Dunne v The Queen

[2005] HCATrans 49

[2005] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M274 of 2003

B e t w e e n -

JAMES PAUL DUNNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 12.41 PM

Copyright in the High Court of Australia

MR L.C. CARTER:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by T.J. Mulvany & Co)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS R.J. ORR, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GUMMOW J:   Yes, Mr Carter.

MR CARTER:   Your Honours, in our submission, this application raises questions of sentencing principle sufficient to warrant a grant of special leave, in particular because the Court of Appeal in its ratio, in our submission, relied erroneously on the reasoning of the recent judgment of this Court and in particular the joint reasons in Weininger v The Queen.  The background to the matter ‑ ‑ ‑

GUMMOW J:   We are familiar with the background to the matter.

HAYNE J:   Where do you point to the error in the Court of Appeal?  What passage do you say best identifies it?

MR CARTER:   It is one passage, your Honour, and it is contained at page 227 of the application book, paragraph 17 in the judgment.  In rejecting the contention that the sentencing judge had wrongly inflated the level of the applicant’s criminality by reference to uncharged allegations, Justice Batt holds at line 7:

in the determination of the appropriate and just effective sentence for the 31 counts, the fact of the commission of numerous other offences during the same period was relevant and admissible:  it enabled a more realistic assessment to be made of the nature, degree and true significance of the criminality involved in the 31 offences –

I will not read the rest for the sake of time but it is down to the end of that paragraph and the reference to three paragraphs in the joint reasons in Weininger.

HAYNE J:   Though it is hard to speak of 31 counts as if they were isolated events.  Was it relevant to sentencing for the sentencer to know whether the offending consisted of a series of isolated acts against the complainants?

MR CARTER:   Your Honour, can I answer that in two parts.  In the first part it is important to have regard to a document contained at 75 of the application book which was a chronology provided by the Crown Prosecutor to the sentencing judge when the matter was opened.  That provided clear‑cut instructions to the sentencing judge as to the particular paragraphs within a 68‑page statement by the victim that related to each count.

HAYNE J:   Yes.  A rather extraordinary elaboration, it might be said, but there we are; that is the basis on which it went forward.

MR CARTER:   That is the basis on which it went forward and very importantly, your Honour, if I can immediately bring up the contrast with Weininger, it was not a situation where an agreed statement of facts went before the court in effect admitting to earlier criminality.  Whilst there were clearly allegations of other criminality here within the charge period, the judge was told in clear terms, first, that these counts were not to be treated as representative in nature and, second, that that document which is not referred to – it is referred to in the judgment of the Court of Appeal but the fact that it instructed the judge as to which particular paragraphs and also in respect of eight counts, namely, 9,11, 12, 19, 23 and 24, there were further specific instructions as to ignoring certain allegations of the most serious kind. 

That probably has not answered your Honour Justice Hayne’s question squarely enough but the situation here is that the way the matter went before the judge is that they were 31 specific offences and, secondly, in the plea on behalf of the now applicant, there was no attempt made by his counsel to say the 31 is it. 

Two points about that, if I can just pause there.  It is not like Mr Weininger in the same agreed statement of facts asserting to his woman friend and a psychologist, “It’s a one‑off”.  In my respectful submissions, the point made by Mr Boyce before the sentencing judge was correct, namely, that the relevance of the other matters is to preclude me asserting in mitigation that there is nothing else.

HAYNE J:   Are we not then dancing on a pin’s head?  A judge is entitled to know that the prisoner says, “No, that’s not it”.  Where are getting to?

MR CARTER:   The first thing is this statement that “I don’t assert that the 31 is it” cannot be transformed into an admission that “We agree with that entire statement holus‑bolus”.  Secondly, your Honour, there is in jurisdictions, including Victoria and at least New South Wales and South Australia, also in some senses under the Commonwealth Crimes Act, a practice of the laying of representative counts.  These were not representative counts.

In our submission, the ratio that I have taken the Court to involves reasoning that mirrors the leading case in Victoria dealing with the consequences that flow from representative counts.  I have provided to the Court under tab 3, R v SBL.  If I can take the Court briefly to the judgment of his Honour Justice Batt at page 725, paragraph 69, about midway through the paragraph:

The better view – and a view not disputed by counsel for the respondent . . . appears to be that the fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance –

I will not read through the authorities, including the reference to De Simoni.  In the following paragraph, paragraph 70:

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context.  The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context.

Now, the special leave question that arises here is that, in our respectful submission, that reasoning is identical to the ratio that I took the Court to in the judgment of his Honour Justice Batt at page 227.  It is identical because essentially there is a dual aspect.  The uncharged matters may go to character, as they did, in our submission in Weininger, but they may also go to, to put it in plain English terms, the seriousness of the individual counts.

The consequence of this, unlike Weininger, is that it does mean, in our submission, that the principles in cases like De Simoni are engaged and the reason that they are engaged is that if we are correct and there is no meaningful distinction to be drawn between the two passages of reasoning we highlight, the applicant in this case has been sentenced on the basis that the uncharged matters amounted to an aggravated circumstance.

Of course, Weininger was not the opportunity for the Court to consider representative counts, it did not arise, but the underpinning rationale is that when other charges are to be taken account of, it is to be done with the express, clear, unequivocal public consent of the prisoner.  This was not a case of representative counts.  If our reading of the ratio is correct, questions of live and practical significance arise.  From the Crown’s point of view, is it necessary, given Weininger and the Court of Appeal’s treatment of it, to endeavour to settle cases of this nature on the basis of representative counts or, on the strength of this reasoning, can they be confident that sentencing judges will have regard in the determination of sentence to all criminality revealed in depositional material?  From the perspective of the accused is it necessary that he or she be advised, even if the presentment is confined to discrete counts, that it is permissible for the sentencing judge to rely in aggravation on the entirety of the depositions? 

The third aspect is that, in our submission, the Court of Appeal’s reliance on Weininger to reach these conclusions was in error.  If an intermediate court has misconstrued the effect of the joint reasons, that in itself, in our submission, is sufficient basis for the grant of special leave.  Weininger admitted in detailed conversations with an AFP informant his role to an ongoing syndicate.  He fell to be sentenced as is relevant for the federal offence of importation.  Not surprisingly, the sentencing judge rejected his claim that the offence was one‑off in light of the other material.  The impugned finding of the sentencing judge was that, given the strong evidence of participation in cocaine importation before the charged count, he could not be treated as a first offender with the “attendant leniency that that status usually attracts”.

In the joint reasons, as we read the ratio, it was simply that the sentencing judge, when her remarks were seen in context, was simply concluding that the absence of prior convictions did not, as might usually be the case, lead to a finding of unblemished good character.  In the joint reasons the matter that is emphasised is that at the end of the day this was neither a finding for or against, so that the questions of standard ventilated in Storey, followed by this Court in Olbrich, did not arise.

Further, in the language of the joint judgment, the principles in De Simoni were not engaged.  In this case those base principles are engaged and have been breached.  That is because the chronology of counts provided to the sentencing judge contained not only clear‑cut instructions as to the relevant parts of the statement for the purposes of each count but contained instructions to ignore references to other matters that in part were statute‑barred.

This important aspect of the chronology is not referred to in the Court of Appeal’s judgment.  Further, in this case there was no attempt made to claim that the 31 counts were one‑off.  The joint reasons in Weininger cannot justify the conclusion reached by Justice Batt.  The reasoning in Weininger is confined to the way in which evidence of uncharged criminal activity may impinge on an assessment of prior good character.

In this case the sentencing judge did not seek to dilute the finding as to prior good character by reference to these matters at all.  The error that arises is the use of the matters in determining the seriousness of the individual counts.  Now, if there has been, by reference to the reasoning in Weininger a collapsing of the distinction between representative and

non‑representative counts in a practical context like this, then, in our submission, that is a matter of sufficient importance to warrant a grant of special leave so that there can be certainty for all players in the criminal justice system as to exactly what they are entering into.

The other aspect of the Court of Appeal’s judgment is the exploration of whether in fact it may have been open to the sentencing judge to reach findings beyond reasonable doubt as to the other matters.  What is said about that, as was put by Mr Boyce before the sentencing judge, is that the issue of the other counts did not arise.  They were irrelevant.  Sentencing judges routinely ignore allegations of other criminality contained within depositional material.  There was nothing in the conduct of this plea or the material placed before the sentencing judge that enabled the requisite unequivocal admission of other offences to be utilised in the sentencing of the applicant. 

So, in our submission, in conclusion, special leave ought be granted, first, because basic sentencing principle at common law has been violated, second, because over and above the interest of the applicant in this case there is a need for certainty in the way in which intermediate courts comprehend and apply what this Court has said most recently in Weininger and, thirdly, so that practically it can be understood whether there is in effect any longer a distinction between representative and non‑representative counts in those jurisdictions where such difference does exist.  If the Court pleases.

GUMMOW J:   Yes, we do not need to call on you, Mr McArdle. 

There was no error of principle in the decision of the Court of Appeal.  Accordingly, special leave is refused. 

The Court will adjourn until 2.00 pm. 

AT 12.56 PM THE MATTER WAS CONCLUDED