Donald v The Queen

[2014] HCATrans 56

[2014] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S16 of 2014

B e t w e e n -

LAWSON STUART DONALD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2014, AT 12.03 PM

Copyright in the High Court of Australia

MR M. THANGARAJ, SC:   Your Honours, I appear with my learned friend, MR I.S. McLACHLAN.  (Instructed by Watsons Solicitors and Barristers)

MR R.J. BROMWICH, SC:   May it please the Court, I appear with my learned friend, MR S.J. BUCHEN.  (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ:   Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honours, we need an extension.

FRENCH CJ:   Is that opposed?

MR BROMWICH:   No, your Honours.

MR THANGARAJ:   Your Honours, could I start with the “rolled up” charge issue?  The sentencing judge referred to the fact that there were multiple transactions on a number of occasions throughout the remarks on sentence.  Her Honour dealt with this appropriately and dealt with it as a matter of a single charge with continuous conduct, with continuous course of conduct. 

Could I start by informing your Honours as to how the Crown argued this point below?  In the Crown’s bundle it includes their written submissions below and the transcript, and if I could start with their submissions below at page 9.  At page 9, paragraph 39 is where the Crown, as then was – it was the appellant in that court, of course – dealt with this.  Halfway through paragraph 39 it was submitted that:

The respondent was afforded a significant degree of leniency –

and then relies on a quote from Richard.  A few lines below that, this is the trust of the submission -

This inherent leniency –

that is, of the “rolled up” charge –

was relevant to her Honour’s consideration of the need to impose a sentence of appropriate severity and the extent to which additional leniency should be afforded to the respondent for other matters, including mental illness and delay.

So, what the Crown was saying was ‑ ‑ ‑

FRENCH CJ:   Sorry, what page of the application book is that?

MR THANGARAJ:   I am sorry, your Honour, in a bundle that the Crown has ‑ ‑ ‑

FRENCH CJ:   I am sorry, I have them.

MR THANGARAJ:   Their written submissions below.

FRENCH CJ:   Yes.

KEANE J:   This is under tab 4, is it?

MR THANGARAJ:   It is, your Honour.

KEANE J:   What paragraph?

MR THANGARAJ:   Paragraph 39 on page 9.

FRENCH CJ:   All right.

MR THANGARAJ:   So if I could just go through that step by step.  “This inherent leniency” - they are talking about the “rolled up” charge:

was relevant to her Honour’s consideration of the need to impose a sentence of appropriate severity and the extent to which additional leniency should be afforded to the respondent for other matters, including mental illness and delay.

Now, we are talking about the same party.  It was the Crown that had agreed to accept a plea to a “rolled up” charge.  It is matter of negotiations between the parties and there are a number of reasons why a Crown may agree to that proposition.  Whether they made the offer or it was accepted is not the point, but the point is it is a “rolled up” charge. 

Now, that means the Crown is saying to the court the maximum penalties will adequately reflect the criminality, et cetera, et cetera.  But what they are saying here is that even though we have agreed to that as part of the charge‑bargaining process and we have accepted the plea in full satisfaction, the court, when sentencing, must account for that as a matter of inherent leniency.  The Crown goes further.  It says that leniency should in fact offset other factors of mitigation such as mental illness and delay.  So it is really the Crown making a deal with its fingers crossed behind its back.

FRENCH CJ:   Now, what grounds of the draft notice of appeal is this submission addressing?  I am looking at page 59 of the application book.

MR THANGARAJ:   The “rolled up” – I think it is 5, your Honour.

FRENCH CJ:   At what part of the judgment of the Court of Criminal Appeal do you say they ‑ ‑ ‑ 

MR THANGARAJ:   I am coming to that, your Honour.

FRENCH CJ:   Yes.

MR THANGARAJ:   Sorry, in the special leave – before I take your Honours to the judgment could I first just go to the transcript, which is also in the bundle provided by the Crown, this is the transcript below, so your Honours can see what it is that the Crown submitted orally at page 15 of the transcript.

FRENCH CJ:   Tab?

MR THANGARAJ:   Tab 5, your Honour.

FRENCH CJ:   Yes.

MR THANGARAJ:   Your Honours will see at the top of the page that there was a reference to the submission made by Mr Donald in response which was that:

the inherent leniency of a rolled‑up charge, and suggest that’s just a matter of prosecution discretion and has no other part to play.

So the Commonwealth Director says we take issue with that and relies on Glynatsis and Richard, as did the Court of Criminal Appeal, and I will come to that in a moment.  The critical submission was made at line 12:

That is the foundation for our submission that a rolled‑up charge involves a significant degree of leniency, and, in this case, we say a degree of leniency to a very high degree.  Yet we submit that there’s nothing in the remarks on sentence to indicate that this was recognised and given weight at all, let along due weight, as opposed to a recognition of the number of transactions.  It seems by her Honour to have been treated as charged only as a single and continuous course of conduct.

We say that that submission clearly is, we say with respect, incorrect, and the Court of Criminal Appeal accepted this at appeal book 44, paragraphs 84 and 85 are the important paragraphs.  Her Honour Justice Latham, with whom Justice Adamson agreed:

There are two factors in particular that demonstrate that the sentence failed to reflect the gravity of the offence and failed in particular to serve as an effective deterrent . . . One is the representative nature of the charge –

which is the “rolled up” charge, that is the way her Honour described it –

and the other is the inherent leniency in a suspended sentence.

Your Honours will see then that her Honour refers to precisely the same authorities that my learned friend took the Court of Criminal Appeal to, and then talks about the “considerable advantage,” et cetera, of a “rolled up” charge.  So the advantage, as submitted, was a matter of leniency was something that the – was entirely irrelevant to the question of something offsetting any other factor of mitigation, which is how it was submitted to the Court of Criminal Appeal in the passage I have just take your Honours to.

FRENCH CJ:   Sorry, the “rolled up” charge covered a whole range of conduct between September 2005 and March 2008.

MR THANGARAJ:   Yes, 30 transactions ‑ ‑ ‑

FRENCH CJ:   Yes.  So that any sentence imposed in respect of the “rolled up” charge would have to, within the framework of the maximum penalty available, reflect the criminality of that whole course of conduct, would it not?

MR THANGARAJ:   Yes, and that is the way it was submitted by Mr Donald below.  There was no issue with that.  The question was that the Crown wanted to go further and the Court accepted the proposition that I have taken your Honours to that there is inherent leniency in the nature of the charge and that is why they were saying that leniency is something that her Honour failed to take into account.  Her Honour did not fail to take it into account.  Her Honour looked at it appropriately. 

The problem was they then said that further, that inherent leniency would offset other factors of mitigation and then the Court, relying on Glynatsis and Richard, either - we say either Glynatsis and Richard were misapplied or all of the cases are wrong in principle.  But the importance of this is that it is for the judge to sentence on the charge before her Honour or his Honour.  It is not appropriate to look at what could have been charged and that it could have been dealt with in separate charges with therefore an accumulated higher maximum penalty.  It is like saying that if a serious charge is dropped and a plea to the backup charge is accepted that one should consider that there is a possibility of a more serious offence.  That is the sort of analogy we are talking about.

FRENCH CJ:   One can read the statement “One is the representative nature of the charge” as simply a statement that the charge covers a large range of conduct, albeit concentrated into one count.  It is just a statement that - why should one not read it simply as a statement about the degree of criminality that is covered by the charge on the facts of this case?

MR THANGARAJ:   There are two reasons, your Honour.  Firstly, her Honour does not there talk about the conduct.  Her Honour talks about the nature of the charge, which is exactly the submission that was made below by our learned friends.  Her Honour is adopting the submission, or accepting the submission that was put to the court, relying on the same authorities and talking about the nature of the charge rather than the nature of the conduct and that is why the inherent leniency submission was made below by the Crown and that is why it was accepted.

FRENCH CJ:   Yes.

MR THANGARAJ:   The difficulty with this judgment is that it will now stand as a precedent for sentencing of “rolled up” matters in any court, at first instance, on appeal, certainly in this State, but there is no reason why other courts may not look at this with some importance given that it is an appellate authority and it would be a significant misapplication of the way that “rolled up” charges ought to be sentenced.

FRENCH CJ:   On your submission, to understand that you have to read paragraph 84 together with the Crown submissions?

MR THANGARAJ:   Well, in this case it is clear that that is what happened, but ‑ ‑ ‑

FRENCH CJ:   I am just wondering - I cannot quite extract this precedential value out of 84 standing on its own.

MR THANGARAJ:   Well, the reason that it would be - that precedential value comes from the judgment alone, your Honours, is because it talks about the nature of the charge and those parts of Glynatsis and Richard which are read in a way that talks about the nature of the charge, that is the problem.

FRENCH CJ:   Right.

MR THANGARAJ:   At that same page the Court of Criminal Appeal said that that was one of the two particular factors which caused the sentence to be changed.  If it was about the conduct, her Honour took into account on a number occasions that there were multiple transactions, so it could not have been that because her Honour specifically said that.  The other reason it was given was the suggested inherent leniency of a suspended sentence.  Now, it was put below on behalf of Mr Donald that the Court of Criminal Appeal decision in Zamagias was relevant in that it made it clear that a suspended sentence did have value of deterrence.  That judgment, although the court was taken to it, did not find its way in the judgment. 

A matter of a conviction alone and the ramifications of a conviction alone, loss of employment, financial ramifications, humiliation, et cetera, financial ramifications, they of themselves operate as deterrents.  The underlying finding in this judgment seems to be that unless someone gets a sentence of fulltime imprisonment there is no general deterrence.

FRENCH CJ:   Well, hang on.  We have sort of moved into another area now.  What you were previously addressing us about in relation to 83 and 84, that is what you have to say, is it, in relation to ground 5 in the draft notice of appeal at page 59?

MR THANGARAJ:   It is, your Honours.  What I am leading onto now is in relation to the other half of that paragraph, of 84, because the Crown contends that even if we were successful the sentence would not be reduced, so I need to address this other point in relation to a suspended sentence, which in any case is ground 6.  Over the page at paragraph 86 her Honour says – sorry, at paragraph 86, application book 45:

Notwithstanding judicial statements to the effect that a suspended sentence is a sentence of imprisonment, the community (including those in “white collar” occupations) might be justifiably forgiven for thinking that an offender who is serving a bond in the community has escaped meaningful punishment.

It almost reads as a balancing between judicial authority and a community perception, which begs the question, of course, of one, why and two, how does one assess the community perception in that circumstance.  In our respectful submission, if your Honours accept what I have just said then it would be inevitable that the sentence would have to be reduced.

FRENCH CJ:   That has to be put in the context in which the statement is made.  It is not made, is it, as a statement of – I mean, if you read it in isolation I suppose you could say it was a statement of general principle, which might be questionable, or general approach or perception or something, but it is in the context of a very substantial course of criminal conduct, is it not?

MR THANGARAJ:   It is, but when we are looking at what her Honour says about it, if we go to the top of that paragraph:

It has also been repeatedly observed that the real bite of general deterrence takes hold only when a custodial sentence is imposed –

In our respectful submission, it is certainly the case that there is more general deterrence when there is fulltime custody as opposed to something else, but my learned friend made a submission below that in this case there was zero general deterrence unless there was a fulltime custodial sentence, which clearly, with respect, cannot be correct, and that is the same mistake that her Honour made, followed by that passage in 86 that I have just read out. 

The balance of the application relates to mental illness and delay.  This was a case where the Crown did not dispute the length of the sentence imposed but objected to and appealed against the nature of the sentence, that is, that it was entirely suspended.  If I could start with application book 16, line 40 – this is the remarks on sentence from the first instance judge:

In my view the combination of circumstances in Mr Donald’s case warrants some leniency -

which, of course, is open to her Honour -

I have decided to reflect the objective seriousness of the offence by a custodial sentence but suspend that sentence because of the significance of Mr Donald’s bipolar disorder to his offence, and the significant delay –

If I could then take your Honours to application book 76.  This was, of course, in circumstances where the Crown accepted that it was open to her Honour to find, and the Crown accepted, that the mental illness substantially contributed to the offending conduct.  The Crown accepts that as a proposition, but that is found in the respondent’s summary of argument at application book 74, paragraph 12 of their submissions. 

So that is the background.  So now, we are talking about a Crown appeal succeeding by asking a Court of Criminal Appeal on a “reasonable minds might differ” basis almost that the degree of something ought to have been found differently and that is part of the concerns expressed in the grounds of appeal.  In paragraph 18 of the Crown summary of argument, our learned friends say that:

The first ground of appeal was upheld on three bases, namely:

(a)a finding that the applicant’s mental illness only moderately reduced his moral culpability –

So, again, a matter of degree.

(b)a finding that general deterrence had a significant role to play –

Well, that depends on the mental illness stage.  I am sorry I have to descend into some of the facts, take up some time with the facts, but given the grounds that are argued and the fact it was a Crown appeal it is probably necessary.  The third one was that:

the appellant’s mental illness would make his time in custody more onerous –

The Court of Criminal Appeal found that there was no evidence to justify that.  One might have thought that a person who is being treated for bipolar disorder, it might be axiomatic that custody might be ‑ ‑ ‑

FRENCH CJ:   Now you seem to be challenging the correctness of findings by the Court of Criminal Appeal.

MR THANGARAJ:   No, your Honour, could I just say this in relation to that point?  That was not one of the two reasons given by the sentencing judge as to why a suspended sentence was imposed, so that is why it was not a ground of appeal by the Crown, but it was one of the bases that the Court of Criminal Appeal relied upon on the Crown appeal.

FRENCH CJ:   Yes, I understand that.  See, as I read your grounds, 1 to 4, they are all a kind of procedural fairness argument.   You are saying that the Court of Criminal Appeal decided the appeal on factual findings which have not been made at first instance, were not challenged before it and so forth.  But that does not seem to be the basis on which you are putting argument here.

MR THANGARAJ:   Well, it is a little difficult, your Honour, when I am taking over the brief for today’s purposes.  I accept there is a little bit of variation, but ‑ ‑ ‑

FRENCH CJ:   Well, can you try to succinctly state what is the special leave point that you are addressing now?

MR THANGARAJ:   Well, can I take your Honours to – the special leave point has not changed, your Honour, I am just perhaps doing it in a different way.

FRENCH CJ:   How would you formulate it, please?

MR THANGARAJ:   Could I take your Honours to application book 61?  That is where ‑ ‑ ‑

FRENCH CJ:   We have dealt with 4 and 5 and what we are left with is 1, 2 and 3.

MR THANGARAJ:   Yes, your Honour.  So if I could just spend a couple of minutes on the facts and then get to what that issue is.  The issue is, to put it succinctly to start off with, that a sentencing judge made findings of fact after disputes, so there was a dispute as to the extent of moral culpability below at first instance.  Her Honour resolved that in our favour.  The Court of Criminal Appeal changed or found matters almost to a different degree when without finding, and this is what we put in the summary – this is what was put in the summary of argument – without finding that it was not open to the judge at first instance to make those findings, and therefore that is why I said it almost came down to a “reasonable minds might differ”.

So, the special leave question in relation to that is ought Crown appeals be dealt with on that basis when factual findings have been resolved in a particular way and then the Court of Criminal Appeal makes other findings of fact?

FRENCH CJ:   Well, you are using factual findings in a rather broad sense, are you not, including findings as to degrees of moral culpability for the purpose of sentencing?

MR THANGARAJ:   Well, I am relying on the facts of – the fact that her Honour found it in a particular way at first instance after assessing the respective medical evidence and then, on appeal, the Court of Criminal Appeal came to the different conclusion when it seemed that it was not – and this is in the summary of argument – it was not being challenged, certainly not in an explicit ground of appeal in the way that Crown appeals might be dealt with, nor in a way where it was suggested, one, that it was not open to the sentencing judge to find those facts as found after dispute ‑ ‑ ‑

KEANE J:   But the sentencing judge found that the bipolar disorder was a substantial contributor to the offending.  The Court of Criminal Appeal came to a different evaluation of the significance of that.  They did not purport to overturn the factual finding that your client suffered from bipolar disorder.  They just took a different view of the relevance of that to his criminality having regard to the lengthy period of the offending and the nature of that offending.

MR THANGARAJ:   I think it went a little bit further than that, with respect, your Honour, because, for example, her Honour found that he was substantially affected throughout the period of the offending.  Her Honour did not find that there were periods where some of the offending took place that he was thinking clearly, if I could put it that way.  The Court of Criminal Appeal found that there certainly were times when he was affected by the bipolar disorder at the time of the offending, but did not accept that it occurred for every transaction, and that is why there was more of an importance of general deterrence.

KEANE J:   Or that it was complete explanation for what occurred, and understandably.  I mean, he is committing these quite sophisticated frauds ‑ ‑ ‑

MR THANGARAJ:   But we are not talking about capacity to offend, your Honour, we are talking about an impairment of judgment.

KEANE J:   Also the implementation of strategies to achieve it.

MR THANGARAJ:   But that is why it was critical that what her Honour found – perhaps I could take your Honours to the – well, I will come to that – but what her Honour found was that there was an impairment of judgment, so, yes, he was engaging in conduct of concealment and of covert nature.

KEANE J:   And dishonesty.

MR THANGARAJ:   Yes, that is right.  But that is the whole point of – that is why her Honour found what she did, that on the basis of the experts who were before her, at least in the matter – by way of report for the Crown and the accused offender, her Honour resolved that there had been an impairment of judgment, so, yes, he engaged in all this conduct that was inappropriate, but his ‑ ‑ ‑

KEANE J:   No, not inappropriate, fraudulent, dishonest.

MR THANGARAJ:   Well, fraudulent, dishonest, I accept all the characterisations, but the question is his decision to engage in that dishonest or fraudulent conduct was because his judgment was impaired and so he more readily did something and ‑ ‑ ‑

KEANE J:   People who suffer from bipolar disorder do not, as a matter of their illness, engage in dishonest frauds.

MR THANGARAJ:   Well, it does not have to be the case that everyone reacts the same way to the same illness, your Honour, but what ‑ ‑ ‑

KEANE J:   But it is not a feature of bipolar disorder that people who suffer from it commit frauds over lengthy periods.

MR THANGARAJ:   It may not be an atypical feature, it may not be an overwhelming feature, but what her Honour found on the basis of the expert evidence before her Honour ‑ ‑ ‑

KEANE J:   Her Honour regarded it as very significant to the point where your client received a suspended sentence.  The evaluation which the Court of Criminal Appeal made was that it was not so significant.  That seems to me to have been a view that was entirely open to the Court of Criminal Appeal.

MR THANGARAJ:   The question is whether her Honour’s view at first instance was open to her Honour.

KEANE J:   Well, the view that it was not open to her Honour is a view that was distinctly open to the Court of Criminal Appeal.

MR THANGARAJ:   That is part of the complaint, that it was not something that was challenged.  But could I just take your Honours to what her Honour found.  It is extracted ‑ ‑ ‑

FRENCH CJ:   This will have to finish it off, Mr Thangaraj.

MR THANGARAJ:   I will, your Honour.  At application book 41 at the bottom of the previous page, “Dr Westmore’s” - who was for the Crown:

statements about the effects of bipolar disorder support Dr Canaris’ specific opinions about Mr Donald’s illness and offending conduct such that I have no difficulty being persuaded on the balance of probabilities that Mr Donald’s bipolar disorder and the impairing of his judgment and thinking processes by his illness and his misuse of drugs and alcohol contributed substantially to his offending behaviour.

So, it may be something that is atypical for bipolar, but it is a question of what happened in this case, your Honour, and there was no challenge to any suggestion that bipolar mood disorder could never – or in this case did not impair judgment.  The Crown’s position was it substantially contributed to the offending, but only some of it.  The thrust of our – perhaps the best special leave point is the “rolled up” charge in relation to the way that the Crown made its submissions and it being adopted by the ‑ ‑ ‑

FRENCH CJ:   Thank you, Mr Thangaraj.  We will not need to trouble you, Mr Bromwich.

MR BROMWICH:   May it please the Court.

FRENCH CJ:   The applicant for special leave contends that the Court of Criminal Appeal’s decision was based upon findings which differed from those made by the sentencing judge and which had not been challenged in the Court of Criminal Appeal.  The Court was therefore said to have failed to afford the applicant procedural fairness and also said to have taken into account irrelevant considerations. 

There is debate between the parties in the submissions about the scope of the appeal as argued in the Court of Criminal Appeal.  It is difficult to accept that the issues were as narrowly confined by the grounds of appeal as the applicant contends in his written submissions.  As to the other proposed grounds of appeal emphasised by Mr Thangaraj, in our opinion, despite his best efforts to draw out a question of importance, no question of principle warranting the grant of special leave is thrown up.  Nor is the case one which warrants the grant of special leave in the interests of the administration of justice.

Special leave will be refused.

AT 12.30 PM THE MATTER WAS CONCLUDED