Director of Public Prosecutions v Dalgliesh (a pseudonym)

[2016] HCATrans 312

[2016] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2016

B e t w e e n -

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

CHARLIE DALGLIESH (A PSEUDONYM)

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 16 DECEMBER 2016, AT 11.16 AM

Copyright in the High Court of Australia

MR C.B. BOYCE, SC:   If the Court pleases, I appear for the applicant, with MR B.L. SONNET.  (instructed by Solicitor for Public Prosecutions)

MR O.P. HOLDENSON, QC:   If the Court pleases, I appear with MR P.S. TIWANA, for the respondent.  (instructed by Joseph Burke Law)

KIEFEL J:   Yes, thank you, Mr Boyce.

MR BOYCE:   Your Honours, in one sense, this case is the case of Kilic in reverse and by that I am referring to the case to R v Kilic [2016] HCA 48, the decision your Honours handed down on 7 December, in which it was held that the court below had erred in reducing a sentence by a misapplication of current sentencing practice and you find that at 24 of the decision.

Here, we contend that there has been a failure to increase through a similar misapplication of current sentencing practice.  The point of principle at stake is the question of the correct manner in which equal justice or consistency of sentencing can be achieved through the instinctive or intuitive synthesis methodology and we contend that this is a good vehicle for consideration of that case because, insofar as there were anything that could roughly be called comparable cases, it is our contention that nothing reached down to the level of the sentence that was imposed in this case, namely, three and a half years on count 1.  This question ‑ ‑ ‑

KIEFEL J:   Mr Boyce, assuming those matters in your favour for present purposes, you would have to overcome the concessions made by the Crown, would you not, to get to this point?

MR BOYCE:   No, your Honour, because if your Honour is referring to the point that is made against us by Mr Holdenson, namely, that we are seeking to somehow resile from a position that we maintained below, that is not so.  Do I understand your Honour the Chief Justice ‑ ‑ ‑

KIEFEL J:   Yes, that is correct.

MR BOYCE:   You see, what his point really is, is that our success was contingent upon uplift.  Now, we never said that below, that our success below.  We had an appeal below and for Mr Holdenson to say that against us, namely, to say, well, our success is contingent upon uplift and uplift should not be visited upon the respondent, is merely to rehearse what the Court of Appeal said below.

That is to say, the sentence is within range but we would uplift.  Now, we disagree with the Court of Appeal below insofar as it dismissed our appeal. The simple fact is we had an appeal.  We went to the Court of Appeal and submitted that this sentence was grossly inadequate.

NETTLE J:   On current sentencing practices.

MR BOYCE:   As they stood at the time, without any need and that this was demonstrable, patently demonstrable by reference to those cases, none of which reached down to the level of three and a half years.

NETTLE J:   Well, Mr Boyce, if that is the limit of the Crown’s case here, what would this case add in point of principle to what has already been decided in Kilic?

MR BOYCE:   Well, Kilic goes so far but we would contend perhaps not far enough.  Firstly, in point of principle, the difference is this:  this Court in Kilic did decide that there had been an elevation of current sentencing practices and that that had, as it were, fettered the exercise of the Court of Appeal’s discretion, such that the decrease was wrong.  It is said that there had not been a sufficient array of cases to make the pattern or to set the range.

We make the same contention, but what we contend is a far deeper and more profound point and a point that is far more important, we would contend, the sentencing in Victoria, in that we say that to sentence in this way – that is to say, that the range is set by that which has gone before, that it is capped and collared by which has gone before, is the sentence otherwise than in accordance with the instinctive synthesis.

It is, in essence, to introduce a two‑stage or perhaps even three‑stage level or procedure of sentencing.  And the reason why it is important, your Honours, is this, because we know ‑ and we know this from as far back as 1936 when Sir Frederick Jordan, as adopted in Williscroft, said ‑ that a sentencing judge in imposing or in carrying out the instinctive synthesis methodology is to gauge or to find the moral sense of the community of which he or she is a part ‑ ‑ ‑

NETTLE J:   The problem is this is not the way the Crown ran the case below.  On the Crown case below you accepted Ashdown and you argued, by reference to current sentencing practices, that there should be a greater penalty than was in fact imposed.  What you are seeking to argue now, as you have just reformulated, is the court should not have been constrained by the current sentencing practices as they were.  That is to go against Ashdown.

MR BOYCE:   No, no.  Can I deal with Ashdown?  We went to the Court of Appeal below and said, “This sentence does not sit in accordance with current sentencing practices to the extent they should be properly taken into account merely as one factor in the instinctive synthesis”.

Now, we have been consistent.  If current sentencing practices, as they stood at the time, are taken into account as merely one factor and are not constraining – and this is what we put in the court below – then this sentence is manifestly inadequate.  As it happens in future cases – in future cases, not this case – we would contend that such practices are too low, have no bearing upon this case.  But we had an appeal and we have not changed, with respect, our position.  Our position below was that there should be no constraint.  It is merely one factor among many.

It may well be that current sentencing practices set a certain range, but that is one factor to be taken into account in the name of equality and equal justice, which of course is a laudable principle and a justifiable principle.  But so long as sentencing judges are required to look back at what has gone before and be, as it were, capped and collared by it or bound by it – and we say this is really the theory of sentencing that has been promulgated in Hassan’s Case, sentencing courts cannot respond to what Sir Frederick called “the moral sentiment of the community”.  And what do you need then?

If you were capped and collared by it and not simply just taking it into account as one of many matters that ought be taken into account as part of the intuitive synthesis, then ‑ you see, can I put it this way?  The need for a formal uplift in current sentencing practices has been, in the manner in which it appears in this case, has occurred in the court below, and I think your Honour might agree, it has been a relatively recent phenomenon to be done so self‑consciously and prescriptively, as it were.

It might be that the reason for it to exist in this way or the reason why it exists in this way is because courts have felt constrained by that which has gone before, but courts never used to feel so constrained; it was simply one factor that was taken into account.  So I agree with your Honour.  Yes, of course, we did argue for an increase in current sentencing practices and we did say that should not be visited upon the respondent. 

We do not resile from that but it is in no way inconsistent for us to put forward the point that we do in the manner in which we do – that is to say, on current sentencing practices, as they stood, taking into account as merely one matter in the instinctive synthesis, to set a range for this particular offence, which may be different from that which has gone before, means that our appeal into that court should have succeeded.

We did not go to the court waiving success on our appeal and seeking merely an advisory opinion.  We had an appeal.  We were contacted by the Court of Appeal and asked whether we would invite the Court of Appeal to engage in the uplift procedure.  We complied with that procedure.

We could not submit in the Court of Appeal below that any increase in sentencing practices be visited upon the respondent.  Why?  Because we had not done so at first instance.  We had an appeal before any of this came up.

KIEFEL J:   I think we follow your argument, thank you, Mr Boyce.

MR BOYCE:   Thank you.  So really, your Honours, the point that is made against us is really, we submit, simply to repeat that which the court has said which we disagree with and to effectively render our appeal to that court a nullity, but that was not so.

So in answer to ‑ I think it was the Chief Justice or it may have been Justice Nettle’s point, what does this case raise that has not been raised or was not dealt with specifically in Kilic is the issue of the deeper problem, the problem that is restraining sentencing judges from keeping faith with the community that they are sworn to serve, and we would contend, with respect, an overemphasis in the name of equality on that which has come before.

NETTLE J:   Is not the uplift procedure part of that?  Do the two not have to be dealt with together?

MR BOYCE:   It can be part of it but it does not have to be part of it.  The fact is, hitherto what would have occurred in this case is, we would contend, the Court of Appeal ought to have allowed our appeal and that would have decided the case in our favour on current – the decision of the Court of Appeal would then, by means of deciding the case, have sent a message in terms of current sentencing practice.  It does not need to be so prescriptive because the Court of Appeal would not have felt bound by that which had gone before, it would simply have been one matter to be taken into account.

NETTLE J:   But it would seem that, even if we were to grant you leave in this case, the question of whether or not the uplift procedure is appropriate would not be considered.

MR BOYCE:   It need not be considered, no.  The link I draw between that procedure and the basal error that I contend for in this Court is inferential, I agree.  That is to say, you are only going to find yourself in a situation of having to have a prescriptive increase without deciding the case at hand or without necessarily that having an effect upon the case at hand.  It will only

arise if you felt bound by that which had come before.  So, inferentially it is the same point.

NETTLE J:   Yes.

MR BOYCE:   It may come up.

NETTLE J:   And yet, you did not seek to argue below that the uplift procedure should be departed from?

MR BOYCE:   No, no, that is true.  There is an inconsistency there.  I agree with you, your Honour.  But, all I can say in answer to that is that we had an appeal.  We had an appeal that we instituted and argued on normal terms.

NETTLE J:   It is just that it may be that because the two sides of the coin cannot be dealt with at once, this is not the appropriate vehicle in which to consider the issue.

MR BOYCE:   We would contend it is not the case that the Court would be constrained if special leave was granted to not say something about that procedure because if we are right in saying that – leaving aside the discussion that took place below about future cases because that is really all it was.  It was a discussion about what might happen in future cases.  If the inference is clear that that discussion arose because of the fundamental misconception of the way in which CSP should be dealt with below in the disposition of our case, then it does arise. 

But, your Honour is correct.  We were invited to participate in the proceeding, in that discussion about future cases, and we did so.  I concede that.  But, we did not give up our appeal.  Our appeal was not contingent upon us succeeding with uplift otherwise we would have had no appeal.  Our appeal – I am sorry, your Honour.

KIEFEL J:   I think you might be repeating yourself at this point, Mr Boyce.

MR BOYCE:   I am.  I am terribly sorry, your Honour.  That is our argument.  I do not think anything else.

KIEFEL J:   Thank you.  Yes, Mr Holdenson.

MR HOLDENSON:   On this application, the applicant challenges the decision of the court below on a Crown appeal against sentence.  Authority in this Court makes it absolutely plain that the purpose of Crown appeals against sentence is to lay down principles for the guidance of sentencing judges.  The reasons for judgment in this case evidence the fact that this Crown appeal undoubtedly achieved that purpose.  As is clear from the discussion with my friend, Mr Boyce, this Court unequivocally held that the sentences hitherto imposed for offences of incest, of mid‑range seriousness, were inadequate and they had to be uplifted.  That holding has not been challenged in this Court with the consequence that that holding remains, and will remain, the law in this State.  That strongly suggests that there is no question of general importance involved in this application and that is the first reason why there ought be no grant of special leave.

The second reason as to why there ought be no grant of special leave is that at the end of the day, notwithstanding what Mr Boyce has attempted to do, this is simply a case where the Crown are seeking to argue on the appeal in this Court that the sentence imposed on charge 1 is manifestly inadequate.  That is made expressly clear in the application book within the applicant’s summary of argument at page 89 where at the foot of the page the last sentence within paragraph 3.5 it is said and I quote:

The applicant contends that the sentence on Charge 1 is manifestly inadequate having regard to all the circumstances of the case including current sentencing practices as they stood at the time of sentence.

This Court has invariably and steadfastly refused to grant special leave to appeal in order to consider the question of whether or not an individual sentence is manifestly excessive or manifestly inadequate.  In short, such a question involves no point of principle.

Now, here in an effort to avoid that argument – in an effort to avoid that which, in my submission, is an insurmountable hurdle, the Crown says what the court below did was elevate this notion of current sentencing practices to some sort of determining factor or criterion.  What they are saying is the court below fettered its exercise of discretion with respect to the consideration of the – the discretion of instinctive synthesis by having total regard to current sentencing practices.  But that is not what occurred below.  As one reads the judgment, and perhaps I ought briefly take your Honours through the judgment, commencing at page 54 of the application book, your Honours will see on page 54 and 55 and 56 and 57 and 58 an analysis of the 12 or 13 so‑called comparable cases involving the same statutory offence committed in the same way with the same aggravating factor which I need not characterise orally. 

Then the court considered the requisite submissions made by the parties.  On page 58 at paragraph 40 there is the submission made by my junior in the court below by reference to the dozen or so cases but at the end of that paragraph he draws attention to the matters which the sentencing judge found in mitigation of sentence which are then listed within paragraph 41 of the judgment below over to the head of page 59.  Then the Crown’s submissions are set out.  Then, on page 61, the court asks itself, for present purposes, the correct question.  On page 61 about a third of the way down the page in paragraph 48:

The question for decision under this ground was whether, in light of the mitigating factors that CD could call in aid, the sentence on charge 1 was within the permissible range open to the sentencing judge.

Now, when regard is had to the language of that paragraph, in the light of the mitigating factors, that is hardly the language that the court would use if it was treating current sentencing practices as the determinant. 

But it goes on, paragraph 49, the next paragraph, within that paragraph, there are two indicators that the court is not treating current sentencing practices as the sole matter.  In the first and second lines, the reference is made to:

judges to have regard to current sentencing practice –

That is not the language which suggests that the court is fettering its exercise of discretion.  And then in the last couple of lines, gives a similar indicator when the court explains that:

Comparable cases . . . ‘provide an important, though limited, guide to the range of sentences reasonably open –

And then, over the page on page 62 of the application book, the court answers the question it had asked and, in my submission, the correct question, the one set out in paragraph 48, in a manner adverse to the Crown.  Although the court uses the language in paragraph 53 “But for the constraints of” what the court has done when one works through those two pages of reasoning is used that range of sentences as, if you like, the backdrop to examine the impugned sentence by reference to the facts and circumstances of this case, one of the circumstances being the six mitigating factors, the subject of the findings of the learned sentencing judge, and that is absolutely in accordance with what this Court held in Pham last year, 2015, and it is in no way inconsistent with this Court’s reasoning a few weeks ago in Kilic, to which I will come in a moment.

So, what the Crown has put forward as the so‑called error in principle which, in our submission, is just in an effort to avoid what this case is really about, namely, is a sentence manifestly inadequate, is not made out on the reasoning below and so the point does not arise.  Now, moving on to Kilic, in Kilic, the High Court identified the erroneous reasoning in the judgment of the Court of Appeal but that reasoning is not repeated in this case.

In this case, the court below went through not half a dozen but 12 or 13 cases, unlike in Kilic, the 12 or 13 cases each involved the very same statutory offence.  Each of them involved the same breach of trust ‑ that might be saying nothing more than what is implicit within the elements of the offence in any event ‑ and more particularly, or more importantly, the very same aggravating factor.  And so this Court had before it, to use if you like as a yardstick to illustrate but not define and not confine the possible range, a proper range, a proper number of sentencing cases.

But, in addition to what we have set out in our summary of argument in the application book, which has been the subject of discussion between your Honours and our friend, Mr Boyce, there is one final submission which is pretty much further and in the alternative to all that we have put.  There is in this case an element of unfairness and it is of consequence, as I will explain.  The Crown – both in the court below and in this Court – have relied upon that dozen or so cases which are said to be comparable cases and they have done that for the purpose of identifying the relevant range of sentences which might have been imposed for the offence, the subject of charge 1.

But, the prosecutor was duty‑bound to do that at first instance, that is, on the plea before the learned sentencing judge, and the transcript is silent as to that.  I am not suggesting that the prosecutor at first instance should have made the submission that sentences for this offence committed in this way should be uplifted, but he was duty‑bound to draw to the judge’s attention the comparable cases in order to identify the possible range so that that judge, the learned sentencing judge, did not fall into error and impose a sentence which could be described as manifestly inadequate.

So, put simply and bluntly, what the Crown is doing in this Court, as it did below, is the very thing which the prosecutor should have done on the plea.  Now, in circumstances where it is trite that the jurisdiction to grant special leave to appeal to the Crown in a criminal matter is to be sparingly exercised and, only in exceptional circumstances, this is a matter of real significance.

KIEFEL J:   Mr Holdenson, if, as you say, the Crown was obliged to put forward the dozen or so cases that it did, how does this operate unfairly to you?

MR HOLDENSON:   Because they are having a second bite at the cherry of what they should have done at first instance.  They should have done it at

first instance in an effort to get the sentence which they say should have been imposed, a sentence which would not satisfy the description of being manifestly inadequate, and they did not.  I hesitate to use the word “waiver” or “election” but they did not do it when they were duty‑bound to do it.  And, what do they do?  They then do it in the court below, the Court of Appeal, and fail and here they are in the High Court doing the same thing, trying to get this Court to hold that the sentence imposed on charge 1 is manifestly inadequate.

So, we get to the point – if the Court accepts that there is that unfairness, the second bit of the cherry ‑ that this Court ought not exercise its discretion to grant special leave to the Crown so that the Crown can do what they should already have done at first instance.  Keeping in mind, also with respect to the discretion, we rely upon the other points in that there is no point of public importance here because it is not a point of general importance for this Court to decide whether or not that sentence on that one charge is manifestly inadequate.  If the Court pleases.

KIEFEL J:   Mr Boyce, is there anything in reply?

MR BOYCE:   Yes, there is, your Honour.  We are not asking this Court to determine whether or not the sentence is manifestly inadequate or otherwise; we are seeking permission for this case to be dealt with according to law.  The question of abiding public importance is the ability of sentencing judges to exercise their discretion unfettered by that which has gone before and to properly recognise the moral sense of the community.  Mr Holdenson took you to the reasoning of the court below.  It could be no clearer at application book 62, paragraphs 52 to 53 – reading from their :

On the hearing of the appeal, by contrast, the Director drew attention to a large number of decisions which were said to provide guidance for the purposes of determining the present question.  In the end, however, it was the decisions to which . . . counsel drew our attention (in particular, BGJ –

which I think should be “BDJ”:

and RSJ) –

two decisions and we hark back to Kilic.  Was there a pattern?  There was maybe one decision or maybe two decisions:

which persuaded us that the sentence on charge 1, though extremely lenient, was not wholly outside the permissible range.  Ground 1 therefore failed.

But for the constraints of current sentencing practice, the objective seriousness of the conduct . . . demanded a considerably longer sentence ‑

There could be no clearer demonstration, in our respectful submission, of the Court doing that which we say is contrary to the instinctive synthesis – that is, to look back, to see what the range of penalties is that hitherto have been imposed and fit the case within that.  And if a case happens to go down to three and a half and you can slip it in, maybe on a County Court decision, well then it is within the range and the constraints of that current sentencing practice disabled the Court to intervene but we may need to have an uplift.

That, we would respectfully submit, is at the heart of a significant point of principle when it comes to the exercise of the instinctive synthesis.  We are not simply coming to this Court to seek your Honours’ view on whether it is a matter of abiding importance in terms of sentencing principle.

Insofar as my learned friend says, “It’s all done and dusted, as it were, because the Court said what it has had to say about future cases, so really nothing more need be said,” there is the question of this particular sentence which the Court, on any view, is grossly inadequate.  Secondly, there is the broader point of principle to which we contend, which we respectfully submit ought be the subject of this Court.

Finally, on my learned friend’s point, which is the Crown’s behaviour below, this sentencing judge is I think probably the most senior, or one of the most senior – he is pretty senior – judge in the ‑ ‑ ‑

KIEFEL J:   I do not think it is necessary to argue about that.  I see the time, Mr Boyce.  Could you make your point quickly.

MR BOYCE:   I will make it very quickly.  In essence, what Mr Holdenson is saying is that this Court applied the residual discretion for the first time.  Nothing was said in the court below, in my respectful submission.  The court below could quite easily have said, “Even if we were wrong about manifest inadequacy, the behaviour of the prosecutor was so egregious we would have applied the residual discretion against the Crown in any event.  It did not say that and so it ought not stand against the application that we make.

Those are our submissions, with respect, your Honour.

KIEFEL J:   Thank you.  The Court will adjourn to consider the course that it will take. 

AT 11.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.51 AM:

KIEFEL J:   There will be a grant of special leave in this matter.  Would the appeal take any more than half a day, Mr Boyce?

MR BOYCE:   I do not think so, your Honour, no, I do not.

KIEFEL J:   Would you agree with that, Mr Holdenson?

MR HOLDENSON:   I do not disagree.

KIEFEL J:   Thank you for that.  The Court will now adjourn to reconstitute and establish another video link.

MR HOLDENSON:   Just before the Court adjourns, if I might make an application.  If I could take your Honours to page 95 of the application book; on page 95 the applicant indicates in the applicant’s summary of argument that:

The applicant undertakes to pay the reasonable costs of the respondent in respect of this application.

The respondent does make that application for those reasonable costs and, indeed, makes the submission that there ought be as a condition of the grant of special leave a requirement that the applicant, now appellant, pay those costs.  There is one other matter which I should draw to the Court’s attention, just for the Court’s assistance, the applicant needed an extension of time but maybe that was implicit within the order made. 

KIEFEL J:   Thank you, I was not aware of that.  You have no objection, I take it?

MR BOYCE:   No, as to this application, we have made our position clear on the question of costs and as to the appeal proper.  We would agree to pay the respondent’s reasonable costs.  As to the extension of time, I think the

affidavit of Mr Fluxman in the application book talks of a significant gap between the orders and the reasons, we did not know ‑ ‑ ‑

KIEFEL J:   The extension of time is granted.

MR BOYCE:   As the Court pleases.

KIEFEL J:   The Court notes the two undertakings as to costs and it need do no more.

MR BOYCE:   As the Court pleases.

KIEFEL J:   Thank you.

AT 11.53 AM THE MATTER WAS CONCLUDED