Director of Public Prosecutions v Dickson

[2012] HCATrans 65

[2012] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M122 of 2011

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

GEORGE ELLIOTT DICKSON

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 10.03 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, SC:   If it please your Honours, I appear with my learned friend, MR B.L. SONNET, on behalf of the applicant, and Mr Sonnet will make the submissions.  (instructed by Director of Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR D.A. DANN, for the respondent.  (instructed by Marshall (C.) & Associates)

HAYNE J:   Yes, Mr Sonnet.

MR SONNET:   Your Honours, we say that the special leave point that is identified in this application is of particular importance to the administration of criminal justice in Victoria.  The point that we seek to raise is the correct approach to be taken by a sentencing judge when sentencing an offender for offences that have been committed while subject to a parole release order and at the time that the offender falls to be sentenced the offender’s parole sentence has then been reclaimed by the correctional authorities. 

That particular scenario plays out on a daily basis in the courts in Victoria and raises a number of important sentencing principles of which there are at least four and there is a considerable degree of interplay between the four relevant principles and those principles are extracted in the Court of Appeal’s judgment.

CRENNAN J:   Well, this case had its unusual circumstances in a context of you referring there to these matters playing out recurrently, as did Bradley’s Case also.

MR SONNET:   That is so, your Honour.

CRENNAN J:   If one looks at page 271 of the application book, paragraph 51, there is a statement there in relation to matters of principle.  I particularly draw your attention to the last two sentences and I had some difficulty in those circumstances in appreciating why it was that you thought the point needed to be agitated in the context of this case.

MR SONNET:   Well, the point that we seek to raise is the efficacy of the orders made by the trial judge and those orders, obviously, were challenged by the Crown in the Court of Appeal.  Those orders, as they ‑ ‑ ‑

HAYNE J:   Having been orders that were invited by the prosecution before the sentencing judge.

MR SONNET:   That is accepted ‑ ‑ ‑

HAYNE J:   How many times then would this man have stood for sentence?  I think we are up to about number four, are we not?

MR SONNET:   That is so, your Honour.

HAYNE J:   Why would it be in the interests of justice in this particular case that the prosecution, having invited a particular sentencing disposition on, I think, what - two, three occasions we should now take it and adjust his sentence?

MR SONNET:   Well, we certainly accept that the Crown did not cover itself in glory in terms of how it approached the matter, but as the Court of Appeal has remarked in its judgment ‑ ‑ ‑

HAYNE J:   But what about my question of why should we take this up when this man has stood for sentence, has been sentenced in accordance with the submissions of the prosecution more than once?

MR SONNET:   That is so.  We say because if this sentence is left unchanged, it would perpetuate an error in sentencing law.

HAYNE J:   What is the error in the paragraph to which her Honour Justice Crennan drew your attention?  Where is the error of principle in what the Court of Appeal says in paragraph 51 of its reasons?

MR SONNET:   Well, we say the error is contained in the last two lines – that it is incorrect to describe an outstanding claim parole period and a non‑parole period fixed by the trial judge as the overall minimum term.  The minimum term that has been fixed by the trial judge, in this case, is one of three years and nine months imprisonment.  As I understand there is no dispute between the parties.  That is the period that the correctional authorities have fixed on in terms of working out this particular offender’s earliest release date. 

In order to give effect to what the trial judge intended, the Adult Parole Board, in a sense, has its discretion fettered by the reasons that are contained in the application book and set out by the trial judge, that is, he seeks to ensure that the Adult Parole Board does not release the offender at the earliest possible release date, but after the expiry of a further three years and three months. 

HAYNE J:   Does not a sentencing judge in sentencing an offender fix the non‑parole period as the minimum time that the offender should spend in custody for the offence for which the offender stands for sentence?

MR SONNET:   That is so, your Honour.  We do not cavil with that principle.

HAYNE J:   Then, what is the further or additional elaboration of that principle for which you contend?

MR SONNET:   Well, we do not challenge that principle.  What we say is that the approach taken by the Court of Appeal in Bradley has refined that, that is, in order to give effect to the intention of the trial judge in this case, the Adult Parole Board’s discretion is fettered and it, instead of ‑ ‑ ‑

HAYNE J:   What the Parole Board does is a matter for the Parole Board.

MR SONNET:   That is so.

HAYNE J:   What the courts do is fix sentences – in this case a non‑parole period – fix it as the minimum time the offender must spend in custody for this offending.

MR SONNET:   That is so, your Honour.

HAYNE J:   And in fixing that you have regard to all sorts of things, one of which is the offender’s current state of affairs in respect of earlier offending.

MR SONNET:   Yes, and the trial judge in this case makes that perfectly plain, but his intention is also made perfectly plain in his sentencing reasons that he intends for this offender to serve seven years in custody as a consequence of his orders.  But we say his orders do not achieve that and that is reflected in the approach taken by the correctional authorities.

HAYNE J:   Well, is then the trial judge in making those statements sentencing the offender in respect of the offence for which the offender stands for sentence or is he doing something else?

MR SONNET:   Well, we say in this case he is doing something else.  He is taking into account what the Adult Parole Board may do in respect of an outstanding parole sentence.

HAYNE J:   Can I put it to you this way?  I am struck by the fact that in paragraph 51 the Court of Appeal state what they understand to be the relevant principle.  The relevant principle is fix non‑parole period as the minimum that ought to be served, et cetera – on the face of it, an orthodox statement of principle.  Now, if that is the principle established by the Court of Appeal, what would you have us do if, leaving aside the particular circumstances of this case, we were to take the issue?  What is it you want us to say?

MR SONNET:   The issue that we say that is raised is the correct approach to be taken by a sentencing judge in dealing with an offender who has had his parole reclaimed at the time of sentence.  That is the interplay between section 5(2AA)(a) and section 16(3B).  Now, the interplay between those two provisions has been remarked upon by the Court of Appeal on several occasions and the Court of Appeal itself, in its judgment, described that interplay as particularly complex, susceptible to leading to appealable error and a very difficult task that confronts a sentencing judge when dealing with these very issues. 

We say in this particular case, the orders that had been made by the sentencing judge do not reflect what is contained in his sentencing reasons.  The minimum term that has been fixed according to the authorities such as Power and the like is three years nine months.  But the sentencing judge makes it quite plain that he intended for this particular offender to be sentenced on the offences before him to serve seven years in custody.

HAYNE J:   Be it so, does that not then come to the point that if you have a complaint, it is a complaint that three/nine was too small a non‑parole period?  That is a perfectly orthodox question to be raised on Crown appeal, I understand that, but where is this deeper or larger principle that you say is engaged?  That is what I am having difficulty grasping.

MR SONNET:   The appeal taken by the Crown to the Court of Appeal raised two issues, that is, the first issue, the manifest inadequacy of the non‑parole period set.  The second issue raised the correct approach to be taken in sentencing offenders when obviously, your Honour, they have committed offences in breach of parole and their parole has been reclaimed.  The two issues were laid before the Court of Appeal.  The Crown attacked the approach taken by the Court of Appeal in Bradley, and we accept that we led the Court of Appeal into error ‑ ‑ ‑

CRENNAN J:   Below this argument, I think, lies a certain view taken about subsection 5(2AA)(a).  Is that not right?

MR SONNET:   Precisely, and that is the issue.  We say there is an incorrect interpretation being placed on that subsection and that causes the error to occur in this particular case and in following cases.

CRENNAN J:   What do you urge is the correct construction?

MR SONNET:   We say that in respect of section 5(2AA)(a) that that has no room to operate when dealing with this particular scenario.  It simply enjoins a sentencing judge from speculating as to what the parole authorities may or may not do.  For example, if a – I am taking facts of an unrelated case – if an offender is before the court and has had a very bad history and has had problems with getting parole on previous occasions, it prevents the sentencing judge from saying, “Well, I am going to take into account the fact that you have had difficulties in the past getting parole.  Therefore, I am going to moderate the sentence that I am going to impose in the circumstances of this case”.  That is all that we say that section 5(2AA)(a) does.

The more important provision is section 16(3B), and that is a clear intent by the Parliament to ensure in cases like this that, absent exceptional circumstances, the sentence that has been imposed by the trial judge is to be served cumulatively upon any outstanding parole period.  The second vice in this particular application that we identify is that that intent has been thwarted, because in this case, the outstanding reclaimed period has been in effect subtracted from an otherwise appropriate non‑parole period, and we know the appropriate parole period that was contemplated by the trial judge in this case – initially, it was nine years six months as the total effective sentence, and seven years as the non-parole period.

He fixed that under an incorrect section, then upon recalling the sentence, he then fixes it under the correct section and then turns his attention to the operation of section 16(3B), which did not occur at first instance.  We say those two provisions require correct interpretation and ought to arrive at the correct result when dealing with these types of cases.

The other matter that we say arises in this case is the impermissible fetter upon the Parole Board by the reasons and order made by the trial judge.  In his reasons for sentence, the trial judge indicates that he wishes the Adult Parole Board to keep the offender in custody for a further three years and three months and we say that is an impermissible fetter according to the authorities. 

To make good our point, we can refer to another example.  Change the figures.  Let us say in this case the outstanding parole period was much higher than three years, three months.  Let us say it was seven years, six months.  In those circumstances, what was the sentencing judge to do?  He had nine years, six months as the total effective sentence.  For the offences in question, setting aside the reclaimed period, he would have imposed seven years imprisonment, but he has a reclaimed period of some seven years, six months to deal with.  If he subtracts seven years, six months from the seven years, you would have ended up with a sentence of nine years and, arguably, no period to be spent as the non‑parole period.  So when one changes the figures ‑ ‑ ‑

HAYNE J:   But does not the example you have given demonstrate the difficulties that occur when you overelaborate what is essentially a very simple proposition?  You sentence the offender for the offence for which he stands for sentence and you fix the non‑parole period for that offender as the minimum time that has to be served in custody to reflect the criminality of that which the offender has done.

MR SONNET:   Yes, and we accept that.  What we say when one looks at the facts of this case, the sentencing judge dealing with the criminal history of this particular offender and the offences in question that were before the trial judge could not have arrived at a non‑parole period of three years and nine months.

HAYNE J:   What do you say then about this as a vehicle for agitation of these issues, given the course that the prosecution has taken in respect of the sentencing of this?

MR SONNET:   At the outset, we conceded that we have not covered ourselves in glory.  At the time ‑ ‑ ‑

HAYNE J:   It is not just a question of mea culpa, but why would it be in the interests of justice that this Court take it up to deal with this man for a fourth time?

MR SONNET:   The unfairness, we say, is ameliorated in this particular case because the intention of the sentencing judge was made crystal clear before he correctly sentenced.  It was made perfectly clear in his reasons and in the original orders that he intended the prisoner to serve seven years in custody.  We say in those circumstances, there is no unfairness, notwithstanding the Crown and, as I say, we candidly concede the Crown led the trial judge into error. 

At the time that the sentence was handed down in Dickson, the decision handed down by the Court of Appeal in Bradley was only a few days old.  It was, in effect, the first time that Bradley had been applied by a sentencing judge in Victoria.  So we say for those reasons, the Crown has been expeditious in challenging – the Crown made an application before the trial judge in this particular case, challenged the approach before the Court of Appeal, and in the Court of Appeal upon that Crown challenge, we would not seek to impeach any of the sentencing orders apart from the fixing of the non‑parole period and the approach of the methodology to be adopted in fixing a non‑parole period in the circumstances that confronted both the trial judge in the Court of Appeal. 

For those matters, we say that special leave should be granted.  It obviously raises a very important principle and we say that the error that we

sought to identify in the papers should not be perpetuated.  If the Court pleases.

HAYNE J:   Yes, thank you, Mr Sonnet.  Mr Holdenson, would you seek to challenge anything that is said in paragraph 51 of the Court of Appeal’s reasons?

MR HOLDENSON:   I am just looking again, your Honour, to paragraph 51.  Keeping in mind that that paragraph is, notwithstanding the manner in which it has been expressed, is to be read together with that paragraph (a) in section 5(2AA) of the Sentencing Act, we do not cavil with what is written there.

HAYNE J:   Yes, we will not trouble you further, Mr Holdenson.  There is, I take it, Mr Sonnet, nothing you would want to say in response to that?

MR SONNET:   No, your Honour.

HAYNE J:   The respondent to this application was sentenced in a fashion that reflected the Director of Public Prosecutions’ submissions to the sentencing judge about what account could or should be taken of the cancellation of the respondent’s parole in respect of a separate sentence that the respondent was then serving.  The Court of Appeal concluded, correctly, that in these circumstances it would be “manifestly unfair to the respondent” for any decision of the Court of Appeal on the question of sentencing principle which the Director submitted arose to affect adversely the sentence which the judge imposed on the respondent at first instance.

This being so, it would not be in the interests of justice generally or in this particular case that there be a grant of special leave to appeal to this Court. 

We are not to be taken as casting doubt on the proposition stated by the Court of Appeal at paragraph 51 of its reasons that:

It is . . . wrong in principle to approach the fixing of the non‑parole period for the later offending as if there will be an ‘overall minimum term’, being the aggregate of the parole sentence and such non‑parole period as the sentencing court might fix.

As the Court of Appeal rightly said, “The non‑parole period is fixed by the sentencing court and identifies the minimum term of imprisonment which must be served” for the offence or offences for which the offender is to be sentenced.  Special leave is refused.

MR HOLDENSON:   As a consequence of the making of that order, an application is made for costs.  I note, if I can short circuit this, at page 299 of the application book in paragraph 8.9 the respondent concedes the question of costs should the application be refused.

HAYNE J:   With costs.  The Court will adjourn to reconstitute.

AT 10.23 AM THE MATTER WAS CONCLUDED