Dumitrache v The Queen

[1995] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M54 of 1992

B e t w e e n -

VIOREL SORIN DUMITRACHE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 10.34 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with my learned friend, MR O.P. HOLDENSON, for the applicant.  (instructed by Pryles & Defteros)

MR G.R. FLATMAN:   May it please the Court, I appear with my learned friend, MS S.F. THOMAS, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MR GRACE:   If the Court pleases, in this case the existence of State boundaries has resulted in unjustifiable discrimination against the applicant.  The applicant has not been treated equally in the application of a law ‑ ‑ ‑

DAWSON J:   We are only smiling because it sounds like a constitutional point, Mr Grace.

MR GRACE:   I will come to that issue, perhaps.  The applicant has not been treated equally in the application of a law which purports to treat sentenced prisoners equally.  Your Honours may have been referring to the issues raised in Leeth’s Case, Leeth v The Commonwealth, a decision of this Court some years ago.  It is a different issue than that that pertained to Leeth and in my submission it does not raise the constitutional issues that were raised in Leeth’s Case.  But nevertheless, issues of a quality which were raised in Leeth’s Case do pervade the judgment of the Court of Criminal Appeal in this case.

DAWSON J:   Where does the equality arise?  Section 17 of the Penalties and Sentences Act required the court to impose a minimum sentence
 in the circumstances of this case unless it was relieved of that obligation and that was only if it considered that the nature of the offence and the antecedents of the offender rendered the fixing of a maximum term inappropriate.  And the antecedents of this particular offender included the circumstances which had arisen in New South Wales.

MR GRACE:   That was certainly part of the antecedents.  But could I remind ‑ ‑ ‑

DAWSON J:   And they considered that those antecedents made it appropriate not to fix a minimum term.

MR GRACE:   The court did not say that, your Honour.

DAWSON J:   It may not have spelt it out in those words, but it was clear enough that was what they meant.

MR GRACE:   In our respectful submission it is not clear at all and it appears that the court, in following the previous decision of the Court of Criminal Appeal in Pollitt has wrongly interpreted and applied Pollitt.  In this case it was clear in the plea in mitigation before the learned sentencing judge that counsel for the applicant was urging the sentencing judge to impose a minimum term somewhat higher in terms of disparity between the head sentence than would otherwise have applied, due to what was said to be reasonably good prospects of rehabilitation.  I refer your Honours to ‑ ‑ ‑

DAWSON J:   Let me get it quite clear.  He was liable to be returned to New South Wales and to serve the balance of the term of imprisonment to which he had been sentenced there, is that right?

MR GRACE:   Yes.

DAWSON J:   And he would have been so liable if he had been released on parole in Victoria, would he not?

MR GRACE:   Yes, your Honour.

DAWSON J:   So there is little point in fixing a minimum term to allow him to go out on parole merely to have him returned to New South Wales.

MR GRACE:   It depends upon whether ‑ ‑ ‑

DAWSON J:   I am asking you, I am not saying.

MR GRACE:   With respect, the answer is no.  The reason the answer is no is because the court did not, and could not have had, cause to refer to the judgment of this Court in Shrestha which ‑ ‑ ‑

DAWSON J:   What has that got to do with it?

MR GRACE:   It deals with an analogous situation where a federal prisoner is liable to deportation upon the completion of service of his sentence.  There, this Court, by majority, found that the fact of imminent deportation was not a bar to the fixing of a minimum term.

DAWSON J:   But in this case it would appear that a lesser sentence was imposed, in other words, what was the minimum term became the term, having regard to the relationship between this and the trial judge’s sentence.

MR GRACE:   In effect there was no lesser effective sentence imposed.

DAWSON J:   That is right.

MR GRACE:   It was absolutely equivalent if remissions were granted and the applicant was otherwise eligible for parole.

DAWSON J:   In other words, what the court was doing - correct me if I am wrong - was saying, “Well look, we might in this case have imposed a sentence of ten and a half years with a minimum term of seven and a half years, but there is no point in doing that in this case so we will just give a straight sentence of seven and a half years without a minimum term because we know that upon his release the prisoner will be taken back to New South Wales to serve the balance of his term there.  There is no point in considering rehabilitation or any of those matters in those circumstances”.

MR GRACE:   With respect, that approach is an erroneous approach.

DAWSON J:   Why?

MR GRACE:   Because it does not take into account the fact that parole is just not a procedure which enables a prisoner to be released ‑ ‑ ‑

DAWSON J:   There is one thing that is clear that if you are in prison during the time that would otherwise be parole, you are not getting much benefit from the parole, are you?

MR GRACE:   No, that is certainly the case.  But a non-parole period being fixed operates as an incentive to rehabilitation for a prisoner.

DAWSON J:   Not much incentive if you know that the moment you come out you are going to be taken to New South Wales to go into prison again.

MR GRACE:   That is not necessarily the case, your Honour.  It relies upon a future exercise of executive policy which may or may not occur.  Of course, there is an expectation that it will occur, as there was an expectation that it would occur in Shrestha, but that did not prevent or stop the Court from endorsing an approach that the fixing of a minimum term was appropriate, because why should a prisoner be treated unequally, as compared to a prisoner who did not have the ‑ ‑ ‑

DAWSON J:   That is an assumption on your part.  In fact the term to which he was sentenced may have been less than the head term to which he would have been sentenced - and it appears to be so - had the court not taken into account his antecedents in the form of the situation in New South Wales.

MR GRACE:   Yes.  But the applicant was denied the benefit of having a minimum term fixed and therefore, eligibility for parole.

DAWSON J:   He was denied the benefit of parole, but he was going to be denied that anyway.

MR GRACE:   Not necessarily.  It may have been that he would have been allowed to serve his parole period in Victoria and then, at the conclusion of that, which is the conclusion of the sentence, he would then be extradited.  There is no guarantee that the future exercise of executive policy would necessarily occur, if it was to occur, at the time that the non-parole period, less remissions, would have been served.

TOOHEY J:   Do you say, Mr Grace, that it was not open to the court to consider the situation in relation to the New South Wales offences under the description of antecedents?

MR GRACE:   The antecedents have to be relevant to the crime that the prisoner is being sentenced for.  That is clear from the decision of Binder.

DAWSON J:   It covers the situation that he found himself in in New South Wales, does it not?

MR GRACE:   It certainly would cover it.  I do not take any ‑ ‑ ‑

DAWSON J:   Yes.  Antecedents is a word the exact meaning of which we do not know, but we know that it has been said to be a word as wide as can be conceived.

MR GRACE:   Yes.  Perhaps if I could refer your Honours on that particular point to the Victorian decision of Binder which ‑ ‑ ‑

DAWSON J:   And that, in turn, refers to Cobiac v Liddy in this Court, which in turn refers to Vallett’s Case in England where what I have just said  was said by Lord Goddard.

MR GRACE:   Yes.

DAWSON J:   I do not think we need to go to these.  We seem to be in agreement.

MR GRACE:   Yes, but the point that is sought to be made is highlighted by the fact that on the plea in mitigation there was a very strong plea for a minimum term to be fixed.  Counsel for the Director was given an opportunity to make submissions in relation to that particular submission and he did so.  At page 44 of the application book at about point 9 the sentencing judge asks counsel for the Director:

Did you want to say anything, Mr. Cooper?

MR. COOPER:  No, Your Honour, I don’t.

Now, that exchange followed immediately upon a submission made by counsel at the conclusion of the plea in mitigation where he said:

in my submission, the best way to achieve that is to fix a comparatively low minimum term.

DAWSON J:   And that is what they did, is it not?

MR GRACE:   Yes, that is what his Honour did.  His Honour accepted, in his reasons for sentence, that there were positive indications of potential reclamation.

DAWSON J:   And that minimum term was the term to which he was actually sentenced eventually, was it not?

MR GRACE:   Yes, it was.

DAWSON J:   Yes.  It was just a matter of saying, “Parole is really not relevant in these circumstances”.  In the Full Court, I mean.

MR GRACE:   That is the point of this application.  The applicant says that parole is relevant.  It is a matter that should have been considered by the Court of Criminal Appeal and a non-parole period should have been fixed and it was not in this case, through an erroneous application of sentencing principle.

In the Court of Criminal Appeal the imposition of a minimum terms was not even the subject of any discussion or argument.  There were no submissions made by either counsel for the applicant or counsel for the Director in the Court of Criminal Appeal.  Moreover, there were no discussions in the Court of Criminal Appeal concerning what possible effect the Interstate Transfer of Prisoners Act might have had if the prisoner was transferred during the time he was serving the Victorian sentence to New South Wales.  The only thing that occurred in the Court of Criminal Appeal was a concession by the Crown that the learned sentencing judge was in error in not taking into account the fact of service of a New South Wales sentence which was likely at the conclusion of the Victorian sentence.

At pages 59 and 60 of the application book the court there deals with the case of Pollitt and at page 59, about point 5, their Honours say this:

The relevant statement of principle to be extracted from these decisions is that a sentencing court should take into account an unexpired term of an earlier sentence imposed on the offender if the court is able to find “immediate liability” in him to undergo imprisonment arising from that earlier sentence and his subsequent offence or offences.

At page 60, again at point 5:

Having weighed all the circumstances, I consider that a course similar in part to that adopted by this court in Pollitt should be followed. 

And effective term of seven and a half years was fixed with no minimum term.

TOOHEY J:   But you do not have any objection to that as far as it goes, do you?

MR GRACE:   As far as it goes, but when you look at Pollitt, Pollitt is not authority for the proposition that no minimum term be fixed ‑ ‑ ‑

TOOHEY J:   No, that is why I said as far as it goes.  But then what else was the Court of Criminal Appeal being asked to consider?

MR GRACE:   The Court of Criminal Appeal was being asked to take into account the fact of immediate liability for service of the New South Wales sentence upon the conclusion of service of the Victorian sentence.

TOOHEY J:   And it did so.

MR GRACE:   It did so.  But it did not, at the same time, apply the provisions of section 17(1) of the Penalties and Sentences Act which it was required to do, unless it was of the view that the nature of the offence and the antecedents of the offender militated against the imposition ‑ ‑ ‑

DAWSON J:   It is plain, is it not, that they did consider the antecedents of the offender was such as to render a minimum term inappropriate.

MR GRACE:   With respect, it is not plain, but if that was the reasoning of the Court of Criminal Appeal, it is submitted that it was erroneous reasoning because the fact of some executive action which may impede upon the ability to serve a period of parole in Victoria occurring is not a basis for relying upon the caveat contained in section 17(2) to fortify the court in failing to fix a minimum term.

DAWSON J:   Mr Grace, you need an extension of time here, do you not?

MR GRACE:   I am not sure that that stage has been reached.

DAWSON J:   Not you personally; it has not been reached yet.  No, the applicant needs an extension of time.

MR GRACE:   As I understand, no, your Honour.  There was some misunderstanding on the part of the instructor that such an extension was required, but because of the time that the original application for special leave was filed it was within the 21 day period that is allowed by the Rules.

DAWSON J:   That is not contested, Mr Flatman.

MR FLATMAN:   No, your Honour.

MR GRACE:   Your Honours, if I could just turn to Pollitt 20 A Crim R 102 very briefly. At page 105 his Honour Mr Justice Crockett, who gave the leading judgment of the court, at approximately point 9 on the page pronounces the order of the court and says, at the end of that paragraph:

Having regard to the antecedents of the applicant and the circumstances of the offence, no minimum term is fixed.

The principle that was extracted from Pollitt was the principle as identified by the Court of Criminal Appeal in the applicant’s case, but what the Court of Criminal Appeal did was it imported into that statement of principle that in circumstances where the principle would be applied, no minimum term would be fixed.

TOOHEY J:   Why do you say that?  There is nothing expressly said by the Court of Criminal Appeal to that effect, is there?

MR GRACE:   Then the rejoinder to that, your Honour, with respect, is that if that is not right, then unless the nature of the offences, coupled with the antecedents of the applicant, prevented or allowed the court not to fix a minimum term, or to come to that conclusion, a minimum term should be fixed.  I pose this rhetorical question, “What if this applicant had no prior convictions?”  Could it then be said that by reason of having to serve some sentence in another jurisdiction he would then be liable to have no fixed ‑ ‑ ‑

DAWSON J:   Yes, because he did have prior convictions in another jurisdiction which coloured the situation.

MR GRACE:   Perhaps I phrased that badly.  If the applicant had prior convictions not of the nature of this applicant, perhaps he had a sentence for some completely different form of criminal conduct in New South Wales for which he was liable to serve imprisonment, could it then be said that the antecedents by themselves, just by virtue of the fact of service of a New South Wales sentence, would then allow the court to be justified in reaching a conclusion that no minimum term be fixed?

TOOHEY J:   Maybe, maybe not.  But there are other considerations here, including the extent of prior convictions.  But this is the problem that the Court is often faced with.  If something is not expressly said in a court below, are we to assume that the court gave no consideration to that aspect or if it is very plain, as in this case, where you had this extensive prior convictions plus the adjustment of the sentence, why should we not assume that the court, although it did not expressly say so, declined to fix a minimum term?

MR GRACE:   If that was the case, your Honour, then there has been a denial or procedural fairness in the court below in foreshadowing to the applicant and to the respondent that that was in the court’s mind to do.  There was no opportunity given to the applicant in the court below to make submissions on the issue and if your Honours were so minded, the applicant would be content if your Honours were prepared to remit the matter to the court below to allow full submissions to be made on that particular issue.

TOOHEY J:   Is that on the basis that the Court of Criminal Appeal was not asked to fix a minimum term, is this the line of argument, the court nevertheless proceeded to consider its obligation, decided not to impose a minimum term but did not give the parties an opportunity to argue that it should not do so.

MR GRACE:   I cannot say, because I was not there, your Honour ‑ ‑ ‑

TOOHEY J:   Is that the way the argument was run?

MR GRACE:   Yes.  I think there was an assumption on the part of all parties that a minimum term would be fixed.

DAWSON J:   In the light of Pollitt, that was not a justifiable assumption, was it?

MR GRACE:   It depends how you interpret Pollitt.  If you interpret Pollitt as meaning, in all cases of this nature, no minimum term is to be fixed, then what your Honour says is correct.  But, in our submission, you cannot interpret Pollitt on that basis.  You must interpret Pollitt as being merely a statement of principle that you must take into account the immediate liability to serve an interstate sentence.

In this case, the applicant and the respondent were given no opportunity to make submissions on the issue and it is for that reason that we are in this Court.  If the judgment had not been perfected, application would have been made to reopen the matter before the Court of Criminal Appeal.  But because it has long been perfected, we are unable to do that.  So it is that we are in this Court applying for special leave and it is conceded that if your Honours were minded to do so, we would welcome and certainly accept a remission of the matter to the Court of Criminal Appeal for further argument on this point.  If the Court pleases.

DAWSON J:   Thank you, Mr Grace.  We need not trouble you, Mr Flatman.

Notwithstanding the absence of any express reference by the Court of Criminal Appeal to the relevant provisions of section 17(1) of the Penalties and Sentences Act we are not persuaded that there was any actual error in sentencing principle in the course adopted by the Court of Criminal Appeal.  Accordingly, special leave to appeal is refused.

MR GRACE:   If the Court pleases.

AT 10.58 AM THE MATTER WAS CONCLUDED