Dimozantos v The Queen

[1993] HCATrans 161

...

.

• ..

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M127 of 1992

B e t w e e n -

ANGELO STEPHEN DIMOZANTOS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Dimozantos 1 17/6/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 11.25 AM

Copyright in the High Court of Australia

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

MR M.J. CRENNAN for the applicant. (instructed by

Vales Black & Associates)

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

MS K.E. JUDD for the Crown. (instructed by

Director of Public Prosecutions)

MASON CJ: Yes, Mr Costigan.

MR COSTIGAN:  If I could hand up to the Court a very slim

file of documents which may be useful to the Court.

If the.Court pleases, the first document is a

chronology which, in the rather unusual

circumstances of this case, we thought might be

useful to go through quickly.

The Sentencing Act 1991 was assented to on

25 June 1991 but had not been proclaimed. On

2 August the applicant came before Mr Justice Marks

for sentence, and Mr Justice Marks sentenced him on

the basis that the appropriate maximum was life

imprisonment and imposed a sentence of 12 years

with a minimum of 10.

That went to the Court of Criminal Appeal on

7 October 1991 and the Court of Criminal Appeal

refused leave to appeal against both conviction and

sentence on the basis that the view taken by

Mr Justice Marks was correct. Then on

22 April 1992 the Sentencing Act was proclaimed and

came into operation, and it is that Act which

imposed a maximum of five years for the offence of

incitement to murder.

The case came before the High Court and

judgment was delivered on 7 October, and the High

Court unanimously found that the Court of Criminal

Appeal and Mr Justice Marks had wrongly interpreted

the appropriate section of the Crimes Act, and that

the appropriate part of the Crimes Act which

applied to this case involved a maximum of 15

years. The fact that the Sentencing Act 1991 was already in operation was not germane to the matter

that this Court had to consider at the time.

When it went back to the Court of Criminal

Appeal in December last year, although the

Sentencing Act was now in operation imposing a

maximum of five years, the Court of .. Criminal Appeal

took the view that that was not the appropriate

maximum. It looked at the transitory provisions in

the Sentencing Act, decided that the appropriate

maximum was 15 years and imposed a sentence of nine

years with a minimum of seven years.

Dimozantos 2 17/6/93

The grounds that we come to this Court for special leave are short to state, but before I

state them can I say just this: although we say

the grounds do come under section 35A(a) as raising

matters of public importance, we also rely and

perhaps primarily rely on subsection (b) on the

ground that it relates to the administration of

justice in this particular case. The reason why we

say that in this particular case requires reference

to one of the documents that I have handed up in
the file, and that is a sentence of His Honour

Mr Justice O'Bryan in the case of

Christopher Ronald Boucher.

Christopher Ronald Boucher himself was a man

charged with incitement to murder, but of a quite

different character to the charge in the instant

case, and indeed His Honour, who sentenced

Mr Boucher on 11 February, made reference to this

case in the course of his sentence. At the bottom

of page 2, line 29, of the document I have handed

to the Court, although it is page 288 of the

transcript, His Honour said:

In July 1991 a person, Dimozantos, was

sentenced for incitement to	murder committed
in different circumstances.	The incitement
there was not directed by a	husband towards
his spouse.

I might say that His Honour had set out the facts
of Mr Boucher's, and one need only read those to
understand that it was a far more serious
incitement to murder. His Honour then went through

the history of Mr Dimozantos, and indicated:

The High Court's interpretation of the

relevant section caused surprise to many.

No doubt His Honour is entitled to say that, but he

then recited the further history and then made

comments on the new Sentencing Act, because what

of the new Sentencing Act provided, dare I sa"r it,	had happened, of course, was that the proclamation	a window of opportunity by fixing the maximum as
five years for this particular sentence. Then His
Honour dealt with Mr Boucher, and at the top of
page 290 he 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.

At the bottom of page 290, His Honour said:

Dimozantos 3 17/6/93

You will therefore be sentenced to a term

of 5 years imprisonment. I shall fix a

minimum term of 4 years before you become

eligible for parole.

So what we have, and one can understand perhaps a

this case, that he has been sentenced to nine years with a minimum of seven at a time when the	sense of injustice in the mind of the applicant in another accused, Mr Boucher, who is described by the trial judge as having committed an offence far
more serious than the one Mr Dimozantos has
committed, finished up with five with a minimum of four.

So that on the surface there appears to be a

disparity in the administration of justice working

to the disadvantage of the applicant and, if that

submission is acceptable to the Court, we would say

that is a reason on its own why the Court should

interfere and see that justice is done. What

Mr Dimozantos wishes, of course, is that he be

sentenced ultimately but sentenced according to

law, and he is heading towards his third sentencing

if this application is accepted.

We will also be saying that if the Court accedes to the application for special leave - if I

might take my courage in both hands - we would say

that this would be an appropriate case for the

Court to depart from its normal refusal to
sentence, and to say in the particular
circumstances of this case where the knowledge of

sentencing practice is not as important as it

normally is, and with ~he guidelines of Boucher, to

say it would be appropriate to impose a sentence of

perhaps three with a minimum of two, or something

of that order. We would say that was appropriate

in a case of this kind, and particularly so when

one does not contemplate with any pleasure the

thought of the applicant being sent back to the

Court of Criminal Appeal to be dealt with again at

a time when it is more likely than not that a new

Sentencing Act will have been passed and

proclaimed, and another question will then arise as

to which is the appropriate Act to apply.

Having said that, we say that ~o summarize,

the sentence imposed on this man was inconsistent

with sentences imposed on other people, such as

Mr Boucher, and it is based on an incorrect

application of the law. We say that the Court of

Criminal Appeal made two errors in its decision.

The first error it made was that it considered an

earlier case of Reg v Carroll, (1991) 2 VR 509, and

a copy of that decision is found in the file I

Dimozantos 4 17/6/93

handed up. That was a case where the Court of

Criminal Appeal in Victoria in 1990 decided in

terms which are accurately set out in the headnote.

The court said:

If a sentencing judge has fallen into error

according to the law applicable at the time of
passing sentence, the court has always

regarded 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 when some event occurs

between the original sentencing date and the

date when the 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.

Now, that is an exact quotation of the passage on

page 511 of the report which states that.

The Court of Criminal Appeal considered

Carroll at page 37 of the application book, and it did so in the context of looking at section 117 of the Sentencing Act which I will take the Court to

in just a moment. At line 284 the court said:

The different sentence on appeal is prima

facie the sentence which ought properly to

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: see eg R v Carroll.

With great respect, that is not quite what Reg v

Carroll said. It is not a question of prima facie

the sentence ought properly to have been passed and

that the court takes into account matters. It is

the invariable practice of the Full Court to apply
the appropriate law in force at the time of the

resentencing. So we say the court took into

consideration a view of Carroll which was

incorrect, and that was a sentencing error.

Secondly, the court made an assumpt1on - - -

GAUDRON J: But how does that bear on the basis on which the

court acted? The court acted, did it not, on the
basis of its view of the correct interpretation of

the transitional provisions?

MASON CJ: Section 117.

Dimozantos 17/6/93

MR COSTIGAN:  It took the view that section 117(4) was the appropriate section. I want to say something about

117(4) in terms of another sentencing error before

I turn to the meaning of section 117(4).

MASON CJ: But have you not got to deal first with

section 117 before you get to the point that you

are currently raising as to whether or not it was

right to say that subsequent circumstances,

including the new regime, should be taken into

account in some way?

MR COSTIGAN:  Pe_rhaps, with respect Your Honour, I should

deal with that first, but we would say in any event

if one is able to discern within a judgment of the

Court of Criminal Appeal a number of sentencing

errors independently of the view taken of the
meaning of section 117(4), then that is a reason

for the court to interfere if it is of the view

that justice has not been done.

Might I turn to the other sentencing error

very quickly, Your Honour, before I go to 117(4). of this case at the bottom of page 32 of the

application book, the Court said:

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.

On 22nd April 1992, at a time when the

legislature not unreasonably believed - in
accordance with this Court's decision of
7th October 1991 - that the penalty for
incitement to murder was fixed by

paragraph (c), the Sentencing Act 1991 came

into operation. By force of s.119(1) of that

Act and paragraph 57 of the Second Schedule

thereto, the penalty for incitement ..... was

that the reason why the sentence was lowered	lowered to five years ..•.• It is quite plain	from 15 years to five years is that it was
considered, after the decisions of Marks, J
and of this Court, that paragraph (b) of s 321
I(l) did not cover incitement to murder but only incitements for very much lesser crimes including many minor former misdemeanours.
The Court is quite mistaken in that statement.

The fact is that, as the chronology shows, the Act

was passed by the Parliament prior to

Mr Justice Marks' original sentence and was passed

by the Parliament prior to the Court of Criminal

Appeal's acceptance of Mr Justice Marks. So that

to draw the conclusion that the new Act reflected

Dimozantos 6 17/6/93

the legislature's understanding of the law as

expounded by the Supreme Court is just not correct.

What the Court has done -

MASON CJ:  You are affording us an opportunity of granting

special leave so that we can tell them they are

wrong again.

MR COSTIGAN: Well, that does happen if special leave is

granted, Your Honour. But it is quite clearly a

mistake made by the court and what is more it is a

mistake which the court - the view formed as a

result.of that mistake is a view which they take

comfort from in looking at section 117 to identify

the true meaning of it. So we say there are two

sentencing errors to be found within their

judgment, one of which bears on their approach to

section 117(4).

DEANE J:  Had there been any earlier decisions of the

Victorian Supreme Court to the effect of what was later held and overruled by this Court?

MR COSTIGAN:	I believe not, and my friend tells me.
DEANE J:	So there is no possibility that the Parliament was

misled by an earlier judicial decision contrary to

what this Court held?

MR COSTIGAN:  I do not believe there is any such

possibility.

MASON CJ:  Do you agree with that Mr Bongiorno?

MR BONGIORNO: Yes, I do, Your Honour.

MR COSTIGAN: That is the first part of the argument, that

the court has made a number of errors and

significant errors. That is really the second part

of the argument. The first part of the argument is

that there is such an obvious disparity in the

sentences imposed on this man as opposed to

criminals in more serious circumstances, that the

judgment cannot be allowed to stand. Then the

third aspect of the application -

GAUDRON J: Is it your case - I am perhaps not following it

exactly - that even assuming the court was right on
section 117, that those errors influenced the

actual decision that was made - the·actual sentence

that was imposed.

MR COSTIGAN: Yes, the actual sentence that was imposed and

that it is not safe to let - - -

Dimozantos 7 17/6/93

DEANE J: Because they discounted the significance of the

five year current sentence by reason of statements

which were simply wrong.

MR COSTIGAN: That is so, Your Honour, and accordingly, that

it is just not safe to leave that sentence as it is and what is more that it is unfair to leave it when

one looks at a case like Boucher, which is the

most - incitement to murder is not a common offence

so that one is not able to produce before the Court

a large number, but Boucher is the most recent one
and the disparity between the sentence imposed on

him and the sentence imposed on this man is such

that in the proper administration of justice the

sentence ought not to be allowed to stand.

The third limb of the argument is the one that

Your Honour the Chief Justice has been wishing I

should turn to, section 117(4). We say that that

section is not appropriate, that the appropriate

subsection is subsection (1) which says:

This Act applies to any sentence imposed after

the commencement of this section, irrespective

of when the offence was committed.

That, of course, really picks up what the

Full Court of Criminal Appeal had said in Carroll's

case and reflects the law in Victoria as to the

appropriate course to follow. One needs to get to

subsection (4) in order to eliminate the operation
of subsection (1). Subsection (4) says:

For the purposes of this section a sentence imposed by an appellate court after the commencement of this section on setting aside

a sentencing order made before that
commencement must be taken to have been

imposed at the time the original sentencing

order was made.

We say that that section really had a

different purpose. It was intended to, as similar

sections in New South Wales were intended to, preserve for the benefit of a person charged

whatever advantages were to be found in a previous

Act. The obvious advantages were the whole

remission system, and this Court has had to deal

with the New South Wales situation in another case,

Radenkovic's case. We say that this section was

designed to preserve for the benefit of persons

sentenced prior to the coming into operation of

this Act any remissions that were available as part

of that sentence and that it was intended to do

that in the situation where an appeal had been made to the appellate court, and the appellate court set

aside the original sentence and substituted a new

Dimozantos 17/6/93

sentence. That would mean that the accused

retained the benefit - if benefit is the right word

- of the remission system under the old Act.

It is a matter of some argument whether the

wording of subsection (4) applies to what has

happened in this case, because what happened in
this case was that the Court of Criminal Appeal

refused leave to appeal against the sentence and

conviction imposed by Mr Justice Marks and came to

this Court. This Court, having heard the appeal,

made an order and the order was - it appears on

page 92 of the application book - is:

that the appeal be allowed, the order of the

Court of Criminal Appeal dismissing the

appellant's application for leave to appeal
against sentence be set aside and, in lieu

thereof, the appellant be granted leave to

appeal against sentence and his appeal against

sentence be allowed, the sentence be quashed

and the appellant be remanded in custody to be

sentenced according to law.

And it was then sent back to the Court of Criminal

Appeal. Whether one can properly say that in the

circumstances of that judicial route the appellate court is sentencing the applicant on setting aside

a sentencing order - what has happened here is that

the High Court has quashed the order and sent it

back to the Court of Criminal Appeal for

resentencing. The argument before the Court of

Criminal appeal was that it was not appropriate to

apply the provisions of subsection (4), designed as

might have occurred under the previous Sentencing	they were for the protection of benefits which provisions of that section in the face of Carroll
and in the face of subsection (1) which picked up
the principle of Carroll -

GAUDRON J:  Does it follow that you would not get remissions

if you are right?

MR COSTIGAN:  If we are right we get less than five years.

GAUDRON J: Yes, but you would not get remissions?

MR COSTIGAN:  No, what we would get would b~ an ability

under section 10 of the Sentencing Act to apply for

a reduction in the sentence and there are a whole

series of considerations there. It is a truth in

Sentencing Act, which means that whatever at the

end of the day the Court imposes as a sentence,

that is the sentence. But it does not necessarily

mean that it is five years. Five years is the

maximum, but it may be less than that.

Dimozantos 9 17/6/93

MASON CJ:	I have not quite followed your argument in so far as it is directed to the words, "on setting aside a
sentencing order". Are you suggesting that
requirement is not satisfied when it is not the
appellate court that sets aside the sentence that
imposes the new sentence?

MR COSTIGAN: Yes, Your Honour.

MASON CJ:  So that if this Court had imposed a new sentence

instead of remitting the matter to the Supreme

Court of Victoria it would have fallen within subsection (4)?

MR COSTIGAN:  If this Court was then the appellate court as

described under subsection (4)?

MASON CJ: Yes. If, when the matter came to us initially,

we had set aside the sentence and imposed a new

sentence of our determination, it would have come

within (4). You concede that?

MR COSTIGAN:	I do not concede it.
MASON CJ:	You do not?
MR COSTIGAN:	No, I do not concede it.
DEANE J:	You are not conceding anything.

MASON CJ:  Why would it not? If you are not conceding it,

what is the reason why you do not concede?

MR COSTIGAN:  Because we would say that this section is

designed to meet the ordinary procedures of the

Court of Criminal Appeal as the appellate court.

MASON CJ:  I see. So that the High Court stands outside

subsection (4)?

MR COSTIGAN: Yes, Your Honour. For that submission I am

not in a position to provide any authority,

Your Honour, it is entirely a matter of - - -

MASON CJ:  No. I strongly suspected that was the position.

MR COSTIGAN:  Your Honour, there is nothing more we would

wish to put. That is the reasons why we say that

the application for special leave spould be

granted.

MASON CJ: Yes, Mr Bongiorno?

MR BONGIORNO:  If the Court pleases. I can take up the

sentencing errors that my learned friend sought to

identify and perhaps take up the one that he

identified on page 33 of the application book

Dimozantos 10 17/6/93

first. Whilst it is true to say that the

commencement of the Sentencing Act occurred on
22 April 1992, it is also true to say that it

occurred in, at that time, a climate of

interpretation of section 321I, which was

consistent with it being 15 years. So that whilst

my friend is correct in saying that at the time the

Act was passed by the Parliament there was no

judicial decision on 321I and it had been in the

Crimes Act since 1982, so it has been there for 10 years odd, there was no judicial decision between

the passing of the Act in June, or its assent in

June 1991 and its commencement in April 1992, but

it had.been in operation for some 10 years, or 9

years odd, at that time.

In our submission, our learned friend takes the allegation of sentencing error too far when he

says that the Full Court is saying that the

legislature acted so far as enacting the

legislation. All the government did was proclaim

the legislation to commence on 22 April 1992 in

what was then, one might have thought, a not

unreasonable belief that the section was

effectively 15 years.

DEANE J:	Why do you say that that belief existed and
influenced the legislature?
MR BONGIORNO:	Not the legislature, the government,

Your Honour. The commencement of the Act as

distinct from its assent.

MASON CJ: Yes, but why do you say it influenced the

government?

MR BONGIORNO:	I am sorry, perhaps I am not - - -
DEANE J:	And what has the view of the government got to do

with it? We are concerned with the legislature.

MR BONGIORNO:  Only that the question of commencement of the

Act by virtue of its commencement provisions was a matter for the government in the proper sense of

that term, and that is derived from section 2 of

the Sentencing Act that it comes into effect on a

day or days to be proclaimed. If I could perhaps

go back: at the date of its assent in June 1991 it

had been, in effect - section 321I had been in

effect for some eight or nine years •. I am unable

to assist the Court as to whether any sentences

were passed in that time in respect to incitement

to murder. As my learned friend said, it is a very

rare offence. But certainly there was nothing
which led the legislature to believe that the

interpretation ultimately given to the section by

this Court would be the interpretation.

Dimozantos 11 17/6/93

DEANE J: But I do not follow what you are saying. We have

the Full Court saying:  "Parliament proceeded on a

wrong view of the law because of the decisions of

this Court." I mean the supreme court. "You now agree that there were no decisions of the supreme

court. Why is it that you are suggesting that

there is nothing wrong in saying that Parliament

proceeded on the wrong view of the law?" In other

words, why should we perceive that Parliament did

not understand the law it had earlier enacted?

MR BONGIORNO: With respect, Your Honour, I think what I am

not putting clearly is - if I can take Your Honour

to the bottom of page 32, the proposition which

commences with the words:

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, as it were, to explain that

proposition. I have to concede that the

explanation does not fit the proposition, I concede

that. ·

MASON CJ:	What is the explanation?
MR BONGIORNO:	The explanation they give is that - they do

not then go on to say that Parliament enacted the

Act on a mistaken view of the law, they effectively

say the government proclaimed the Act on a mistaken

view of the law.

DEANE J:  No, they are saying it surprised the Victorian

legislature.

MASON CJ: They said that at the bottom of 32 and the top of

33. This is fundamental to what they are saying on

this point.

MR BONGIORNO: 

It is until, in our submission, you read the

next paragraph, which makes it clear what they are
saying, and I have to concede that the next

paragraph does not sit happily with the paragraph
immediately before it.

MASON CJ: But it is only, in a sense, the legislature's

intention that we are concerned with. We are not

concerned with the government's intention.

MR BONGIORNO:  No, I concede that.

MASON CJ: So, what is the explanation for these statements

about the surprise of the Victorian legislature?

Dimozantos 12 17/6/93

MR BONGIORNO:  The only explanation that I can offer the

Court is that it would appear that the Court of

Criminal Appeal has dealt with the question of

proclamation and legislation in virtually a

compendious way.

MASON CJ: I mean, that is a fundamental error. Surely they

would not have made such a fundamental error when

you are dealing with legislative intention.

MR BONGIORNO: Well, Your Honour, that is the only

explanation that I can offer for the first full

paragraph on page 33 where the Court talks about

what in fact happened. The Act itself has clearly

within it the date upon which it was assented to.

It is stated on the front page. So unless one

attributes to the Court a series of mistaken

chronologies as well, it could not be said that

they would be in ignorance of when the Act was

passed and when the High Court handed down its

decision because they are not facts that are

capable of dispute.

DEANE J:  So there can be no doubt. Mr Bongiorno, can you

point to anything at all that supports the

supreme court's statement that it is clear that the

High Court's view surprised the Victorian

legislature?

MR BONGIORNO:  No, I cannot, Your Honour. I can only seek

to qualify it by reference to the court's

explanation in the next paragraph, which seems, in

our submission, to be explaining why they say the

legislature was surprised, but it does not talk

about the legislature, of course, it talks about

the commencing of the Act. That is why I said to

His Honour the Chief Justice that it seems as if

the court has been compendiously talking about the
commencement or the putting into effect of this law
being the two steps of legislation and

proclamation.

DEANE J: Well now, can I ask you this. What if one takes

the very large step of presuming the Victorian

legislature understood its own legislation when it

enacted the Sentencing Act. Where does that lead

us in this case in the situation where the supreme

court has discounted the relevance of the current

fact that the maximum penalty was five years by

reason of an assertion which you do··not seek to

justify that the decision of this Court surprised

the Victorian legislature?

MR BONGIORNO: If I understand Your Honour's question

correctly, I cannot argue that as at June 1991 - as

at immediately prior to 25 June 1991, which is the

date of royal assent, I could not argue that the

Dimozantos 13 17/6/93

legislature understood section 321I in any sense

other than that which the High Court ultimately

said it had.

DEANE J: That being so, and assume that Mr Costigan's

argument on section 117 is not accepted, when the

court came to sentence, it was a highly relevant
consideration that the crime for which the

applicant was being sentenced was now punishable by

a maximum of 5 years.	You would agree with that,
would you not?

MR BONGIORNO:  It was a relevant matter, yes. I would have

to concede that, Your Honour.

DEANE J: Obviously the Full Court discounted that on a

basis that you do not seek to uphold, that is, that

the Victorian Parliament had meant something else

when it enacted the legislation.

MR BONGIORNO:  As I conceded to Your Honour a moment ago, I

cannot suggest that at the time the Act was

passed - that as a matter of constitutional theory,

I cannot suggest that the Parliament understood the

relevant section to mean anything other than what

the High Court ultimately said it meant.

DEANE J: Well then, does not the final question come, and

that is - and it is not asked with any enthusiasm -

how in that situation can we escape granting leave

in terms of the interests of the administration of

justice?

MR BONGIORNO: Well, Your Honours, the court took into

account, at page 40 in resentencing Dimozantos -

and assuming the assumption that Your Honour put to

me that Mr Costigan's argument as to 174 is

incorrect:

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

22 April 1992, would fall to be sentenced on
the basis of a non-mollified available maximum
of 60 months.

So that the Court took into account the very

matter that Your Honour put to me, and that is that
the maximum is now, or was then, f1ve years. It

might be relevant for the Court to know that the

legislature has changed the whole game again and it

is now life. That is the current law. It has not

been proclaimed but Parliament has enacted a

further amendment to the Sentencing Act to make the

penalty for incitement to murder, life. It has

gone up from 15 to where some people thought it

Dimozantos 14 17/6/93

always was. But, in our submission, once the court

in its sentencing remarks on page 40 takes into

account those matters to which Your Honour Justice

Deane referred, well then, it has, unless Mr Costigan is right about 117(4) which, in our submission, he is not, then it has taken into

account all of the matters that it could take into

account.

DEANE J: Except do you not read the judgment of the Court

as making quite clear that they are discounting the

significance of the five-year then current maximum

by reason of the fact that the Victorian Parliament

made a most understandable mistake? Is that not

what the top of page 33 means?

MR BONGIORNO:  At the top of page 33, the Court says:

surprised amongst others the Victorian

legislature, a matter which may have some

relevance to our final orders.

But in the final order the Court specifically takes into account the basis of a non-mollified available

maximum of 60 months. In our submission, it could

do no more. It could do no more at that point than

give whatever is the appropriate credit of this now

relatively low maximum.

DEANE J: Yes, I see the force of that.

MR BONGIORNO:  And to take up Justice Gaudron's comment to

my learned friend, it is a non-mollified available

maximum of 60 months in that once you get into

this, after 22 April 1992, under the Sentencing Act

there are no remissions any further for a proper

Sentencing Act sentence, that is, one that is

passed appropriately after the commencement of that

Act.

GAUDRON J:  Do we know what this sentence is with

remissions?

MR BONGIORNO:	I am sorry, Your Honour?
GAUDRON J:	The sentence that was in fact passed by the

Cou~t of Criminal Appeal.

MR BONGIORNO:  Yes?

GAUDRON J: What is its effect with remissions?

MR BONGIORNO: Effectively, one third off both the head

sentence and the minimum sentence. So that it is -

nine with a minimum of seven becomes six with a

minimum of four and two thirds.

Dimozantos 15 17/6/93

t

attention: the matter of Boucher is presently The other matter I should draw"fct·tri."e ... Court:'"s"""'°"-

under appeal to the Court of Criminal Appeal and is

due to be heard next week, so it is still a matter for further debate. That is an appeal by Boucher,

not an appeal by me. Boucher seeks to reduce his

sentence on the basis of failure to comply with

another section of the Sentencing Act but which has

nothing to do with this appeal.

So far as the matters put by my learned friend

go to the issue of this particular case, I cannot,

in so far as there are matters to be raised in

respect of this particular case, I can say no more

than what I have said. So far as the issue

generally is concerned, I have already told my

learned friend, there will be no other cases in

Victoria, barring an application for leave to

appeal, a very very long way out of time which

would be unprecedented. There will be no other

cases affected by any ruling the Court gives as to,

ultimately, the meaning of section 117(4) which is

the thrust of the argument, ultimately, if special

leave is granted.

Ultimately, Your Honours, the position of the

Crown is that the Court of Criminal Appeal

correctly interpreted 117(4) and sentenced in

accordance with it, took into account the matters

that Justice Deane raised and accordingly that the

matter is not attended by sufficient doubt to

justify us a grant of special leave in any event.

Unless the Court has any specific matter, there is

nothing further that I wish to put to the Court.

MASON CJ: Yes, Mr Costigan.

MR COSTIGAN: Just one matter, if the Court pleases, arising

out of what my friend said, and that is that it is

Criminal Appeal, I understand, on Monday but his true that Mr Boucher is before the Court of	application is that he got too much and that his
sentence should be reduced because the Court did not take into account a section of the Sentencing
Act. So it may be that Boucher will fail in his
appeal. If he succeeds his sentence will be
reduced, which makes the difference between his
sentence and my client's sentence a11 the greater.
But I have nothing further to add.

DEANE J:  Mr Costigan, what do you say to Mr Bongiorno's

comment that what is said at page 40 of the book
indicates that what is said at pages 32 and 33

really lost its significance at the end of the day?

Dimozantos 16 17/6/93

I have put it a bit differently to the way he put

it, but that is something that is concerning me.

MR COSTIGAN:  It is not easy, if indeed proper, to do a

process of statutory interpretation on the judgment
of the court by isolating a particular sentence at

the end of the report and discounting all the

material that has led up to the judgment. We would

say that it is not possible merely by referring to

the fact that someone sentenced under the new law

is going to get five years as compared to my

client, to disregard what was clearly in the minds

of the court earlier in the judgment as being

relevarit considerations.

DEANE J: Well now, could I ask you one more question and it

penalty does go back, or does go to life, what

is probably an unfair question. What if what

would you say the position of the supreme court
would be if this court quashed the later sentence

and then sent it back to them for a sentence at a

time when life was the appropriate sentence, or the

maximum sentence?

MR COSTIGAN: Well now, Your Honour, that can only be

described as an embarrassing question.

MASON CJ:  Mr Bongiorno, do you want to say something on

that?

MR BONGIORNO:  Yes, I do, Your Honour. I concede that the

court could not sentence on the new basis because

of section 114(2) which - - -

DEANE J:  My question was directed to the relevance of the

five year maximum that existed last time round, if
at the new time the current maximum was no longer

five years but life.

MR BONGIORNO: There is a specific provision in 114(1), if

an Act, including this Act, or a subordinate

instrument increases the penalty or the maximum or

minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision affecting the

increases.

So that the new maximum of life would be irrelevant

for the purpose of a sentencing exe~cise conducted

under 117(4) or otherwise.

DEANE J: That is not really so if we are dealing with the

relevance of the five years in the current

sentence, because that was not applicable either.

Dimozantos	17	17/6/93
MR BONGIORNO:	No, it was not.	The Court, it would appear,

took account of the five year maximum on the basis

of giving some weight to what he had previously

said in Carroll's case and that was an ameliorative

decision. It was never interpreted, or certainly

never seen to be a provision which would ever be

applied retrospectively to a prisoner in that

situation.

MASON CJ: Yes, Mr Costigan.

MR COSTIGAN:  I suspect I may have lost my embarrassment,

Your Honour.

MASON CJ:	I think you have.
MR COSTIGAN:	I do not have any further submissions to put

to the Court.

MASON CJ:  The Court will take a short adjournment.

AT 12.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.20 PM:

MASON CJ:  The Court will announce its decision in this case

at 2.00 or at the conclusion of the matter that is

then proceeding. Mr Costigan and Mr Bongiorno,

there is no occasion for you to return, as long as

there is somebody from behind you to ascertain what

the result is. ·

MR COSTIGAN: If the Court pleases.

MR BONGIORNO: If the Court pleases.

AT 12.21 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.07 PM

MASON CJ:  In this case the Court has come to the conclusion

that there should be a grant of special leave to

appeal, but that grant will exclude the ground that

relates to the interpretation of section 117 of the

Dimozantos 18 17/6/93

Sentencing Act 1991, in other words, ground 2(i) on

page 98 in the draft notice of appeal should be

excluded. I should mention that the reference in

the draft notice of appeal is constantly to

section 119; it should be a reference to 117, from

recollection. Mr Bongiorno?

MR BONGIORNO:  I will leave it to my friends, Your Honour,

but I think it does mean 119, because it is 119 that incorporates the new sentencing provision.

MASON CJ:	I see.
MR BONGIORNO:	I thought, with respect, the same way as the

Court when I first read it, but I think that is

right. It is not my document, of course.

MASON CJ:  In any events, the intention of the Court is

clear: the ground that related to the

interpretation of that section, in particular

subsection (4), is to be excluded from the grant of

special leave to appeal. We are excluding it

because the Court is of opinion that the

construction placed on that provision by the Court

of Criminal Appeal was correct.

MR BONGIORNO: If the Court pleases.

AT 2.10 PM THE MATTER WAS ADJOURNED SINE DIE

Dimozantos 19 17/6/93