Easton v The Queen

[1989] HCATrans 174

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A29 of 1989

B e t w e e n -

ANDREW JOHN EASTON

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J
DAWSON J

Easton

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1989, AT 10.15 AM

Copyright in the High Court of Australia

AlT/1/PLC 1 21/8/89

MR M.F. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR T.A. GAME, who is not here because

of the airlines, and with my learned friend,

MR M.J. SYKES, who is, for the applicant. (instructed

by Sykes Bidstrup)

MR J.J. DOYLE, QC, Solicitor-General for South Australia: If the Court pleases, I appear with my learned friend,

MR B.J. ILLINGWORTH, for the respondent. (instructed

by the Crown Solicitor for South Australia)

MR GRAY:	May it please the Court, I hand an outline of the
applicant's submissions to Your Honours.
MASON CJ:	Thank you.
MR GRAY:	Your Honours, may I hand to you also two sets of documents which perhaps should have been in the application
book but which were not.  The first is the Crown's
notice of appeal in the matter and the second is the report to the Court of Criminal Appeal on the Crown's application for leave to appeal against the sentence
by the sentencing judge.
MASON CJ:	Thank you.
MR GRAY:	Your Honours will see from the notice of appeal by
the Attorney-General that the sentences appealed against by the Crown were four offences of armed
robbery which attracted sentences of five, seven
years six months, 12 years and 15 years imprisonment respectively with a non-parole period of 11 years and
six months. The grounds of that appeal were on the
basis that the head sentence and the non-parole period was manifestly inadequate in that they failed to reflect the totality of the criminal conduct
involved and, secondly, that the sentencing judge
erred in principle in failing to direct that some or all of the sentences be served cumulatively.
of the appeal are the remarks of His Honour The remarks on sentence which were the subject Justice Matheson and appear in the application book
at pages 1-3. Your Honours will see that His Honour
sets out firstly the offences for which he is imposing the sentence and makes the observation in the middle of page 1, that:

The third and fourth offences were connnitted after 8 December 1986, upon which

date s.302 of the CRIMINAL LAW CONSOLIDATION

ACT came into force.

And His Honour then goes on to say:

As the Court of Criminal Appeal has said, 'Crimes committed on and after that date,

attract substantially heavier sentences'.

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Easton

His Honour then goes on to consider the prisoner's

antecedents and in particular refers on page 2 to
his "unfortunate childhood"; to his heroin addiction,
in the middle of the page and makes the remark

two-thirds of the way down that he agrees with his

counsel that the outlook for his:

rehabilitation is not as poor as is often

the case in cases such as this.

And then His Honour sentences, in effect, on page 3

of the application book where he says:

I take into account in your favour that

the weapon used was only a toy pistol, so no

person was in actual danger. However, the

staff of the establishments which you robbed

must have suffered a considerable amount of

anxiety. The courts have said over and over

again that offences such as these must be

treated with the utmost seriousness. I have

decided to make your sentences concurrent, but

I bear in mind what the Chief Justice said in

REG V KNOWLES 137 LSJS p.6, that where the

sentences are to be made concurrent, it is

imperative that the duration of the sentences

on the second and subsequent offences

reflect the totality of the criminality

involved.

And Your Honours have seen from the report that was
made in respect of the Attorney-General's appeal
by the sentencing judge that His Honour reiterates
that he had very much in mind, the remarks of the

Chief Justice in REG V KNOWLES and that he endeavoured

to fix the sentences that reflected the totality of

the criminality involved. His Honour also refers in

that report to the fact that he sentenced the applicant

the day before the Court of Criminal Appeal gave

judgment in the REG V ROSSI and if that judgment had

antedated his decision he may well have fixed longer

terms but he noted that in that case a shotgun was
used and actually discharged.	I make an observation

here about REG V ROSSI and that is that that case

was a case where the sentences were imposed on the

view of section 302 that t::re S::lJth A.stralia:1 Ccurt of Crimi.ml

Appeal held prior to the decision of this Court in the instant case which formed the subject of the successful special leave to appeal and the remission to the South Australian Court of Criminal Appeal.

McHUGH J:  Where is the report of His Honour to the Court of

Criminal Appeal?

MASON CJ: In the documents handed up.

MR GRAY:	Your Honour has the notice of appeal of the
Attorney-General.  I hope on the back of that is
the report of His Honour.

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Easton

McHUGH J:	I see, yes.
MR GRAY:	When the matter went to the Court of Criminal Appeal
on the Crown appeal - if I may refer Your Honours
to the way that the court dealt with the Crown appeal and the perceived error that the court saw in the learned sentencing judge's approach to the matter.
That appears in the application book at page 5, as
far as His Honour the Chief Justice is concerned,
where His Honour refers specifically, in the second
paragraph, to:

The first two crimes were committed

prior to the commencement of section 302 of

the CRIMINAL LAW CONSOLIDATION ACT.

And goes on to say:

Nevertheless, in view of the fact that the appellant's record and, in particular, the

crimes of robbery for which he was sentenced

to seven years imprisonment in 1977 and the
absence of significant mitigating factors
apart from the fact that the weapon used
was not a real firearm, I think that the
sentences imposed by the learned judge were

below the minimum standard appropriate to

each of those crimes even considered in

isolation. I would increase both sentences

to imprisonment for eight years.

The two later crimes were committed after

the commencement of section 302. I think that

the sentence of 12 years imprisonment is
justified for the first of those crimes. I

think, however, that a sentence of 15 years

for a crime which does not involve a weapon

capable of inflicting harm is excessive. I

would reduce the sentence for the last crime

to 12 years.

The crimes were separate transactions

and in strict legal theory called for
consecutive sentences. It is necessary,
however, to consider the effect of the total

sentence. I think that justice will be done

if the sentences for the two earlier crimes

are made concurrent with one another and the

sentences for the two later crimes are made

concurrent with one another. The concurrent

sentences for the two later crimes should

commence at the expiration of the concurrent
sentences for the earlier crimes, making a

total of 20 years.

He subsequently imposed a non-parole period in relation

to that sentence of 20 years of 15 years.

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Easton

His Honour Justice White in the application book

at page 38 and following deals with his approach to

the question of sentencing and at the bottom of page 38,

said:

The sentences and groupings suggested

by Mr Doyle Q.C., which I think are appropriate,
were 8 years on each of the two pre-December

1986 offences (concurrent) and 12 years on

each of the two offences after that date

(concurrent), the two sets of concurrent sentences

being cumulative, one set upon the other.

The total sentence is 20 years on this

calculation.

In my opinion, the sentencing discretion

miscarried because 15 years was too long for

the last offence and 5 years was too short
for the first offence. Further, I think that,

under the totality principle, 15 years

imprisonment was too short when a line is taken

through ROSSI and KNOWLES. Finally, I think

that 11\ years is too short a non-parole
period in relation to the 20 year head sentence.

Now, the sentencing process that this Court held to be in error when this matter came before the Court

on an application for special leave to appeal was

because of the influence of the wrong construction

placed on section 302 of the CRIMINAL LAW CONS:>LIDATION

ACT in REG V DUBE AND KNOWLES. That enabled, in

the view of the South Australian Court of Criminal

Appeal, that court to consider a 50 per cent increase in the standard or tariff for crimes committed after

the enactment of section 302. Indeed, what was done

in this case on the first occasion by the Court of

Criminal Appeal clearly showed that in that the

sentences of eight years for the pre-section 302

crimes were increased to 12 years for the post-section 302

crimes.

Now, it is our submission that that error which was identified by this Court, that error of construction

of the South Australian Court of Criminal Appeal,

operated to disadvantage the prisoner being sentenced

both at first instance and on appeal. Now, when the

matter went back to the Court of Criminal Appeal

it went back to that court on a particular basis and

that basis I have set out in paragraph 5 of my

outline which is taken from page 21 of the judgment

of this Court. May I interline here: the judgment

of this Court is now reported in 86 ALR 361 but

unfortunatel½ for perhaps reasons of the airlines or

something, we do not seem to have that most recent

part which was issued on 10 August.

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Easton

Now, the matter went back to the Court of

Criminal Appeal, really, on two bases: one, that

a general increase in sentences for armed robbery

may be thought appropriate having regard to the

fact that in DUBE AND KNOWLES Their Honours did not

need to consider any such general increase because

of their construction of section 302;and, secondly,

it went back on the basis of what was said to be

Easton's appeal against the sentence imposed in

respect of his two pre-section 302 crimes. In

fact, Easton had not appealed in respect of the

sentences imposed in respect of the two pre-section 302

crimes. He had appealed against his conviction but he

had no appeal on foot in relation to any of the

sentence itself.

Now, fundamentally, what then took place was when the matter came back before Their Honours,

the South Australian Court of Criminal Appeal,

both the bases of reconsideration were not then
operative because what the court did in relation to
the matter was to determine that it would not generally
increase the level of sentences for armed robbery as

far as this case was concerned and, of course, there was no appeal in relation to Mr Easton at that time.

During the course of the hearing before the

Court of Criminal Appeal, application was made for

leave to appeal against all of Mr Easton's sentences

and that application and the accompanying extension

of time within which to do it were not granted by the Court of Criminal Appeal. Now, Their Honours

then went on to look at the matter as though - perhaps

I should not describe how they went on to look at it

but refer to what they did. Their judgment in relation

to that is in the application book at page 61 and

following.

Your Honours will see that after a recitation

of the circumstances the court refers to a case of

REG V OWENS and adds some connnents derived from

that case as to the possible genesis of section 302

and reconnnending the abolition of good conduct remissions and to the fact that the High Court in this matter had granted special leave to appeal, and connnents at the bottom of page 63 of

of the CRIMINAL LAW CONSOLIDATION ACT and refers to remissions

the fact that the judges had reported to the

what would be the effect of the High Court

decision upon sentencing practice and says:

The innnediate effect must be a reversion

to the standards of punishment prevailing

before the enactment of section 302. From

the history which I have related it seems

plain that the government and perhaps

parliament will have to consider whether the

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Easton

section, as now understood, expresses

the legislative will or whether further

legislation is to be undertaken. Until

that is decided and the legislative position

is clarified, it would be expedient, in

my opinion -

I think "expedient" should be "inexpedient" -

for the courts to embark upon any revision

of the standards of punishment for any

particular type of crime. The present

appliction must therefore be determined upon

the basis of the standar& of sentencing which

prevailed before the enactment of section 302.

His Honour goes on to say:

In this case the Solicitor-General sought

to argue that the standard of punishment
prevailing prior to the commencement of
section 302 for the crime of armed robbery

should be reconsidered and revised. For the

reasons which I expressed in that last

passage from my remarks in REG V OWENS, I think

that it would be inexpedient for the Court at
this juncture to consider submissions of that

kind.

Then he refers to the seeking of the adjournment to consider whether there would be "legislative

intervention", and then goes on to say:

It remains to consider the effect of the

High Court judgment upon the sentences which were fixed by the Court of Criminal Appeal and
which were the subject of the appeal to the

High Court.

Now, that statement, we would say, has to be

looked at in terms of the fact that there was a

refusal to allow an appeal by the applicant against

his sentence, particularly with respect to the first

two sentences. His Honour then went on to say:

The High Court's interpretation of

sentences for the crimes which were committed before the commencement of that section.

section 302 of the CRIMINAL LAW CONSOLIDATION

The crimes which are the subject of counts

one and two in the information were committed

before that date. This Court of Criminal

Appeal accepted at the former hearing that

the sentences imposed for those two crimes

were inadequate and allowed the Attorney-General's

appeal for the purpose of increasing time.

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Easton

Now, I would comment there that that is so

but it was done in a context of looking at the

total appropriate sentence.	His Honour goes on to
say:

There is nothing in the High Court judgment which would cause this Court to reconsider

that approach and I am of the opinion that
the sentences for counts one and two were

inadequate and should be adjusted in the way

which the Court of Criminal Appeal adjusted

them in the order appealed from to the High

Court, that is to say, there should be a

sentence of 8 years imprisonment on the

first count and 8 years imprisonment on the

second count.

Now, with respect to His Honour, we would criticize

a reference to an approach which was not an approach to

consider individually each of the sentences and to,
in some way, arrive at an appropriate total sentence

but an approach which by the very terms of the Crown

appeal itself sought to look at the totality of the

sentence and whether or not that totality was

appropriate to the actual sentence that was imposed

by the sentencing judge. It also, in our submission,

almost makes totally rigid some form of standard of

sentence that DUBE AND KNOWLES is authority for

establishing prior to section 302. In the end

result, it provides a base upon which some edifice
is subsequently erected and we would say it was

wrong to do that. But, more particularly, the concept

that a rigid eight years is the standard of sentences

for armed robbery, at any particular time, we would

say is an unduly narrow approach to any question of

standard.

There are three points that we would make with

respect to that. The first is that although

DUBE AND KNOWLES spoke of a standard pre-section 302,

that standard was more particularly established in

a case of REG V DORNING, (1981) 27 SASR 481.

MASON CJ:  Mr Gray, are you now going to take us through a

series of South Australian decisions establishing a

standard or tariff for armed robbery?

MR GRAY:  No, I merely want to do this, Your Honour: I want to

establish that the standard or tariff was a loose

standard or tariff, not a rigid eight years. And I will not take Your Honours to the case, I will just merely comment with respect to DORNING that the

standard or tariff was said to be between six and

eight years. And subsequent to section 302, in the
case of REG V KING, 48 SASA 557, the standard after

section 302 had been enacted on the view that the

Court of Criminal Appeal had wrongly taken with respect

to section 302 was nine to 12 years.

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Easton

It should also be borne in mind that in DUBE AND

KNOWLES itself the sentences which were said to be appropriate as reflecting the pre-section 302 standard, that is the sentences imposed upon Mr Dube and the

sentence imposed upon Mr Knowles, were, in the case of

Mr Dube, a sentence of four years which was not increased because there were certain special features of

Mr Dube's crime, and as far as Mr Knowles was

concerned, his sentence of six years with an eight

year concurrent sentence was said to be appropriate

as to a six year sentence with eight years cumulated

on it but which should be reduced because of the total

sentence to - the eight years should be reduced to six to give him, with a cumulative sentence, six plus six:

12 years.

DAWSON J:	I do not see where you get the suggestion that the court was imposing a rigid standard of eight years.
Eight years they were content with but why was it
imposing some rigid formula?
MR GRAY:	I say it was imposing a rigid formula by not regarding
the sentences to be at large, having regard to the fact that the standard is not a rigid standard and the court did not regard those sentences as being
at large.
DAWSON J:	Do you get that from the bottom of page 64 and the

top of page 65?

MR GRAY:	Yes, I do, Your Honour, taken with the fact that the
application for this applicant's leave to appeal
against all of the sentences was refused and it seems to have been refused on the basis that at this stage those sentences in respect of the pre-section 302 offences were now to be untouched.

His Honour went on to say:

It remains to consider the sentences

imposed in respect of counts three and four.

The crimes which were the subject of those

counts were committed after the commencement

of section 302 and the sentences fixed by

the Court of Criminal Appeal were fixed upon

what has turned out to be an erroneous view

of the section.

Now, with respect to His Honour, that is so but the

misapprehension with respect to section 302, we say,

infected the totality of the sentence as well as any

individual sentences.

Mr Gray, Q.C., for the respondent,

argued that, this being an Attorney-General's

appeal, this Court should not interfere at

all unless the total sentence which the

Court considers to be appropriate sufficiently

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Easton

exceeds the total sentence fixed by the learned sentencing judge as to bring it within the class of cases which justify the intervension of the Court on an

Attorney-General's appeal.

His Honour then goes on to say:

It seems to me, however, that the inadequacy

of the sentences on the first and second
counts, and particularly the inadequacy of
the sentence on the first count, itself

requires the intervention of this Court.

Now, to that, we would say that that, with respect to

His Honour, is not an adequate response to the

concept of looking at the total sentence and seeing

what that total sentence ought to be having regard to

the misapprehension that had existed with respect to
the effect of section 302. In effect, the process

is put on its head by His Honour by regarding those

sentences in relation to the first two offences as

being fixed and pre-determined. His Honour goes on

to say - and this is really shown by this next

passage:

Once the sentences on the first and second counts are increased it is necessary to consider the total sentence of imprisonment

which results. -

That is so in one sense but we say it was always

necessary to consider the total sentence having

regard to each of the individual sentences as the

first approach.

His Honour goes on to say:

I think that in the light of the standards which prevailed before the connnencement of

third and fourth counts require adjustment.

section 302, the present sentences for the

Now, in effect, that is, strictly speaking, in

our submission, not right. The sentence, particularly

the last sentence, required adjustment ra:;t-se:::tim YJ2
on the basis that the Court of Criminal Appeal thought

that that sentence was excessive in the first place.

What His Honour there says seems to be a suggestion

that there was nothing wrong with those two sentences
that were imposed by the learned sentencing judge

in relation to offences that occurred after

section 302.

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Easton

MR GRAY (continuing): His Honour goes on to say:

I think that a reasonable and perhaps a

somewhat merciful sentence for the third

count would be imprisonment for 8 years.

It is clear, having reached that conclusion, that any accumulation of the sentences for
the four crimes must be modified to take

into account what is known as the principle
of totality. One cannot permit accumulation

to a point at which the total sentence would

be crushing and unreasonable. I think that

this can only be avoided by some degree of

concurrency. The Court of Criminal Appeal
on the previous occasion made the sentences

for the-first and second counts concurrent with one another and the sentences for the

third and fourth counts concurrent with one

another. I think that that is the best and

most reasonable way of achieving a reasonable

aggregate sentence. I would, therefore,

order that the sentences on the first and

second counts be served concurrently with

one another, and that the sentences on the
third and fourth counts be served concurrently

with one another, but make the sentences on

the third and fourth counts cumulative uuon

the sentences on the first and second counts.

He considers all of this matter of cumulation before he goes on to then look at the appropriate

sentence on the fourth count.	Now, in so doing,
again - - -

DEANE J:	Mr Gray, I have got a little bit lost somewhere.
Are you saying that this Court was mistaken
in opening up the sentences on the first and
second count? Because, if you are, I have trouble
seeing how it helps you.
MR GRAY: I do not know that	it helps me, Your Honour.

It is just that I am saying that this Court left

at large the question of the first and second

counts.

DEANE J:	But as I follow what you are saying, it is that
this Court was mistaken in thinking there was
an appeal to it on the increase sentences imposed on the first and second count.
MR GRAY:	That would appear to be so, Your Honour, on the
fact that there was not an appeal on foot so
far as the applicant was concerned with resuect
to the sentence on the first and second cou~ts.
DEANE J:	My recollection was that the appeal was conducted
on the basis that the whole sentence was under
attack.  I am mistaken in that?

AIT2/l/JM	11	21/8/89
Easton

MR GRAY:	In one sense the whole sentence was under attack because the error - the application for special leave was conducted on the basis that both the
sentencing judge and the Court of Criminal Appeal had misapplied section 302 of the CRIMINAL LAW
CONSOLIDATION ACT.  The effect of that misanplication
was, in effect,that in particular the Court;~
Criminal Appeal imposed greater sentences and a greater total sentence than would otherwise have
been justified had they adopted the correct
interpretation.
DEANE J:	But do you say that this Court should have
left the sentences for the first and second offence
in tact at eight years?
MR GRAY:	No, I do not, Your Honour, I say that if
this Court were to have elected not to remit the matter, for reasons which would appear good
reasons, namely to give the Court of Criminal
Appeal the opportunity of reconsidering the
sentence as a whole on the basis of an increased standard for such offences and also on the basis
that this Court thought that there was an appeal
open to Mr Easton with respect to the first two offences - if this Court were to remit it on that
basis, if that basis were not there, this Court
may well not have remitted the matter. If it did
not remit the matter, the real question is what is the appropriate approach for the Court to take.
We say two things: we say the approach that the Court of Criminal Appeal took to this matter was
not the appropriate approach to be taken in relation to a matter which was a Crown appeal where an
error was identified which adversely affected the
applicant, at first instance, and the consideration by the Court of Criminal Appeal; secondly, when the court came to its task, it then did not properly
perform its task having regard to the sentences
which ought to have been at large before it and
the ap9ropriate sentencing process to be followed.
McHUGH J:	But do your submissions not overlook the effect

of the totality principle? You see, on this
Court's decision, we held the third and fourth
sentences had been affected by error, but to
some extent, by reason of the totality principle,

those sentences had been reduced in any event.

When you go back, although the error is corrected

in respect of the third and fourth sentences, the

totality principle has still got to be taken

into consideration and you might well come out, as the Court appears to have done in this case,

at very much the same result. You see, without

the totality principle, the Court of Criminal

Appeal on the first occasion may have given you

20 years up front.

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Easton

MR GRAY:	They did.
McHUGH J:	I know that is the total, but I am saying, just

for an illustration, 20 years on the third and

fourth alone, and made them all cumulative,

but they could not because of the totality

principle, so they cut them back.

MR GRAY:	There is no doubt that that operated in relation
to the first sentencing process.

McHUGH J: Yes. It has got to operate again in the second

sentencing process, except that the independent sentence of the third and fourth counts now, by reason of the construction of section 302,would

not be as high. But the totality principle

may not require them to be cut back so much.

MR GRAY:	My only response to that, Your Honour, is really
that the totality principle is said to work in
two ways: one, of course, is the way that
Your Honour is looking at it and saying ultimately
if a total sentence is so crushing and oppressive
then it is to brought back.  But in any sentencing
process it is necessary to look,indeed,at the
totality having regard to the nature of the
criminal conduct and if you restrict yourself
from doing that, I say that you would fall into
error.  The totality operates in two ways, but
one of the ways that it does operate is to look at the criminal conduct involved and to determine
what would be an appropriate sentence overall - - -
McHUGH J:	I appreciate that.
MR GRAY:	- - - then to structure the sentence around it.
But if a Court reeards itself as bound to hold
to two sentences in that process and then to
in some way build upon it and reconstruct it
that, we would say, is wrong.
McHUGH J: But, you see, it would not have surprised me

if when you went back you got the same total

sentence,in any event, of 20 years, because,

indeed,I must say I am a little surprised that

your total sentence is reduced. If-the court thought

20 years on the totality basis was the proper

thing, well, even when you take into account the

error, it still may come out at 20 years because,

of course, the totality principle operates to

reduce the length of the independent sentences.

MR GRAY:	The totality principle operates to reduce the
length of the independent sentences taken in
isolation and cumulated.
McHUGH J:	Yes.

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Easton

MR GRAY:	What I am talking about by way of totality starts
at the other end of the scale and looks at the criminal conduct involved. Here we have the criminal conduct of four armed robberies and, I say, looking at that sort of totality, from the up-front
totality, a sentence of 20 years in its own terms
would be excessive. Indeed, all that we would say
is that a sentence imposed, like that imposed by
the learned sentencing judge in the first case of 15 years for those armed robberies, was a not inappropriate sentence. It was not considered to be inappropriate in the sense that we did not a~peal against it.
GAUDRON J:	Does that mean, Mr Gray, that your submission

goes to the proposition that the Crown appeal

should have been dismissed, that the original

sentences, having been infected by error

by virtue of the interpretation of section 302,

it could not, when the matter was reconsidered,

be said that there was such disparity in

sentencing that an appeal should have been allowed?

MR GRAY:  Yes, Your Honour. My ultimate proposition then

is to say that given all of this, and this being

a Crown appeal, that it is not a question of
fine tuning; it is not a question of just looking

at these things and resentencing. It is that the

Crown appeal ought to have been disallowed - dismissed -

and leaving the original sentence.

GAUDRON J:  But if it were not to be dismissed, if it were

thought to be that the error which occurred by

virtue of section 302 were such that the original

sentences should be reviewed, can you then complain

as to what was done?

MR GRAY:	We can, at least in this way, if we had appealed
then the court could not have increased what had
been done. If our appeaJ. were successful on the
basis that there had.been the sentencing error
which had increased the sentence which we might
otherwise have expected, or indeed that there
was an identifiabie sentencing error which
required a reconsideration, then section 353(5)
of the CRIMINAL LAW CONSOLIDATION ACT would
protect us from an increase in that sentence itself.
That is why we say there are somewhat different
consideration when one comes to look at this in terms of a Crown appeal, because we have that
in-built urotection in relation to errors that
we might identify and be successful with, and with a Crown appeal, given its very nature, even though
an error has been identified, if in the end result
the sentence cannot be said to reflect that error ultimately, then there should be no tinkering with
it. It should not be a matter of fine adjustment
and we say that we were entitled, having regard to

AIT2/4/JM	14	21/8/89
Easton

the proper effect of section 302 on the sentencing

process, to have our sentence considered as being

a sentence which at the very least was not

inappropriate, and if that were the case, then it

being a Crown appeal, the appropriate order would

be to dismiss the appeal.

GAUDRON J:  The principle, you say, as raised by this case

is one relating to the principles to be applied

on Crown appeals. Is that right?

MR GRAY: Part of it is - it is really a two-pronged thing,

Your Honour. Part of it is the nrinciples to be applied to Crown appeals. That arises,

really, directly as a consequence of this Court

remitting the matter rather than determining the

matter on the first occasion; remitting it for

good reasons which appeared at that time but which

ultimately have now evaporated and disappeared

and that now, considering this matter, having

identified an error in the sentencing process,

it is appropriate, having regard to the fact that

this is a Crown appeal, to make an order which

dismisses it.

DEANE J:  But is your problem not this: if you look at the

Crown's grounds of appeal, the appeal was all about

the head sentence and the non-parole period are
manifestly inadequate and they fail to reflect

the totality? That appeal ground was diverted

because the Court of Criminal Appeal had taken a

view of section 302 for which the Crown did not

contend at the time the Court of Criminal Appeal

took it, as I understand the position.

MR GRAY:	I think they did, Your Honour. The Crown's
DEANE J:	I thought originally - not in this case, in a
previous case - the view that the Court took
of section 302 differed somewhat from the view
which the Crown itself pressed.
MR GRAY:	That is in DUBE AND KNOWLES, yes, but - - -

DEANE J: Yes, but that is by the way.

MR GRAY:	- - - Your Honour, what they did in this case
was to, in effect, apply it on a basis - indeed, it was their submission that the eight years - - -
DEANE J:	But Mr Gray, you are not letting me put the problem
to you, and that is, having diverted - the Crown's
primary attack on totality, having been absorbed
in the section 302 approach, it would have been
quite wrong for this Court to have upheld the section 302 approach and said, "Oh well, because the Crown succeeded on 302 in the Court of
Criminal Appeal, we'll just disregard the fact

AIT2/5/JM	15	21/8/89
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that a question of totality was put at the very

forefront of the Cro'i.7!1' s appeal." Perhaps I am

being obscure, but do you follow the point that

is troubling me?

MR GRAY:	Perhaps my answer will reveal how obscure
Your Honour is, or whether or not I have appreciated
what Your Honour is putting.  The Crown, in support
of its totality argument, advanced the proposition
in this matter that the appropriate sentences for
the offences which occurred post-section 302
should be 50 per cent higher than the sentences
that were in fact to be imposed, or what the
Crown thought were the appropriate sentences to
be imposed in relation to the pre-section 302
things.  The effect of that, of course, is to
achieve a much greater totality than if
section 302 had been interpreted in a different way. So they were, in fact, relying upon the
interpretation of section 302 to get a total,
that is, eight plus eight, plus 12 plus 12, as appropriate sentences across the board to achieve
a total which could be reduced in the exercise of
the totality principle to something.

Now, if that is an error and that the appropriate

sentences were not so large, then we would say that

the Crown has failed to make out its propositions

on that ground, and having failed to make out those

propositions, its appeal should be dismissed.

DEANE J:  I do not quite follow that, I am sorry.

DAWSON J:  I am not sure that I do either. Mr Gray, in

relation to the first two counts, what the

Court of Criminal Appeal said when they were

sent back, "Well, we've looked at these a3:ain.

We have seen what happens and having looked at

it again, we think that the eight years which

were imposed on the previous occasion, upholding

the Crown appeal, was correct." Then they went

on to look at the third and fourth counts.

What is wrong with that? What is rigid with

that? What have they failed to do that they

should have done?

McHUGH J: Could I just add this to that: that they gave

eight the first time, knowing that they were going

to give 12 the second time. So that without that

additional 12, they might have even given you a

bit more than eight.

MR GRAY: Well, we would say not, having regard to the

fact that this was in fact a standards case

as far as the Crown was concerned. I have tried

to put that the standard is not just a flat eight;

it is between six and eight. Given - - -

McHUGH J:  The court recognized that, did they not, in the

first time because Mr Doyle had said it had to be

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adjusted up or down and there were factors

that - - -

MR GRAY:	It is just that when one comes to go through
the process again - all we are seeking is that
that same process be gone through, that the
first two be adjusted up or down and the last
two be adjusted up or down.  What we can complain
about is the fact that the first two were unadjustable and they ought to have been
capable of being adjusted.
McHUGH J:	But because of the totality principle, there

is always something artificial, whether you impose concurrent or consecutive sentences,

there is overlapping and one sentence standing

alone might be a bit too high, but in reality

you look at the totality of it.

MR GRAY:	With respect, Your Honour, I agree with that
because in the end result the totality is to properly reflect the criminal conduct involved
and that the particular individual sentences are
not sacrosanct and can be adjusted. Indeed
we would have seen nothing wrong with what happened at first instance in this case even though it could be said that on any principle five and a half years is too low, and we would
have said 15 years is too high, but the ultimate
total is a reasonable total.

McHUGH J: Right, yes.

MR GRAY:	Once you make fixed in that equation any aspect
of it, then all you are doing is building on it
and not giving proper regard, we would say, to
the concept of making the punishment fit the
crime, having regard to the total effect. Clearly,
there is in the totality principle itself, a great
deal of artificiality because it involves actually
bringing back what would otherwise be considered
to be too great a punishment, even though, as it
has been said, each of the individual sentences
could well be separately justified and in this case, when one is talking about the totality
principle, even reducing all of the crimes to an
eight year crime, we are talking about 32 years. All that I am saying is that in that process the
most important aspect of the process is to ensure
that there is the flexibility in it and what I
am saying here is that the court here wrongly regarded themselves as constrained in some way.

McHUGH J: Does it come to this: that your case stands

or falls on the proposition that the court led

itself into error by regarding the first two

sentences as fixed?

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MR GRAY:	Yes, there is an infection, we would say, in
the sentencing process in the sense that it also made the fourth sentence a leading sentence
on a concurrency principle which had the effect
then of increasing the total whereas it had already
determined - and this may be artificial in any event -
that to reflect the series of crimes, it would make
second series of the sentences cumulative upon the first series. We would say there is an element
of double ~ounting to then make the fourth sentence two years greater than the third sentence on the basis that that sentence has to reflect the criminal conduct of the fourth offence taking place with the background of the third offence.

I mean, in reality, there is, we would say

with respect to the court, a degree of sophistry
with respect to all of that, given that one is

trying to, again, obtain an appropriate total

sentence and we would say that in engaging in that

exercise the court was also, in effect, not having regard to the total appropriate sentence. The -

court's reasoning in relation to what it was doing in relation to the latter remarks that I have made

are set out at pages 66 and 67 of the application

book.

Your Honours, I do not know that anything is

to be gained by going through the cases that I

have referred to in paragraph 8 of my outline

dealing with concurrent and cumulative sentences.

I do not think they say anything that is new to

this Court.	We say there are two approaches one
can make to sentencing.	We would see them as

generally mutually exclusive in any event, and

I am talking now about sentencing in respect of

a series of offences. One can look at the series

of offences and make all of the offencesconcurrent,

as I have already put to Your Honours, but one would

reflect the seriousness of the conduct and

having regard to the total sentence that ought to

be imposed by imposing a sentence as a leading

sentence and lesser sentences, or alternatively, making

indeed, all of the sentences on all of the offences

of equivalent weight but that sentence reflecting

the totality of the conduct. And the alternative

to that approach is to consider the cumulation

of offences, but we say it is wrong - - -

McHUGH J: In strict legal theory it depends on what

Mr Justice ..... said was whether or not there

was a multi-faceted course of criminal conduct.

If there is, then you can impose concurrent sentences

but if they are separate transactions - - -

MR GRAY:	We would say that it is still -and it recognized
by DUBES AND KNOWLES itself - open in
relation to a series of criminal offences of like

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kind, such as here, to impose concurrent

sentences, but I am tending now to go back into

an argument that really properly ought to have

been addressed to the Court of Criminal Appeal

as to the desirability of one course as against

the other. But I do say that the two approaches

to sentencing ought not to be confused and I

do say that imposing a sentence of 10 years for

the fourth offence here shows, in my submission,

a confusion of the two concepts because that

brings in the things regarding concurrent
sentences into what is essentially a sentencing

exercise that the courts have adopted of cumulating

sentences and bringing them back having regard to

totality principles.

Your Honours, the only other point that we

would make with respect to this is that the non-parole period ultimately was fixed at a proportion greater than three-quarters of the

head sentence, although it had been three-quarters

of the head sentence both at first instance and

on the first occasion when the Court of Criminal

Appeal dealt with the matter. Effectively that meant that the non-parole period was some six
months more than what one would have expected

if the proportions had been kept the same.

Perhaps_ to go back just briefly to one

asnect and that is related to the aspect of

Cr~wn appeals, the role of Crown appeals as far

as the South Australian Court of Criminal Appeal

has been concerned in the past is basically set

out in that court's decision in REG V OSENKOWSKI,

30 SASR 212. Without going to that case I merely

comment that the court has said that "The proper
role for prosecution appeals is to enable the
courts to establish and maintain adequate standards
of punishment for crime to enable idiosyncratic
views of individual judges as to particular crimes

or types of crime to be corrected and to correct

a sentence which is so disproportionate to the

seriousness of the crime as to shock the public

conscience." That has been said to be the

principles upon which Crown appeals should be

dealt with by the Court of Criminal Appeal.

DEANE J:	Mr Gray, could I divert you for one moment? I have been troubled by the suggestion that this
Court overlooked the fact that there was no apneal
against the two earlier sentences.  Looking at - the
appeal book, the application for leave stated that it was for leave to appeal from the whole of the
judgment.  The draft notice of appeal expressly
focused on the total head sentences and non-parole period and stated that the court below was in· error in fixing a total head sentence of 20 years and in fixing a non-parole period of 15.

AIT2/9/JM	19	21/8/89
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Now, looking also at the way the case was argued

where it seemed to have been cormnon ground that

the matter would be going back to the Court of

Criminal Appeal and where this Court was never, as it were, asked to simply alter sentences, I

have a little difficulty in accepting that there

was no appeal against all sentences in a case

where the whole focus of the appeal was against

the resulting head sentence.

MR GRAY:  As far as this applicant was concerned in his
application for special leave to appeal?

DEANE J: In this Court.

MR GRAY:  On the first occasion?

DEANE J: Yes.

MR GRAY:	I think undoubtedly that is so, Your Honour,
that as far as this applicant was concerned,
all the sentences as far as he were concerned
were in issue. Are we at cross purposes,
Your Honour?
DEANE J:	Yes.  I had thought you said to me earlier that this Court had been mistaken in treating the
appeal before it as involving an appeal, or as challenging the whole of the sentence, including the first two sentences.
MR GRAY:	I am sorry, then we are at cross purposes. The
application for special leave to appeal challenged
the whole of the order of the South Australian
Court of Criminal Appeal in relation to each
of the sentences involved. All that I am saying
is that there was no separate appeal on foot
originally from this applicant in relation to
his sentence.  We regarded the Court of Criminal
Appeal of South Australia, when the matter went
back to them, as having as a live issue before
it all of the orders that it had made.
DEANE J:	We were at cross purposes.  I was just looking
to see how we could have made such a mistake.
MR GRAY:	No, no.

DEANE J: But obviously I misunderstood what you said.

MR GRAY:	And Your Honour can see that in so regarding all
of the sentences there, we also sought to cement that position by appealing ourselves. But, in any event, we did not want the court constrained to think that the only sentencing orders that it
was to have regard to were merely the ones on
the third and fourth counts. That, of course, is to a certain extent the gravamen of our complaint
at this stage to this Court: that the court did
hold itself as so restricted and that that ultimately

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caused the sentencing process that they entered

into to miscarry. Those are my submissions,

if Your Honours please.

MASON CJ:  Thank you, Mr Gray. The Court need not trouble

you, Mr Solicitor.

The Court is not persuaded that the decision

of the Court of Criminal Appeal reflects any

error of principle and the application for snecial

leave is therefore refused.

AT 11.20 AM THE MATTER WAS ADJOURNED SINE DIE

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