Everett v the Queen

[1994] HCA 49

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, DAWSON, GAUDRON AND McHUGH JJ

EVERETT v THE QUEEN AND PHILLIPS v THE QUEEN

(1994) 181 CLR 295

26 October 1994

Criminal Law and Procedure (Tas.)

Criminal Law and Procedure (Tas.)—Appeal by Crown against sentence—Leave of Court of Criminal Appeal required—Principles governing grant—Appeal against suspended sentence—Sentencing judge contemplating suspension—Crown not submitting that suspension inappropriate—Relevance to application for leave Criminal Code (Tas.), s. 401(2)(c).

Orders

Applications for special leave to appeal granted. Appeals allowed.

Set aside the orders of the Court of Criminal Appeal of Tasmania and in lieu thereof order that the applications by the Attorney-General of Tasmania for leave to appeal to the Court of Criminal Appeal be dismissed.

Date of Order: 3 June 1994

Decisions

BRENNAN, DEANE, DAWSON AND GAUDRON JJ The appellants ("Everett" and "Phillips") each pleaded guilty in the Supreme Court of Tasmania at Burnie to the crime of aggravated armed robbery. On 4 October 1993, they came before Slicer J for sentencing. The sentencing proceedings were adjourned for pre-sentence reports and resumed on 21 October. His Honour heard submissions from counsel and on 22 October ordered that each of the appellants be imprisoned for a term of twelve months to commence from the time when he was taken into custody, namely, 28 July 1993 in the case of Everett and 4 October 1993 in the case of Phillips. His Honour ordered the operation of the whole of the unexpired part of the sentence of each appellant be suspended on the conditions that "he commit no crime or offence involving dishonesty or violence to the person for a period of two years" and that "he enter into a bond to be of good behaviour for a period of two years, such to be under the supervision of a Probation Officer". Under the current law of Tasmania, the condition relating to entry of a bond was inappropriate. It is, however, common ground that nothing turns upon that for present purposes. In pursuance of the suspension of the unexpired part of the sentence of imprisonment, each of the appellants was immediately released from custody.

2. On 4 November 1993, the Attorney-General for Tasmania lodged applications for leave to appeal against the sentences to the Tasmanian Court of Criminal Appeal. The applications for leave to appeal incorporated, apparently in accordance with established practice, a notice of appeal. On 13 April 1994, the Tasmanian Court of Criminal Appeal, by majority (Cox and Crawford JJ; Zeeman J
dissenting), granted leave to appeal, upheld the appeal and substituted new sentences. Everett was sentenced to imprisonment for one year and six months from 13 April 1994 with the last twelve months of the term suspended upon conditions that "he commit no crime or offence involving dishonesty or violence to the person for a period of two years following his release from prison" and that "for a period of one year following his release from prison he submit to the supervision of a Probation Officer and comply with his or her reasonable directions". Phillips was sentenced to imprisonment for the period of one year and nine months as from 13 April 1994 with the last twelve months of the term suspended upon corresponding conditions. For practical purposes, the most significant difference between the sentences imposed by the sentencing judge and those imposed by the Court of Criminal Appeal was that, under the Court of Criminal Appeal's sentences, each of the appellants was required to serve a term of imprisonment. Consequently, the appellants were taken back into custody to commence service of their respective terms.

3. The appellants applied for special leave to appeal to this Court from the decision of the Court of Criminal Appeal granting leave to the Attorney-General to appeal to that court. The applications came on for hearing on 3 June 1994 when full argument was presented both on the applications for leave and on the substantive questions which would be involved in the appeals if leave were granted. At the conclusion of the argument, the Court granted leave to appeal in each case. The Court went on to order that, in each case, the orders of the Tasmanian Court of Criminal Appeal be set aside and that, in lieu thereof, an order be made dismissing the application by the Attorney-General for leave to appeal to the Court of Criminal Appeal.
The Court stated that it would publish the reasons for those orders in due course.

4. All members of the Court of Criminal Appeal considered that the overall sentences imposed by the learned sentencing judge were so unduly lenient that they did not fall within the limits of a proper exercise of sentencing discretion. The division of opinion between them was in relation to the question whether the circumstances were such as to justify a grant to the Crown of leave to appeal against sentence. In this Court, counsel for the appellants suggested that the differences between the sentences imposed at first instance and those substituted by the Court of Criminal Appeal did not indicate the type of manifest inadequacy which is ordinarily necessary to justify the intervention of an appellate court. The attack upon the judgment of the Court of Criminal Appeal was, however, confined to the decision of the majority granting leave to appeal.

5. The crime of which each of the appellants was convicted was a serious one. It involved the use of an unloaded shotgun to intimidate a middle-aged female assistant who was working alone at night in a Burnie milk bar and the stealing of approximately $950 in cash and two packets of cigarettes. On the other hand, there were mitigating factors to be taken into account in the sentencing process. The learned sentencing judge found that two other men, who were also implicated in other robberies in the Burnie area about the time, had involved Phillips in the commission of the crime and that he, in turn, had involved Everett who continued with the involvement through friendship with and loyalty to Phillips. The Crown effectively conceded that the role played by those other persons was more culpable than that of the appellants. At the time of the offences, Everett was eighteen years old and Phillips was nineteen. Everett had never been in trouble with the law before. Phillips' only relevant previous conviction was for a minor assault under the Tasmanian Police Offences Act. Both appellants were supported by character evidence which, at least in Everett's case, was particularly strong. Both received encouraging pre-sentence reports. Both pleaded guilty and displayed genuine remorse. The learned sentencing judge plainly considered that, in each case, the offence was completely out of character and that, if the balance of any custodial sentence was suspended, neither would re-offend. As regards Everett, he said:

"there is a significant basis for concluding that Mr Everett will not reoffend. Further time spent in prison will be likely to impede the process of rehabilitation. It is in the public interest that an 18 year old be afforded the opportunity of rehabilitation. The suspension of a sentence should operate as a form of future deterrence."

6. Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed ((1) See, e.g., Whittaker v. The King (1928) 41 CLR 230 at 248; Reg. v. Tait (1979) 24 ALR 473 at 476-477; Reg. v. Wilton (1981) 28 SASR 362 at 367-368; Reg. v. Holder (1983) 3 NSWLR 245 at
255-256; Reg. v. Peterson (1984) WAR 329 at 330-331; Reg. v. Stach (1985) 66 ALR 79 at 84; Cooke v. Purcell (1988) 14 NSWLR
51 at 57-58; Reg. v. Dowie (1989) Tas R 167 at 177; Arnold (1991) 56 A Crim R 63 at 64-65 (Sup. Ct. W.A.); Reg. v. Hillsley (1992) 105 ALR 560 at 565.). That being so, a "court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified" ((2) Malvaso v. The Queen (1989) 168 CLR 227 at 234-235.). In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v. The Queen ((3) (1977) 137 CLR 293 at 310. See, to the same effect, at 327 per Jacobs J, with whom Stephen J agreed, and 329-330 per Murphy J):

"an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted person".

The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle" ((4) ibid. at 310.).

7. In the present case, there was another more particular consideration which strongly militated against a grant of leave to the Attorney-General to appeal against the sentencing judge's order that the unexpired part of the sentences of imprisonment which he imposed should be suspended. It is that, in a context where the learned sentencing judge had made it quite clear that he was contemplating
making orders that the unexpired portion of any sentences of imprisonment be suspended, counsel who then appeared for the Crown made no suggestion whatsoever that such an order would be beyond the proper scope of his Honour's sentencing discretion in the circumstances of the case. Indeed, at one stage of the proceedings, his Honour, having expressed concern lest the complete suspension of any terms of imprisonment which he imposed upon the appellants might be seen by Everett as "unfair" by reason of the fact that Everett had been detained in custody for eighty-five days prior to sentencing whereas Phillips had been detained for but eighteen days, asked counsel whether he had "the power in law to impose community service orders in addition to gaol and if I was minded to suspend?" Counsel who then appeared for the Crown and counsel for the appellants all made submissions in relation to that question. Far from suggesting that failure to impose a term of actual imprisonment was inconsistent with a proper exercise of sentencing discretion, counsel for the Crown responded as follows:

"COUNSEL: Your Honour, in my respectful submission the position in 1993 in relation to community service orders is that the sentencing tribunal does not have to make a decision first that a term of imprisonment is appropriate. HIS HONOUR: That's right. COUNSEL: And then take the second step to ameliorate it. HIS HONOUR: I agree with that. COUNSEL: The sentencing tribunal can go straight to the question of community service orders. HIS HONOUR: Yes. COUNSEL: I can't assist as to whether or not you can do both."

In the event, his Honour concluded that it was not open to him to order community service in addition to the imposition of a suspended
term of imprisonment.

8. It should be mentioned that Mr Bugg QC, who appeared for the Crown, placed reliance upon the fact that, before the resumption of the sentencing proceedings on 21 October 1993, the Crown had drawn the attention of the sentencing judge to a case of Reg. v. Tol ((5) Unreported, Supreme Court of Tasmania, 16 November 1992.) where a sentence of two years imprisonment, with the last fifteen months suspended, had been imposed by Crawford J for the crime of aggravated armed robbery in circumstances which were, in important respects including the age (19 years) and absence of prior convictions of the accused, remarkably similar to those involved in the present case. In that case, the sentence of imprisonment was ordered to commence as from the date on which the accused had been taken into custody. If an identical sentence had been imposed on Everett, he would have been required actually to serve a term of imprisonment of approximately six months from the date of sentence, that is to say, approximately the period which he was required actually to serve under the sentence imposed by the Court of Criminal Appeal. It was submitted that the
action of the Crown in referring Slicer J to the case of Tol "obviously disclosed" what the "position of the Crown" was. There are, however, two answers to that submission. The first is that there were some significant differences between the personal circumstances of Tol and those of the two appellants which favoured the appellants on the question whether any sentences of imprisonment imposed upon the appellants should be wholly suspended. Thus, Crawford J expressly rejected at least part of the evidence Tol had given before him about the circumstances of his crime. More important, in contrast with
Slicer J's conclusion that the appellants' offences had been completely out of character and that they would not reoffend if a suspended sentence were imposed, Crawford J expressed the view that, in the context of "some bad aspects of (Tol's) life in recent years", he would not achieve rehabilitation unless he changed. The second answer is that, in all the circumstances, the Crown's action in drawing the attention of Slicer J to Tol's Case simply cannot, in the context of both what the Crown said and what it did not say during the subsequent sentencing proceedings, realistically be seen as a submission sub silentio to the effect that the suspension of the
unexpired term of any sentence of imprisonment would be even inappropriate, let alone involve a miscarriage of the sentencing discretion.

9. In these circumstances, the following comments of King CJ (with whom Mitchell and Williams JJ agreed) in Reg. v. Wilton ((6) (1981) 28 SASR at 367-368.), which have been cited with approval in this and other courts ((7) Malvaso v. The Queen (1989) 168 CLR at 240; Reg. v. Aloia (1983) WAR 133 at 134; Reg. v. Molina (1984) 2 FCR 508 at 513. See also Reg. v. Tait (1979) 24 ALR at 477; Reg. v. Jermyn (1985) 2 NSWLR 194 at 203-204; Casey (1986) 20 A Crim R 191 at
196; Economedes (1990) 58 A Crim R 466 at 469-471.), were applicable to the application for, and weighed heavily against the
grant of, leave to appeal to the Crown in the present cases:

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R. v. Tait and Bartley ((8) (1979) 24 ALR 473.) by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."

Those comments were made in a judgment disposing of an actual appeal after leave had been granted and, as the third sentence makes clear, are directed to a case where an order suspending the whole of the unexpired part of a term of imprisonment has been made with the result that the offender was entitled to go free. They should be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper
exercise of the sentencing discretion. Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave.

10. In the Court of Criminal Appeal in the present cases, Zeeman J correctly recognized that the question whether there should be a grant of leave to appeal against sentence is required to be considered as a distinct matter and that the mere fact that an appeal would be upheld in the event that leave were granted "ought not be determinative of" the application for leave notwithstanding that "the merits of a proposed appeal constitute a relevant consideration to the question of leave". His Honour expressly adverted to the significance of both the fact that the application was a Crown application for leave to appeal against sentence and the fact that "Counsel who then appeared for the Crown did not, at any stage of the proceedings, seek to advance any submission to the learned sentencing judge that it would not be appropriate" to impose "sentences of imprisonment which would be wholly suspended insofar as their future operation was concerned". Taking account of those matters, Zeeman J reached his dissenting conclusion that leave to appeal should be refused. We can see no error in either his Honour's reasoning or his conclusions.

11. On the other hand, Cox J and Crawford J, who constituted the majority of the Court of Criminal Appeal, each failed to accord proper significance to the failure of the Crown, in a context where the sentencing judge had made clear that he was contemplating wholly suspending any sentence of imprisonment, to make any suggestion that such a course was inappropriate. Cox J expressly stated that he saw "nothing in the conduct of the Crown in its presentation of the case to the learned judge passing sentence which militates against granting the Attorney-General leave to appeal". His Honour distinguished the above comments of King CJ in Reg v. Wilton on the ground that, in Tasmania, "a judge has an unfettered discretion to suspend the whole or any part of a sentence" whereas, in South Australia at the time when Reg. v. Wilton was decided, the discretion of a court to suspend a sentence was limited to suspending the sentence wholly if the court was of opinion that it was expedient so to do having regard to one or more of a number of specified matters. With due respect, however, that distinction does not affect the applicability of King CJ's comments to cases such as the present where what is involved is an order that the unexpired part of a term of imprisonment be wholly suspended with the result that the offender was entitled to go free.

12. Crawford J would seem to have considered that the failure of the Crown to make any submission in relation to the proposal to suspend the sentences should not be taken into account by reason of the provisions of s.386(11), (12) and (13) of the Tasmanian Criminal Code. The effect of those sub-sections, which were added in 1987, is to confer (sub-ss.(11) and (12)) upon "the prosecutor" an express "right" to address a sentencing court with respect to sentence and to provide (sub-s.(13)) that a failure by the prosecutor to exercise that right "shall not be taken into account by the Court of Criminal Appeal in determining an appeal against (the) sentence by the Attorney-General" (emphasis added). Crawford J noted that the direction that a failure of the prosecutor to exercise the "right" to address the court be not taken into account by the Court of Criminal Appeal was confined to the determination of an actual appeal as distinct from the preliminary decision whether leave to appeal against sentence should be granted. Nonetheless, his Honour concluded that the effect of those statutory provisions was that the failure by a prosecutor to exercise the right to address the court on sentence "should not usually be taken into account against the Crown when considering an application for leave". We respectfully disagree with that conclusion. In a context where the legislature has carefully confined the statutory direction to the determination of the actual appeal, we can see no justification for giving it such an extended and, from the point of view of an offender, adverse effect. To the contrary, it seems to us that the fact that the statutory direction may preclude account being taken on an actual appeal of the Crown's failure to suggest at the appropriate time that an order suspending a sentence of imprisonment should not be made adds emphasis to the need to attach proper significance to the implications of that failure at the leave stage. It is unnecessary to consider whether, in any event, the case was not one in which there was a "failure by the prosecutor ... to exercise his right" to address on sentence for the purposes of s.386(13). It should, however, be mentioned that Mr Bugg QC informed the Court that the Crown had not relied upon the sub-section before the Court of Criminal Appeal and did not rely upon it in this Court.

13. The judgment of Crawford J also discloses that his Honour fell into error in that he failed to accord proper significance to the consideration that the applications for leave to appeal against sentence were by the Attorney-General. His Honour apparently thought that that consideration weighed against a grant of leave only if it were possible to identify some particular unfairness or injustice to the appellants in the circumstances of the particular case. As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.

14. It was for the above reasons that we reached the conclusion that the majority decision of the Court of Criminal Appeal granting leave to the Crown to appeal against sentence should not be allowed to stand. In circumstances where the appellants had spent some time in custody (approximately twelve weeks in the case of Everett) and had then been released pursuant to the orders made by the sentencing judge (for approximately twenty weeks) only to be taken back into custody (for approximately seven weeks) under the orders made by the Court of Criminal Appeal, it was plainly inappropriate to delay the final resolution of the cases by remitting the applications for leave to appeal to the Court of Criminal Appeal for the reconsideration of that court. That being so, the interests of justice were best served by
this Court making the orders which it made.

McHUGH J The facts and issues in these matters are set out in the
judgment of the other members of the Court.

2. It is well established that, in those jurisdictions where the Crown has a right to apply for leave to appeal against a sentence,
leave should be given only in exceptional circumstances ((9) Griffiths v. The Queen (1977) 137 CLR 293 at 310; Reg. v. Tait (1979) 24 ALR 473 at 476-477; Reg. v. Wilton (1981) 28 SASR 362 at 367-368;
Reg. v. Hillsley (1992) 105 ALR 560 at 565.). The need for exceptional circumstances imposes a stringent barrier to the grant of leave to appeal in such cases. But, in my view, that barrier is not as stringent as the barrier that the Crown faces in this Court when it seeks special leave to appeal against an order of acquittal or new trial. To allow the Crown to appeal against an order setting aside a conviction is a step that can be taken only in very exceptional circumstances. The common law refused to set aside a verdict of acquittal. That tradition has influenced the application of the Judiciary Act 1903 (Cth) in so far as the general provisions of that Act permit the Crown to apply to this Court for special leave to appeal against an order setting aside a conviction. Some issue of fundamental principle must ordinarily be raised before the Court will grant the Crown special leave to appeal against such an order.

3. The approach of a court to a jurisdiction that specifically authorises a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application
for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual
create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.

4. If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.

5. The sentences in the present matters seem lenient. At all events, that was the opinion of every member of the Tasmanian Court of Criminal Appeal. If the Court of Criminal Appeal had merely concluded that the sentences were definitely below the appropriate range for this class of offence, I would not have been in favour of the grant of special leave to appeal in these matters even if I had thought that that conclusion was incorrect. But the reasons of each of the majority judges in the Court of Criminal Appeal contain a fundamental error as to the proper approach of a Court of Criminal Appeal faced with an application by the Crown for leave to appeal against sentence.

6. It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a Court of Criminal Appeal must take into account the attitude of the Crown in the sentencing court ((10) Tait (1979) 24 ALR at 477; Wilton (1981) 28 SASR at 367-368; Reg. v. Jermyn (1985) 2 NSWLR 194 at 203-205; Economedes (1990) 58 A Crim R 466 at 469-470.). Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown's concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion. This is particularly so when the convicted person has been given a non-custodial sentence. Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation. As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did.

7. In the present case, the Crown was aware that the sentencing judge was contemplating suspending the sentences of imprisonment. But the Crown did not suggest that it would be an error for him to do so. As the judgment of the other members of this Court demonstrates, neither of the majority judges in the Court of Criminal Appeal gave proper weight to the attitude of the Crown before the learned sentencing judge. In those circumstances, the exercise of the discretion to grant leave to the Crown was vitiated by their Honours' errors and the appropriate course for this Court was to deal with the matter itself.

8. It was for these reasons that I concluded that this Court should grant special leave to appeal, allow the appeals, and make the orders which it did.