991, Mr Justice Marks' view was accepted as

correct. Then in April 1992, the Sentencing Act

was proclaimed and that Act provided a maximum of

five years for the offence of incitement to murder.

Then in October 1992, this Court allowed an

appeal against the Court of Criminal Appeal, and

decided that both that Court and Mr Justice Marks

were wrong, and the appropriate maximum was

15 years. It went back to the Court of Criminal

Appeal, who accepted, of course, what this Court

had said and imposed a new sentence of nine years

with a minimum of seven years, and as my friend,

the Director, indicated that, in effect, means with
remissions, six with a minimum of four and

two-thirds, or thereabout.

Then, on 11 February this year, as we

understand it, the only other charge of incitement

to murder that has occurred in recent years, came

before His Honour Mr Justice O'Bryan, and

Mr Justice O'Bryan was right in the window where

the maximum was five years, and he was precluded

Dimozantos(2) 13/8/93

from sentencing Mr Boucher to a sentence beyond

five years and, in fact, he imposed that sentence

of five years with a minimum of four. In the

course of his sentencing - and I will take the

Court to that in a moment - he contrasted the offence that Mr Boucher had committed with the offence that Mr Dimozantos had committed and said

Mr Boucher's was much worse, but he was locked into
five years, although Mr Dimozantos had got nine

with a minimum of seven.

And then, on 1 June of this year, the

Sentencing Amendment Act was assented to. There

has been a further amendment to the Sentencing Act

where now the maximum penalty is life. And by one

of those coincidences which seem to bedevil this
case, that Act is coming into force Saturday night,
so that in Victoria at the moment the maximum

penalty for incitement to murder is still five

years, but as of Sunday it will be life. Now, it

is in that context that the appellant in this case

has been from the trial judge to the

Court of Criminal Appeal to the High Court, back to

the Court of Criminal Appeal and back again, now,
to the High Court.

While the understanding of what the maximum sentence appropriate to him has varied from life,

as Mr Justice Marks in the first

Court of Criminal Appeal thought it was, to

15 years, to five years and then on Sunday, back to

life. Now, that is the chronology.

What has also happened to him as he has passed

to this road of appeals is that Mr Justice Marks

made an error of law, the first

Court of Criminal Appeal made an error of law.

That was corrected by this Court last year.	It
went back to the Court of Criminal Appeal.	The
Court of Criminal Appeal decided that the
appropriate penalty was 15 years, and that is not
subject to challenge in this Court.	But in the
course of their judgment, the

Court of Criminal Appeal made a number of

sentencing errors which, we say, vitiated the

sentence imposed on him.

BRENNAN J: But, it is common ground that the scope of the

sentencing discretion was 15 years.

MR COSTIGAN: Yes, Your Honour. That is not a matter of

dispute. Now, we say, if I go to page 2 of our

outline, that in this case the appellant suffers a

justifiable sense of grievance for two reasons.

The first there is a manifest disparity between the

sentences imposed on him and the sentence imposed

on a comparable offender and, secondly, he has

Dimozantos(2) 3 13/8/93

lived for over two years in a state of uncertainty as to what the maximum penalty was relevant to him.

Now, if I could take the Court to

paragraph 4 of the outline. From 22 April, 1992

until 15 August, which is Sunday, the maximum

available sentence for incitement to murder was

five years.

TOOHEY J:  Each time, Mr Costigan, that you make that

statement, as you do in the chronology and here, as

to the maximum available being "x" years, that is

by reason of what you say was to be the proper

construction of the sentencing provision, rather

than because that period is nominated, is that

right?

MR COSTIGAN: That is so, and I do not think that is a

matter of dispute between myself and my learned

friend.

BRENNAN J: When you say from 22 April, 1992 to 15 August,

1993, is that the period in respect of which five

years imprisonment was the maximum if the offence
was committed in that time, or if the sentence was

imposed in that time?

MR COSTIGAN:	No - - -
BRENNAN J:	- - - or if the sentence was imposed in that

time.

MR COSTIGAN:  Yes, sentence imposed.

BRENNAN J: Yes.

MR COSTIGAN:  Any person coming up for trial and for

sentence for that offence, between those two dates,

the maximum sentence appropriate, or applicable,

was five years.

BRENNAN J: That is what puzzles me about the agreement that

15 years was the scope of the sentencing

discretion, by reason of the transition provisions.

MR COSTIGAN: 

It involves me going back to section 117 of

the Sentencing Act, which is not a subject of this
appeal, but it is a peculiar section, as may not

surprise the Court to hear that, but one of the

things it did was that if the fresh sentence was
being opposed by an appellate court, then the
appropriate sentence was that which would have been
imposed in the first place by the sentencing judge,

which this Court has said was 15 years. It is that

kind of circular - but the end result is that when
the appellant went back to the Court of Criminal

Appeal, that court decided - and it is not subject

Dimozantos(2) 

13/8/93

to appeal - that the appropriate figure was 15

years, even though, if he was being sentenced by

the trial judge, it would have only been 5 years.

I have copies of the Sentencing Act; that

section - - -

BRENNAN J:  It is unnecessary in the light of what you said,

Mr Costigan.

MR COSTIGAN:  I do not think my friend challenges what I

have -

BRENNAN J:  He has been nodding furiously as you have been

going.

TOOHEY J: Well, do you rely upon the five-year period, as

it were, persuasively, as pointing to some sort of

yardstick by which an appropriate sentence might be

imposed, of course, acknowledging that 15 years is

the maximum, or do we just put the five-year

maximum out of our minds completely?

MR COSTIGAN:  On the contrary. We say it was in the minds

of the Court of Criminal Appeal. They purported to

give some relevance to the fact that the maximum

sentence had been reduced to five years, but we say

did not give the appropriate relevance to it.	We
do not, of course, say that the maximum for
Mr Dimozantos was five years - - -

TOOHEY J: No, no, I appreciate that.

MR COSTIGAN:  - - - but it ought to have played a very

significant part in the consideration of the Court.

As we have said in the third sentence on page 2,

paragraph 4, or the second sentence, any person

convicted of this offence ,that is, incitement to
murder, during this period, no matter when the

offence occurred, would have been faced with a

maximum of five years. But if the sentence was

imposed before or after that period, or was imposed

by an appellate court, the maximum was 15 years or

life.

That is the peculiar result of the provisions

of section 117, and again, it is not a matter of dispute between the parties that that is the end

result. But what it did, of course, was give rise

to the possibility of a serious inconsistency as

between offenders, depending upon who sentenced

them and when the sentence took place. That

possibility became a reality in the case of Reg v

Boucher, a copy of which we have provided for the

Court. Boucher was a man who incited a person to

murder his former wife in really quite unpleasant

circumstances, which is set out by the learned

trial judge. At the bottom of page 288, or the

Dimozantos(2) 13/8/93

second page of the sentencing remarks, His Honour

referred to Dimozantos' case and said that he:

was sentenced for incitement to murder

committed in different circumstances.	The
incitement there was not directed by a	husband
towards his spouse.
Then he recites the history of Dimozantos.	On

page 290, which is the fourth page of the

sentencing remarks, His Honour said:

I now propose to state reasons for

choosing the maximum penalty as the

appropriate sentence in this case. The

circumstances of the present case reveal, in

my opinion, a far more serious example of the

offence charged than was revealed in

Dimozantos' case.

So if I can take the Court back to the outline

again, what we have is a possibility of serious

inconsistencies between sentences and a frank

example - indeed, the only example of a man charged

with incitement to murder during this period - a

frank example of the inconsistency where Boucher,

recognized by the trial judge to be a far worse

case than Dimozantos, gets a significantly smaller

sentence.

TOOHEY J: But the inconsistency, Mr Costigan, is produced

by the requirements of the legislation, is it not?

MR COSTIGAN:  The possibility of the inconsistency, yes, it

is, but that does not affect the legitimate sense
of grievance and injustice which the present

appellant might feel.

TOOHEY J:  No, but his grievance may be against the

legislature rather than against the sentencing

process.

MR COSTIGAN:  It is against the sentencing process,

Your Honour, because what we say is that the Court

of Criminal Appeal failed to take into account the

change in the maximum sentence to such an extent as

to give proper weight to that fact, and therefore
the sentence was too high and legitimately produced

the sense of injustice.

BRENNAN J:  If the sentence that had been passed was six

years with a minimum of five, would that have

attracted the same argument?

MR COSTIGAN:  The argument becomes less strong, because we

are talking about a comparison between sentences.

Dimozantos(2) 6 13/8/93

BRENNAN J:	And it is a question of degree.
MR COSTIGAN:	As they narrow, then of course the argument is

the less strong. But what we say here is that when

one analyses the judgment of the Court of Appeal,

they have fallen into a sentencing error.

BRENNAN J: But there are two factors, are there not? One

is the sense of grievance if there is
incompatibility between sentences, and the second
is the sentencing principle that the court must
take into account the maximum which the legislature

has prescribed for that offence.

TOOHEY J: But the inconsistency, Mr Costigan, is produced

by the requirements of the legislation, is it not?

MR COSTIGAN:  The possibility of the inconsistency, yes, it

is, but that does not affect the legitimate sense

of grievance and injustice which the present

appellant might feel.

TOOHEY J:  No, but his grievance may be against the

legislature rather than against the sentencing

process.

MR COSTIGAN: It is against the sentencing process,

Your Honour, because what we say is that the Court

of Criminal Appeal failed to take into account the

change in the maximum sentence to such an extent as

to give proper weight to that fact, and therefore

the sentence was too high and legitimately produced

the sense of injustice.

BRENNAN J:  If the sentence that had been passed was six

years with a minimum of five, would that have

attracted the same argument?

MR COSTIGAN:  The argument becomes less strong, because we

are talking about a comparison between sentences.

BRENNAN J:	And it is a question of degree.
MR COSTIGAN:	As they narrow, then of course the argument is

the less strong. But what we say here is that when

one analyses the judgment of the Court of Appeal,

they have fallen into a sentencing error.

BRENNAN J: But there are two factors, are there not? One

is the sense of grievance if there is
incompatibility between sentences, and the second
is the sentencing principle that the court must
take into account the maximum which the legislature

has prescribed for that offence.

MR COSTIGAN: That is so. There is a secondary sentence in

principle.

Dimozantos(2)	13/8/93
BRENNAN J: Well, that is your argument, that it is a

secondary sentence in principle?

MR COSTIGAN: 

Yes, and that principle is that a court

sentencing should take into account, particularly
in appellant court sentencing, events or facts

which have occurred between the date of the first

sentence and the date of the second sentence. That

is a well-accepted principle and it was the

principle that was said to be the invariable
practice of the Court of Criminal Appeal in
Victoria in Carroll's case.

It is our argument that the Court of Criminal

Appeal ought to have taken into account the change
of the legislation reflecting a view that the

maximum penalty should be five years, and it failed

to do that because it distracted itself in its

consideration of other matters, and made wrong

findings of facts.	I will take the Court to the
passages.

It is a question, in this case, where one

starts. I have chosen to start on the basis of a

great sense of injustice and grievance as to the

comparative sentence that this man has got compared

to, not just what Boucher got, but what other

people might have got if they were sentenced during

this window when five years was the maximum.

Now, if I could take the Court to page 4 of

the outline. When the case came before the

Court of Criminal Appeal for the second time, the

appellant submitted the appropriate maximum

sentence was five years. That was a submission of

law. It was based on two grounds; the first ground

related to the meaning of section 117. The

appellant lost that argument and leave to appeal on

that argument was refused.

The second ground related to the practice of the Court of Criminal Appeal stated as being its	invariable practice to apply the law in force at
the time when it substituted its sentence for the
sentence originally passed. Now, there is no doubt
that was the invariable practice, as enshrined in
Carroll's case which was a Full Court decision, but
there is equally no doubt that section 117 of the required to apply section 117.

But what Carroll's case did and what the

practice was, the principle of fairness, which

formed the basis of the decision in Carroll, is

that a later sentencing court must take into

account any events of fact or law which occur

between the original sentencing date and the appeal

Dimozantos(2) 8 13/8/93

date. Indeed, the Court of Criminal Appeal

accepted that that was an appropriate thing to do

in its judgment.

At page 83 of the appeal book, and I now take

the Court to the judgment of the Court of Appeal -

perhaps if I go to pages 74 and 76 in the first

place.

On page 74 the court made a serious error in

chronology by saying that the amendments to the

Sentencing Act had been made by the legislature on

the basis of their understanding of the judgment of

Mr Justice Marks and the judgment of the

Court of Criminal Appeal. That assisted the court

in its interpretation or construction of

section 117. Now, the fact is, as the chronology

shows, that the amendments to the Sentencing Act

had occurred and passed through the Parliament

prior to the decision of Mr Justice Marks and prior

to the decision of the Court of Criminal Appeal.

So that to the extent that the Court of Criminal

Appeal drew comfort from the fact that the

Parliament must have understood the law as

originally interpreted, they were, quite frankly,

wrong.

The court went on to say:

Further, relevant maximum penalties in this interim period were altered upon the footing

that the analysis by Marks, J and by this

court of the relevant provisions was correct

and not, as the High Court held, wrong in law. Then, at the bottom of page 75:

It is clear that the High Court's view surprised amongst others the Victorian

legislature, a matter which may have some

relevance to our final orders.

Again, that was just incorrect. It was a mistake
on the part of the Court of Criminal Appeal.	The

Act had been passed by the Victorian Parliament

prior to the decision of Mr Justice Marks and the

Court of Criminal Appeal. The court did say:

a matter which may have some relevance to our

final orders.

When one turns to page 83 of the appeal book, the

court said:

However, this court will naturally take notice of the fact that this appellant is

being now re-sentenced, on the basis of a

Dimozantos(2) 9 13/8/93

remission-mollified available maximum of

15 years, at a time when a new offender for

exactly the same offence, who is not sentenced

at all until after 22nd April 1992, would fall

to be sentenced on the basis of a

non-mollified available maximum of 60 months

(five years). This consideration certainly

does not require this court to sentence the
appellant on the basis of a remissions-

mollified available maximum of 7 1/2 years or

90 months, but is does require the court to

take into account the possible dissonance

referred to and to take it into account in

favour of the appellant.

So, there is no doubt that the Court of

Criminal Appeal has recognized two things.

Firstly, that events that have taken place since

the original sentencing should be looked at and,

secondly, that possible dissonance between a

sentence imposed on this appellant and other

offenders for the same offence is to be taken into

account. But, we say, that they failed to take both those matters into account, partly because

they were guilty of a sentencing error in their

interpretation of the Sentencing Act and were

distracted from the appropriate consideration of

the five year maximum which was relevant to those

who were likely to be sentenced during this time.

TOOHEY J:  Mr Costigan, can I just ask you this, are there

remission provisions applicable to either the head
sentence or the non-parole period or both in

respect of the appellant?

MR COSTIGAN: In respect of Dimozantos?

TOOHEY J: Yes.

MR COSTIGAN:  Yes, there are. I understand that the current

sentence which is nine years with a minimum of

seven, in the ordinary course of events will

become, with remissions, six with a minimum of four

and two-thirds. The sentence of Mr Boucher is a

sentence of five years with a minimum of four.

There are no remissions available so far as that

sentence is concerned. When we applied for special

leave to appeal we informed the Court that

Mr Boucher has appealed against his sentence, on

the ground that it is too high, because the
sentencing judge failed to take into account a

number of considerations which were specified in

the Act, and we informed the Court that that appeal

was coming on the following fortnight. It has not

yet come on, I understand it is now coming on in

the following fortnight. One cannot say what the

Dimozantos(2) 10 13/8/93

result of that appeal will be, except that his

sentence cannot be increased and it may be less.

So at the end of the day, what we say about

this matter is that by the combination of a series

of bad decisions of lower courts, for which the

appellant cannot be held responsible, a combination

of that and a series of faulty drafting amendments

to the Victorian Sentencing Act, again for which

the appellant cannot be held responsible, he is

left with a kind of justifiable sense of grievance

and injustice when he sees that he is being

sentenced to a term in excess considerably of what

other offenders during this period would have been

and specifically he finds himself in the prisons of

Victoria with a considerably larger sentence than

Mr Boucher, who is said by the supreme court to have committed a far more serious incitement to

murder.

That is a legitimate sense of grievance and

injustice which, for example, troubled this Court

in Lowe's case. I have given a reference to Lowe's

case and indeed, as the headnote indicated:

The difference between the sentences must be manifestly excessive, and the court will

intervene in such a case on the ground that

the disparity engenders a justifiable sense of

grievance on the part of the accused on whom

the heavier sentence is imposed, or on the

ground that the disparity gives the appearance

that justice has not been done.

Quite simply, that is the ground on which this

Court gave the appellant leave to appeal; that it

went to the question of administration of justice,

and not to any question which would establish a

precedent in the future. It is simply a question

of the administration of justice and, in our

submission, the appellant is entitled to come to

this Court to correct the injustice which, through

no fault of his own, has been imposed on him.

Finally, we say, as appears in paragraph 11,

despite the legitimate and oft-expressed reluctance
of this Court to engage, for good reason, in the
sentencing procedure, there are reasons in this

case why the Court might, as a matter of exception,

itself impose the sentence if the appeal were

successful, rather than send this man - he has

already been sentenced on three occasions - to the

Court of Criminal Appeal to be sentenced on a

fourth occasion with, dare I say it, no absolute

certainty that he may not come back to this Court

again.

Dimozantos(2) 11 13/8/93

They are the submissions on behalf of the appellant. If the Court pleases.

MASON CJ:	Thank you, Mr Costigan. Mr Bongiorno?
MR BONGIORNO:	If the Court pleases, before going to the

Crown argument, as outlined in papers already

lodged, I might take up my learned friend's comment

to the effect that this man is entitled to suffer a

sense of grievance by virtue of the activity of the

legislature on two separate occasions. It would be

the Crown submission that that is, as

Justice Toohey observed, a matter for the

legislature, and if I can give an example of what

the legislature has done in Victoria in another

situation to exemplify that composition. If two

men in Victoria today - that is Friday,

13 August 1993 - commit the offence of sexual

penetration of a child between the ages of 10

and 16 and one of them is arrested tonight and one of them is arrested on Sunday, the man arrested on

Sunday faces a gaol sentence one-third longer than

the man arrested tonight. Now, that presume to be
the intention of the legislature in amending the

Sentencing Act.

Similarly, in relation to the matter that my

learned friend relies upon, it must be presumed to
have been the intention of the legislature that for
the period between 22 April 1992 and tomorrow night

the penalty for incitement to murder is five years,

whereas before that it was 15, and after tomorrow

night it will be life. So that the dissidence,

which my friend says engenders a justifiable sense

of grievance in his client, is one produced, as

Justice Toohey observed, by the legislature within

its province.

If I might go to the outline of argument which

the Crown demonstrates this appeal should not be

allowed.	The starting point for the Crown argument
is the case of Carroll, (1991) 2 VR 509, which is

the Victoria Full Court case. At page 511, the

court, comprising the Chief Justice Sir John Young,

Justices Crockett and O'Bryan, said, at line 20:

If a sentencing judge has fallen into error

according to the law at the time when he

passed sentence, this court has always

regarded it as its duty to intervene. When it

does so, it regards it as its duty to pass
such sentence as it thinks fit in accordance
with the law at the time when it substitutes
its sentence for the sentence originally

passed. This has been the invariable practice

of the court. It is a practice which enables

the court to substitute a different sentence

Dimozantos(2) 12 13/8/93

when some event occurs between the original

sentencing date and the date when this court

has to decide an appeal which demands some

alteration in the sentence imposed. In such a

case there may be no change in the law, but

simply a change in the relevant facts. The

principle however is the same.

This Court, in Radenkovic, 170 CLR 623, said

something similar but not quite in the same

context. Radenkovic was a case which dealt with

the New South Wales legislation which might be said legislation that the government there introduced
to have been the equivalent of the Victorian

into Parliament in 1989.

In the joint judgment of Your Honour the

Chief Justice and Justice McHugh, at page 632, a

principle is outlined at the first complete

paragraph on that page.

In the context of an appeal against sentence,

when a court of criminal appeal is called upon

to resentence because it has quashed the

sentence initially imposed, considerations of

justice and equity ordinarily require that the

convicted person be resentenced according to

the law as it stood at the time when he was

initially sentenced, particularly when that

law was more favourable to him than the law as

it existed at the hearing of the appeal. The

convicted person had an entitlement when he

was sentenced by the sentencing judge to a

sentence imposed in conformity with the

requirements of the law as it then stood. He

should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence

that was too harsh or too lenient ..... it would

require a very clear indication of statutory

intention to displace that entitlement.

The Court goes on to deal with the instant

Radenkovic
case. That principle as set out in is, necessarily inconsistent with Carroll. In

Victoria, at least, it is our submission that

section 117(4) of the Sentencing Act now either

abolishes the principle in Carroll, certainly so

far as changes in the law are concerned, and

Your Honours will recall that section 117(4) which

is attached to the back of the Crown argument - I
think it is on the last page of that small bundle -

this was the section which was construed by the

Court of Criminal Appeal, which construction this

Court refused leave to appeal from.

Dimozantos(2) 13 13/8/93

It is the Crown's submission that because of

the presence of section 117(4), the principle in

Carroll either does not apply at all, or if it

applies, it must be confined to factual changes

between the date of original sentence and the date

of resentence. The second part of that submission

does not, of course, need to be dealt with in this

appeal. So that the Crown's position is that the resentencing court was required by section 117(4)

to apply the appropriate penalty as it stood at the

date Justice Marks imposed the sentence, in other

words, with a maximum of 15 years.

TOOHEY J:  It is an odd way of expressing it, Mr Bongiorno,

is it not, if that is the intention, and it may

well be, but all subsection (4) says - perhaps I

have not read the entirety of the section, but

subsection (4) reads like some sort of machinery

provision. The sentence must be taken to have been

imposed at the time the original sentencing order

was made.

MR BONGIORNO:	Your Honours, subsection (4) has been the subject of a fair amount of debate in the Court of
Criminal Appeal, as Your Honour might imagine, because of the very difficulty of construction
Your Honour has highlighted. But in this case, as
in others, it has been interpreted by the Court of
Criminal Appeal as meaning that the Court of Criminal Appeal must place itself, for the purposes
of the law certainly, in the position of the trial
judge, as he was on the date that he imposed the
original sentence.  And that proposition which is
contained in this judgment of the Court of Criminal
Appeal being appealed from was not the subject - indeed, was a matter upon which special leave was
specifically refused, and the judges who heard the application for special leave taking the view that
that was not a point in respect of which special
leave ought to be granted; leaving the
interpretation of that section as it has been
interpreted in Victoria since this Act came in. Certainly one would not suggest that the
drafting of it is an example of legislative drafting in its finest form, but it has been interpreted by the court in that way. That means, in our submission, that Carroll either does not exist as a principle at all, or it is confined now to questions of fact, and we set that out in
paragraph 1 of our argument, and then, in the
alternative, we say that the effect of Carroll's
case now is that a Court of Criminal Appeal should
have regard to a new applicable sentence as an
aggravating or mitigating factor in the resentencing process, to be given such weight as

Dimozantos(2) 14 13/8/93

the Court of Criminal Appeal considers appropriate,

as an expression of legislative will.

So that here, if Carroll still exists in some

form, it is only in a somewhat watered-down form by

the effect of section 117(4), so that it becomes a matter to be taken into account in exercise of the sentencing discretion. Now, in our submission,

that is exactly what the Full Court did in this

case, and that is set out in their sentence, which

occurs at page 83 of the appeal book.

TOOHEY J:  I am not sure what you mean by the words, "as an

aggravating or mitigating factor"?

MR BONGIORNO: Well, in this sense, Your Honour, in this

case, obviously a mitigating factor; if the

legislature reduces a sentence between the date of

the original sentence and the date of the appellate

court-imposed sentence, well then, the fact that that has occurred can be taken into account as a

mitigating factor by the Court of Criminal Appeal

in the resentencing process. So that, in the

exercise of the resentencing discretion, one of the

factors is that the legislature has reduced the

penalty from 15 to five years - as a factor.

TOOHEY J:  And you would argue it would operate the other

way as well, would you? You do not have to.

MR BONGIORNO:  I do not have to in this case, and I put that

proposition in there and perhaps in light of cases

like Radenkovic - - -

TOOHEY J: That could hardly stand with Radenkovic, I would

have thought.

MR BONGIORNO:  Yes, it could not, unless section 117(4) has

removed that discretion anyway.

TOOHEY J: But as a matter of judicial expression it could

hardly stand with Radenkovic.

MR BONGIORNO:  It could not, no. I respectfully agree with

Your Honour about that. But, in this instance, we say that the most that the reduction in sentence

can affect is the resentencing discretion of the

Court of Criminal Appeal, and it expressed that

itself on page 83, when it said at line 4:

However, this court will naturally take notice of the fact that this appellant is

being now re-sentenced, on the basis of a

remission-mollified available maximum of 15
years, at a time when a new offender for

exactly the same offence, who is not sentenced

at all until after 22nd April 1992, would fall

Dimozantos(2) 15 13/8/93

to be sentenced on the basis of a non-

mollified available maximum of 60 months (five years). This consideration certainly does not require this court to sentence the appellant

on the basis of a remissions-mollified
available maximum of 7 1/2 years or 90 months,

but it does require the court to take into

account the possible dissonance referred to

and to take it into account in favour of the

appellant.

So that, in the exercise of the resentencing

discretion, the court has done at least that which

it is required by its own decision in Carroll to

do, if that decision still has any effect, and if

Carroll has been completely abrogated by

section 117(4), well then any error that the

Court of Criminal Appeal made was in favour of the

appellant.	So it is not a matter of which he can
complain.

DEANE J: But is not the problem this, that earlier the

court had said that the legislature had reduced the

penalty by a mistake. The basis of the mistake,

namely that the legislature had acted on the basis

of the earlier Full Court decision and was

surprised by what this Court decided, is as a

reason demonstrably false. The Court of Criminal

Appeal said that the fact that the legislature had

acted on that mistaken belief may prove to be
relevant and had then not indicated whether it did

or did not.

MR BONGIORNO:  Your Honour, this is the third paragraph of

our submission - - -

DEANE J:	I am sorry, I did not realize that you were -
MR BONGIORNO:	I was about to come to it in any event.

DEANE J: Well, in that case, disregard what I said because

you will no doubt deal with it.

MR BONGIORNO: So, just finishing off the propositions in

paragraph 2, in our submission, the court did take

into account the reduction when it sentenced. Now,

we then deal with this problem that Justice Deane

raised in paragraph 3. We say that the passage,

which commences on page 75 - after setting out the

legislation there, the Court said:

Justice Marks and this Court in 1991 were of

opinion that the maximum penalty for
incitement to murder in 1991 was fixed by

paragraph (c) of s 321 I (1), whereas the

High Court in October 1992 held that it was in

Dimozantos(2) 16 13/8/93

1991 fixed by paragraph (b) of the sub-

section. It is clear that the High Court's

view surprised amongst others the Victorian

legislature, a matter which may have some

relevance to our final orders.

They then go on on the next page giving a reason

why the sentence was lowered and the way in which

it came to be lowered.

Now, it is our submission that, having regard

to what the Court said at page 83, this is no more
than an irrelevant discursus or excursus from the

mainstream of the judgment. It does not - - -

MASON CJ:  Why would you read it that way, when they say "it

may have some relevance" and they subsequently do

not disavow relevance and, in the last paragraph of

the judgment, they say:

In our opinion the appropriate sentence

to impose in the very unusual circumstances of

the present case -

Does that not imply they have taken that up.

MR BONGIORNO: In our submission, no, Your Honour. It is

equally consistent with the proposition that it is

an unusual case where a sentence is reduced so

dramatically by the legislature at all. The case is unusual without any reference to why it did it or how it did it or whether it was surprised or

otherwise by the decision of this Court.	It is an
unusual case standing just on its facts.

Legislatures do not normally reduce sentences from
15 years to five years, particularly in the current

climate.

DEANE J: But assume, by way of example, that in reducing

the sentence the legislature in the preamble of the

Act had said, "and solely for the reason that the	present sentence for incitement to murder is life	and therefore we won't be reducing that sentence to
five years. We proceed to make this law." The
Court of Criminal Appeal would have been completely
justified, would it not, in saying, "Well, one of
the factors we have to take account of is that, due
to some incredible bungle, the legislature has
since inadvertently reduced the maximum penalty to five years"?

MR BONGIORNO:  Your Honour is positing a case where it

actually says, "We're not going to", and then in

fact goes ahead and does it?

DEANE J:  No, it spells out the fact that it is acting on

the basis of a mistake and that it does not intend

Dimozantos(2) 17 13/8/93

to do at all what it has done. Here the Court of

Criminal Appeal has said, "While the legislature

has reduced the maximum penalty to five years, it

is plain that it did that by mistake and that that

may be relevant when we subsequently come to our

final orders."

MR BONGIORNO:  To take the proposition that Your Honour

first put, of course, is different in this sense,

that there the Court would be faced with two

provisions of an Act which were inconsistent on

their face, and they would fall to construe that in

accordance with principles of statutory

construction.

But, to take the second proposition that

Your Honour put, in our submission, having regard

to what the Court did here - and really our

argument ends up boiling down to the very bald

proposition that the Court did not, although it

said, "This is a matter which may have some

relevance to our final orders", an examination of

what it did and what it said as it was doing it,

does not bear that out.

DEANE J: But is not the real vice further on, when it says, "It is quite plain that the reason why the sentence

was lowered to five years is that it was

considered, after the decision of Justice Marks and

of this court, that paragraph (b) did not cover

incitement to murder". Now, it has based that

statement on what is a demonstrable mistake of

fact, has it not.

MR BONGIORNO:  Yes, it has, and I cannot gainsay that, that

is clear.

DEANE J:  Now, if that statement were correct, would it not

be a relevant matter to take into account in

determining the significance of the fact that the

legislature had seen fit to reduce the maximum

penalty to five years? It would, at least, be a

somewhat difficult question, would it not?

MR BONGIORNO:  It would be a very difficult question,

Your Honour, because that raises something that was

not argued in the Court of Criminal Appeal at all

and is not, in the research I did into this matter,

the subject of any authority that I could find.

And that is the question of whether a court can go

behind both the words of the statute and such other

supplementary materials as it might now use to

construe a statute, on the basis that somebody must

have made a mistake. It is not something upon

which the books are screaming with assistance, I

might say.

Dimozantos(2) 18 13/8/93

Consistent with principle, apart from

interpreting the statute and using such extraneous

materials as are now permitted, in our submission,

the Court would be intruding into the legislative

arena far further than a court can.

DEANE J: Well, that is why I gave you the example of the

preamble to the Act making it clear that the

legislature had made a mistake.

MR BONGIORNO:  Yes. The situation of Acts having

inconsistencies in them is not unknown, but they

are construed in one way or another trying to give

effect so far as possible to each of the

inconsistent provisions, and there are cases on

that, but they do not assist in a situation where
the court, for one reason or another, extraneous to

the Act and extraneous to the permitted extraneous

material, if you like, is entitled to say it must

have made a mistake. I looked at that at the time this was in the Court of Criminal Appeal and could not get anywhere with an argument in relation to

it.

DEANE J: But is that not also where what Justice Toohey was

discussing with you has a degree of relevance here

in that if you could treat the changes in the law

as aggravating, you might be able to say in this

case, "Well, it was five years then but, if he's
resentenced now, we've got to take account of the

enactment of the Act that takes effect this

weekend." That being so, really it is much ado

about nothing but, if you limit it to mitigating,

the approach would be, "Well, we don't take account

of the aggravating one and we look back and the

best we can do is speculate whether the Court of

Criminal Appeal's obvious mistake did adversely

affect the sentence."

MR BONGIORNO: Other than, Your Honour, to look at the

sentence itself, because the sentence itself could

hardly have been lower if it took into account - it

has a maximum available of 15 years. That is a

remission-mollified 15 which is really a maximum of

10 under the Victorian system. It gave him

effectively six. It would have had five available,

no remission. It has given him only one year to

take into account the fact that - to put the

argument completely around the other way, to take

into account the fact that the maximum is 15 years,

or 10 in real terms. So that it would be difficult

for a court to take into account any more strongly
the legislative will, by mistake or otherwise, of
the reduction to five years than what this court

did in this case. It could not get much lower than

- it could only come down effectively another year.

Dimozantos(2) 19 13/8/93

DEANE J: That sounds very powerful to me but, if instead of

the sentence they imposed, they had imposed an

extra 12 months or a lesser 12 months, it would not

have any effect on me in that I would look at it

and I would think that is a bit hard or it is a bit

light, but it is the going rate in Victoria,

apparently.

MR BONGIORNO:  I am not sure I follow Your Honour's -

DEANE J: What I am saying is, I am just not qualified to

assess the merit of your argument, that you look at

the sentence and you say, "Oh, this is as low as

they could have gone". I just do not know.

MR BONGIORNO: Perhaps if I put it another way and take

Mr Costigan's example of the man who he says was

far worse, who got five with a maximum of four,

this man, who is sentenced under a different

maximum, got six with a minimum of four and two-

thirds. There is not much room to detect an error

in the result, even if an error - as Your Honour

has pointed out, there is an error in the factual

statements in the Court of Criminal Appeal's

judgment. So that the result that is arrived at,

and the Crown would say, as explained on page 83 and indeed explained on page 80 as well, which I

was about to come to, that the result is that they

did not take into account anything related to the

mistake. They took into account the fact that the

sentence had been reduced but that they did not

load it in any way because it was reduced, as they

say, by mistake or by reason of misapprehension of

the law. There cannot be a suggestion, in our

submission, from what they actually did to support

the - - -

DEANE J: But we can only speculate about whether if they

had not made the mistake, the sentence would have

been eight years.

MR BONGIORNO:  Yes, a remission-mollified eight years.

DEANE J: Yes. It may have been; it may not have been.

MR BONGIORNO:  It is the Crown's principal contention that

when one looks at page 83 - and, indeed, I take the

Court to page 80 which is where they begin to deal

with this question of truth in sentencing and the

abolition of remissions. They recognize the

necessity to take into account, still, the question

of the legislation. That appears at page 80, the

third from the bottom. The different sentence on

appeal at line 284:

The different sentence on appeal is prima

facie the sentence which ought properly to

Dimozantos(2) 20 13/8/93

have been passed in the first place, although

of course this appellate court always takes

into account the circumstances, including the

legislation, which subsist at the time of re-

sentencing:

And they refer to Carroll. Then, as I have already read at page 83, the court deals with what it actually did do and, in our submission, deals with it appropriately. So that the reference to why the

legislature reduced it - the possible relevance has

to depend, in our submission, on those few words

which may have some relevance to our final orders

and that there is nothing to suggest that it did.

Paragraph 4 of our written argument I do not

persist in, in the light of Radenkovic and the

comments made by Mr Justice Toohey, so that our

argument really rests on the proposition that what

the Court said in relation to why the legislature

in Victoria did what it did is an irrelevant

excursus from its judgment and that the result it

reached as explained by it is the proper way. If

the Court pleases.

MASON CJ: Thank you, Mr Bongiorno.

DEANE J:  What do you say about the suggestion that this

Court should somehow decide what the appropriate sentence was?

MR BONGIORNO:  Having regard to Your Honour's comments - the

Crown has no view on the matter in terms of a submission to make, but the Crown would be content

either way, having regard to the practice of this

Court and the authorities seem clear that the Court

does not, as a matter of practice, engage in the

resentencing of persons who succeed on appeal.

Radenkovic is authority for that, and there are a

number of other cases where the Court has said that

it would probably be more appropriate that it be
remitted to the Court of Criminal Appeal.	But I

have no submission to make one way or the other

from the Crown's point of view.

My learned junior, takes me back, if I just

might, in conclusion, to the first panagraph of our

outline: that if we are right about the effect of

section 117(4) and that it in fact abrogates the

proposition in Carroll so far as that proposition
can be extended to changes in the law, as distinct

perhaps from changes in the;facts, well then, the

sentence, if there is an error, is an error in

favour of the appellant. It is not an error that

would fall to be corrected by this Court. So that

if Carroll has been abrogated by section 117(4) so

far as statutory amendment is concerned, then there

Dimozantos(2) 21 13/8/93

is no question to be determined, in effect, by this

Court. If the Court pleases.

MASON CJ: Thank you, Mr Bongiorno. Mr Costigan?

MR COSTIGAN: There are two matters, if Your Honour pleases.

The first is on that last matter. We say, of

course, the basic principle in Carroll has been

very much overtaken by section 117(4) which must

cover it, but there was a subsidiary principle in

Carroll which did pick up the concept of looking at

intervening events between the first sentence and
the appellate court and that principle is not

removed by section 117(4) and, indeed, the Court of

Criminal Appeal at page 80 recognized at line 287

that the appellate court will always take into

account the circumstances, including the

legislation, which subsist. So that we say changes

in fact or law are still relevant to the

consideration of that Court.

Secondly, we would say, that at the time the

Court of Criminal Appeal considered this matter,

the maximum was five years; there was no further

amendment to the Sentencing Act, and it was in that

atmosphere that it was to consider what was the

appropriate penalty to impose on this man, and the

last thing we would say is that, at the end of the

day, what has to be considered here is whether

there is such an appropriate sense of injustice, or

grievance, as to attract the intervention of this

Court, and that it is not helpful to that to do an

arithmetical exercise of reducing 15 to 10 and then

10 to six, or whatever. The true grievance is

demonstrated by the actual comparison between what

happened to Mr Boucher and what happened to this

man.

It is not a kind of offence where one can draw

a large number of examples to draw up a list of

comparisons. There have been only these two cases

of incitement to murder, and one man, my client, is	in gaol, sentenced to nine years, with a minimum of
six, and the other one who has committed a far
worse murder is in gaol with a maximum of five,
with a minimum of four, which may be reduced on
appeal. If the Court pleases.

MASON CJ: Thank you, Mr Costigan. Court will consider its

decision in this case and the Court will now stand

adjourned sine die.

AT 12.26 PM THE MATTER WAS ADJOURNED SINE DIE

Dimozantos(2) 22 13/8/93