Everett v The Queen; Phillips v The Queen

[1994] HCATrans 366

~

~ ·./~)A

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H8 of 1994

B e t w e e n -

DWAYNE EDWARD EVERETT

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Hobart No H9 of 1994

B e t w e e n -

ADAM DEZ PHILLIPS

Applicant

and

Everett 1 3/6/94

THE QUEEN

Respondent

Applications for special leave

to appeal

BRENNAN J
DEANE J
DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 JUNE 1994, AT 12.09 PM

Copyright in the High Court of Australia

MR D.J. PORTER: If the Court pleases, I appear for the

applicant in each matter.	(instructed by the Legal
Aid Commission of Tasmania)

MR D, J, BUGG« OC:  If the Court pleases, I appea.r with my

learned friend, MR, M.A. STODDART. for the

respondent in each matter. (instructed by the

Director of Public Prosecutions (Tasmania))

BRENNAN J: Mr Porter, although this is an application for

special leave to appeal, the Court will not

restrict you to the usual 20 minutes and would

invite you to say whatever you wish to say, as it
were, under the old procedure, that is, develop

your argument fully and say whatever you wish to

say.

MR PORTER:  I am grateful for that indication, Your Honour.

BRENNAN J: That does not mean it is not a special leave

application.

MR PORTER:  I think I understood what Your Honour was

intending to convey. I will attempt to keep it

concise in any event. Your Honour, there is one matter which perhaps

needs attention at the outset as to the applicant Phillipa. An extension of time in which to apply

for special leave is required and I so apply. I

understand that is consented to by my learned

friend.

MR BUGG: That is correct.

BRENNAN J: Time will be extended in Mr Phillips' case.

MR PORTER:  The questions which are set out in part l of the

applicant's summary of argument and which we say
are raised by the appeal, all esse~tially deal with

one issue. That issue is the principles which

govern an application by the Attorney-General for

Everett 2 3/6/94

leave to appeal against sentence, or to put it

another way perhaps, the factors to be taken into

account in relation to such an application.

It is our submission that thus far there is no

authoritative statement of principle applicable to

leave. This Court has, in the occasion of Malvaso

to which reference is made in the submissions, made

some comment concerning the applicable principles,

or at least factors which may be relevant in the

exercise of the discretion to grant leave, but
those comments were observations by a dissenting

minority.

The special leave question of the factors can,

in my submission, be distilled further in

accordance with the way it is set out in the

written submissions, and that is firstly whether

the observations of Chief Justice Barwick and

Justice Murphy in Griffiths, 137 CLR 293, at

pages 310, 329 and 331 respectively, apply to

applications for leave to appeal.

These statements are, no doubt, well known to

Your Honours. If I could firstly take you to

page 310, it is the passage commencing

approximately three-quarters of the way down the

page where His Honour said:

On my view of the proper meaning of

s 5O ••... 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 persons.

BRENNAN J: How does this arise? I mean, that particular

passage was referred to expressly by Justice Cox,

was it not?

MR PORTER:	Yes, it was, Your Honour.
BRENNAN J:	Do you not have to demonstrate some error of

principle which affects the exercise of the

discretion?

MR PORTER:  Yes, I hope to be able to demonstrate that the

judgments were divergent in their approaches to the
questions of the application for leave as distinct

from the appeal and that although His Honour cited from this judgment it is not clear in what context His Honour was addressing his remarks.

Everett	3/6/94
BRENNAN J:	He accepts the authority of that as applicable

to the exercise of the discretion, does he not?

MR PORTER: That is a matter of debate, Your Honour, and I

will be submitting that in the context of his

judgment it would appear clear that he has

overlooked the question of leave and gone straight

to the question of the appeal.	I certainly will
return to that.	I do not stay with that authority

any further other than to refer the Court to the

bottom of page 329 at which Justice Murphy

described an Attorney-General's appeal against

sentence as an:

extraordinary remedy, intended to be invoked

only rarely -

et cetera. That passage continues over on to the

next page.

As I said, Your Honours, earlier, this

question was touched on - before I leave that, of
course, Griffith's case dealt with what was the
meaning of "a sentence" in the terms of the
relevant sentencing statutes, that those comments

were obiter in relation to the point of the case. In Malvaso, 168 CLR 227, the question of leave

was mentioned. It is the joint judgment of would draw this Court's attention, and the particular passages commence at 234 where

Your Honours have referred to that passage of

Chief Justice Barwick's, which I have just outlined

and added to it, or at least expanded it by stating

it should include:

express reference to the need to avoid the

kind of manifest disparity or inconsistency in

sentencing standards -

More particularly, Your Honours went on to say that

that principle, so expanded:

is of particular importance in a case such as

the present where an appeal by the Attorney-

General against sentence lies only pursuant to

a grant of leave.

It so does in Tasmania and South Australia. Over

on the next page, page 235 starting from 234, a

court:

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

Everett 4 3/6/94

particular case within the rare category in

which a grant of leave to the Attorney-General

to appeal against sentence is justified.

Now, that probably brings me back to the point Your Honour Justice Brennan raised with me as to Mr Justice Cox's judgment and I will be submitting that the court_in this case did not give careful

and distinct consideration to the question of an

application for leave, as distinct from the appeal

itself.

Finally, in relation to the Malvaso case, at

pages 240 and 241, Your Honours Justices Deane and
McHugh made reference to some factors which

Your Honours thought may militate against the grant

of leave, and it is the second paragraph on

page 240. There are two factors set out in that
paragraph; more particularly on 241 about the

seventh line down:

As has been seen, and quite apart from the

fact that almost a year has now elapsed since

the sentence was imposed by the sentencing

judge, there is a very real question about

whether a grant to the Attorney-General of leave to appeal against sentence •.•.. would

have been justified.

That issue of delay becomes relevant in this case.

Now, as I said, the statements of principle in both

those cases are obiter. This appeal, I submit,
raises the question of what grounds a grant of

leave and what factors would militate against the

grant of leave to the Attorney-General to appeal
against sentence.

What has come to be known as the residual

discretion to dismiss an appeal for considerations
of double jeopardy - and I would refer to the

judgment of Chief Justice Street in Holder's case,

and the judgment of a Full Court of the

Federal Court in Tait's case, the references to

which are at the bottom of page 1 and on the top of
page 2, deal with such matters.

Now, those factors arise when error has been demonstrated and there then, it is clear, arises a

discretion to dismiss the appeal for reasons of

unfairness or injustice. I submit that such

factors, where there is a requirement for leave,
are factors to be taken into account in the

application for leave.

In the Tasmanian case of Dowie,

(1989) Tas R 167, to which reference is made there,

there was some debate about that. If I could take

Everett 3/6/94

Your Honours to page 180. It is about half the way down the page, where His Honour says:

Should there arise on a Crown appeal against

sentence a real prospect of unfairness or

injustice by allowing an appeal from a

sentence imposed as a result of an erroneous

exercise -

et cetera, and he says:

and the appeal dismissed.

Whereas His Honour Mr Justice Wright, when dealing

with the same issue at page 183, about two-thirds

of the way down, said:

There are no doubt cases in which the

Crown, whilst able to demonstrate manifest

inadequacy in a sentence will be held

disentitled to succeed on an application for

leave to appeal -

So His Honour Mr Justice Underwood seemed to make

reference to questions of unfairness or injustice in the context of the appeal, whereas

Mr Justice Wright speaks in terms of the application for leave to appeal.

Now, His Honour Mr Justice Zeeman in a case before this Court, interpreted

Mr Justice Underwood's comments as relating to the application for leave to appeal, which led him to take the course he did. It is my submission that in jurisdictions that require the grant of leave,

that the requirement must be given some meaningful

content, that is, given the context in which it

appears, that is to say, on an application for

leave to appeal by the Crown against sentence, it

should not be seen merely as a control measure, or

mere screening device to dispose of obviously

frivolous or unmeritorious appeals, but in the

context in which it appears it must be given a

meaningful content, and so much, I would submit, is

borne out, with respect, by the comments of

Your Honours Justices Deane and McHugh in Malvaso,

to which I have referred.

The state of the law, in my submission, is

unsatisfactory in Tasmania and South Australia.	I
have already referred to the problem in Dowie's
case. Upon the return of the Malvaso case to the
Court of Criminal Appeal of South Australia, there
was still no unanimity about this, and I have on

the list of authorities, the unreported judgment of

the Court of Criminal Appeal, dated

12 February 1990.

Everett 3/6/94

At page 2 of the report, Chief Justice King

refers to three questions which fall for

consideration in relation to the grant of leave.

He says:

The first is whether it is reasonably arguable that the sentence ..... is manifestly

inadequate. If that question is answered in

the affirmative -

then he goes on to apply, apparently, the

statements in Griffiths and Malvaso, to which I

have made reference. Then he says, if you answer

that in the affirmative, you go to factors which

may militate against the grant of leave, and he

deals with that question at the top of page 4.	But
the point of my reference to this authority,

Your Honours, is that, notwithstanding the observations by this Court in Malvaso, there was no

unanimity of approach by that court on that case as

returned to it. And, if you have regard to

Mr Justice Cox' judgment at pages 6 and 7, he

simply refers briefly to what had gone before and

dealt with it accordingly, without dealing with the

also is raised, perhaps by this appeal,

factors to be taken into account, and which

towards the bottom:

The question whether the approach

identified in that passage from the judgment

of Deane and McHugh JJ -

that is the passage to which I have already made

reference -

reflects a more restricted view of the scope

of Crown appeals •..•. was not argued before

us -

What he simply does then is to say he is guided by

those comments, and that the matter is not

determined.

BRENNAN J:  How can that be expressed by this Court? What

is your submission in relation to that?

MR PORTER:  My submission is that the Attorney-General bears

the onus of establishing that the case is of such a

rare category to bring it into the type of case as

referred to in Malvaso. So there is an onus on the

Attorney-General to establish that it is of such a

rare type of case.

BRENNAN J: Does that add anything to wh~t has already been

said in this Court?

Everett	3/6/94
MR PORTER:	If I might go back to Malvaso because I think

that may answer Your Honour's question. Certainly,

so much as what I have said in answer to Your

Honour's question has already been said, but there

are a number of important questions which are left

open in my submission and which this appeal raises.

At the bottom of page 234:

The 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 -

et cetera. Their Honours referred to whether the

circumstances warrant the grant to the prosecution

of leave to appeal. Now there may be other

circumstances which arise and in respect of which

the Attorney-General may have the onus of

establishing.

BRENNAN J:  My question to you is really designed to see

what would be the result of granting special leave

in this case in terms of an enunciation of

principle and I can understand you saying that this

was a case where the principles were not correctly

applied, but are you contending for any new

development of principle?

MR PORTER:  Perhaps not so far as that point is concerned,

but I am contending that when one takes it further

as to what factors militate against a grant of

leave, that has not been authoritatively addressed

and I put this first limb of my submission on the

basis that those comments, with the greatest of

respect of course, came from a dissenting judgment
in the case and dealt with a slightly different

issue.

GAUDRON J: It was not a dissenting judgment, was it?

MR PORTER: It was, Your Honour, yes. In fact,

Their Honours wanted to go on and deal with the question of the grant of leave and the majority

disagreed with that.	It may be a question of its
status in the overall scheme of things.	I would

urge that this Court endorse it as a proper

statement of principle applying to all applications

for leave to appeal. That is the first limb. The

second limb and perhaps more importantly as far as

this appeal is concerned, is the question of what

factors militate against a grant of leave.

As I have attempted to demonstrate, there is

what is called the residual discretion to dismiss

an appeal which arises after manifest error has

been demonstrated. I submit that to give the

Everett 3/6/94

concept of leave proper meaning, such factors as

are relevant to the exercise of the residual

discretion must be taken as matters which would

militate against the grant of leave as again

alluded to in the judgment in Malvaso to which I have made reference.

That, as I say, is particularly important in

this case because there are divergent approaches by

Their Honours in this case to factors which would

militate against leave. Those factors are two.

There is, firstly, the question of the delay and

the resultant unfairness on re-imprisoning the

applicants after six months - I think the summary

says seven months, my mathematics must have been

astray, but it was approximately six months -

effectively, a good behaviour provision, having	during which time they were the subject of,
served the term of imprisonment, which His Honour
had imposed and during which time they had not
breached those good behaviour conditions. That is
the first question.

The second question is the question of the way

in which the Crown conducted itself in the

presentation of its case. My submission is that

those two factors, which are clearly recognized by

the authorities as properly grounding an exercise
of the discretion to dismiss an appeal,

notwithstanding error, are factors which should

militate against the grant of leave. The principle
is just that, as to whether such factors, where

there is a requirement for leave, are to be

factored into that examination or remain for the

appeal itself. As I say, that arises from the

references to such factors in the judgment in

Malvaso to which I have made reference.

The judgment in this case is such that error,

I would submit, can be demonstrated on the part of

and I am essentially going to part III of my	the majority in several ways. In the first place,
written submissions, it is submitted that there was
no proper separate and discrete consideration given
to the question of leave as distinct from the
appeal itself and no apparent - and I say
"apparent" deliberately - attempt to make that
consideration and to deal with it accordingly.

If I can take Your Honours to page 62 of the

application book, which is the passage from
Mr Justice Cox's judgment to which Your Honour
Justice Brennan was making reference earlier,

His Honour at the start of the first paragraph poses a compendious question which has three

distinct parts to it, in my submission. Whilst we

are on that passage, the next sentence:

Everett 3/6/94

With regret I think it is appropriate to do so

in each case -

and he goes on, is the only reference His Honour

makes to the question of the unfairness of

returning the applicants to prison in the context

of their good character and prospects of

rehabilitation. That is the only comment he makes,

and I will come back to that, but it is far from

clear in relation to what aspect of the proceedings

before the court he was dealing with that issue.

But in any event, His Honour goes on to cite from

present sentence was such to call for the	Griffiths and .Malvaso and then simply says that the
interference of this Court.

In so far as His Honour's judgment is

concerned, I recognize there is some difficulty as

far as the applicants are concerned. His Honour

clearly has referred to the authorities but, in my

submission, firstly, it is not clear in what

context His Honour is dealing with it; and
secondly, we would argue on the appeal that that

was not a proper finding in any event. But the

other member of the majority, Mr Justice Crawford,

clearly, in my submission, and with respect, has

not directed his mind to the issue of the

application for leave.

If I could take Your Honours to page 70 of the book where His Honour at page 69, having dealt .with

the approach of the sentencing judge and dealing

with some authorities about young offenders and the

crime itself, simply says in the first part of the
second paragraph:

I respectfully conclude that the sentences imposed were manifestly inadequate.

GAUDRON J: Is there not some difficulty about that? I

mean, even that conclusion it was a small - a

matter of some months at the end of the day.

MR PORTER: Yes, there was that aspect about it,

Your Honour, about which I perhaps do not need to

comment any further, but there was certainly that

aspect about it.	My point, as to His Honour
Mr Justice Crawford's judgment, is that it is	clear, in my submission, that he has not carried
out the careful discrete consideration required, or
at least I would submit required, but alluded to in .Malvaso in relation to whether it is so manifestly
inadequate or in such a rare class that a grant of leave was warranted. His Honour simply failed to address that issue at all, with respect.

Everett 10 3/6/94

DEANE J:  He addressed it at page 70 in the second-last

paragraph. The answer which he gave to - or the
reasons for his conclusion are not all that

apparent, but His Honour did address the issue.

MR PORTER:  I see the passage to which Your Honour is

referring, but one has to, with respect, look at

the whole context of his judgment and it is not,

with respect to His Honour, clear how it develops

because by the time he gets to that stage he has

already determined, it would appear, the
application for leave and the appeal reimposed or

quashed the sentence, imposed sentence, and then

goes on to deal with the question of fairness which

was raised, and it was in that context which

His Honour - - -

DEANE J: But what His Honour seems to be saying is that you

look at the substance of the appeal and, then, on

the question of whether leave should be granted,

you treat the fact that it is a Crown appeal as

being relevant only if you can identify some

unfairness which would result from the grant of

leave. ·

MR PORTER: Yes, I understand Your Honour's point.

DEANE J: Which, of course, is a very different approach to

the approach that Justice McHugh and I adopted in

Malvaso and that Chief Justice Barwick adopted.

MR PORTER:  I was actually going to answer Your Honour's

question by saying precisely that. It is a

different approach and it is not one which is in

accordance with the observations that have fallen

from this Court, and it is not one, with respect,

which ought to be endorsed. Of course, what

His Honour does, at page 71, is simply deal with

the question of fairness - I may be getting ahead

of myself a little here but, he says, because it is

as saying it falls within the category of the case	inadequate to the point of error, which, to interrupt myself, is not necessarily the same thing
to which Your Honours Justices Deane and McHugh
were referring in Malvaso. It is not the same
thing, but he says, if it is inadequate then it
really does not seem to matter much that there may
be unfairness arising from it.

so, in so far as that aspect is concerned, it

is simply far from clear as to whether the proper

approach was taken by either of the majority

judges. It would seem less clear in the case of

Mr Justice Crawford's judgment, in that, apart from

that passage at the bottom of 70 he does not appear

to address the issue at all and, when he does so,

it is in a different context.

Everett 11 3/6/94

The matters which I have set out at the top of

page 5, and they are the matters in respect of

which the residual discretion to dismiss an appeal

upon which that discretion is often exercised, they

are the questions of unfairness as a result of

delay and I would refer Your Honours to the case of

Tait and that passage which has been identified in

many judgments and I do not stay to read it to

Your Honours but it appears at page 389 of 46 FLR.

That relates to the question of Crown conduct. That has been applied in several cases to which I

make reference in paragraph (d) on that page. The

other relevant authority to which I have made

reference in that paragraph is the case of Holder,

(1983) 3 NSWLR 245 and the judgment, as I mentioned

earlier of Chief Justice Street, at the bottom of

255, over on to 256 and the whole of that passage

to which I would seek to draw the Court's attention

without staying to read it to Your Honours.
That discretion to dismiss an appeal,

notwithstanding the detection of error, is a
well-entrenched principle and has been applied in

the cases of Maddocks and Smallacombe to which I

make reference in the written submission - both are unreported - which Your Honours have, and they both

related to crimes of armed robbery. I also make

reference there to the article by Fiori Rinaldi

which sets out a number of aspects of unfairness

which come into play with the exercise of this

discretion.

My submission in the context of the appeal is that Their Honours in the majority were in error as

a matter of principle in that there was a

requirement, as a matter of principle, to look at
the question of unfairness because of the delay,

coupled with their excellent prospects of

rehabilitation, thus giving rise to community

interests as well. They were required to take that

into account and did not.

I have already pointed to the passage from

Mr Justice Cox's judgment where he simply passes

over it by saying that he finds the sentence

inadequate and it is regrettable that they have to

be returned to prison. But does not, in my

submission, deal with it as an issue which, as a

matter of principle, I would submit, he was

required, with respect, to do so. I have already

pointed to the passage in Mr Justice Crawford's

inadequate to the point of error then justice was	judgment where he said if the sentences were
not done and the situation should be put right.

That, apparently, with respect, was his answer

to the question of fairness which was raised.	I
say to Your Honours that both judgments of the

Everett 12 3/6/94

majority were in error as a matter of principle,

the principle being that that factor was a factor

which should have been taken into account in

relation to the application for leave as factors

militating against leave and those factors were not

so taken into account.

BRENNAN J: What do you say about Justice Zeernan's judgment?

MR PORTER:  I would have to say I think it is right,

Your Honour, except in one small respect but that

perhaps does not raise itself.

BRENNAN J: That might not be entirely in your favour if it

is. It is not just to 386(13).

MR PORTER:	No, that was the part to which I was taking exception, I think, Your Honour. At least so far
as the issue presently under discussion, I would submit that His Honour's approach was correct. At the top of page 76 His Honour said that:

The question of leave must be considered

as a distinct matter.

And then he deals with the question of Crown

conduct and unfairness which he says, taken

together, are such that leave should not be

granted. His Honour, of course, does make the

comment -

BRENNAN J: That was the problem I would like to have you

address because at the bottom of page 77 His Honour
discounts the single factor of returning the

appellants to prison but he adds "the failure of

the Crown to make submissions" and that is

something which he had referred to in the previous

paragraph and the question is what is the effect of

the special provision that you have in Tasmania on

applications by the Crown to take leave?

MR PORTER:  I was coming to that as a separate issue because

it does arise as a discrete issue because of that

peculiarity but in so far as His Honour's judgment

is concerned, I would submit that the factor of

delay - it is more the question of the

rehabilitation of the offenders and coupled with

the delay would of itself have been enough and I

would submit that His Honour was correct in

relation to the application of section 386(13).

BRENNAN J:  You see, the view taken by Justice Crawford was

that 386(13) had an affect on the leave

application, was it not?

MR PORTER:  I think he said it may in some cases, but not

usually.

Everett	13	3/6/94
BRENNAN J: At page 71 - - -

MR PORTER:  Yes:

should not usually be taken into account

against the Crown •.... However, I would not go

so far as to say that it may never be taken

into account -

which leaves the position, with the greatest of

respect, in somewhat of an unhappy position.

Mr Justice Cox seems simply to have assumed

that it could be taken into account against the

Crown because he deals with that issue without making any reference to it at all.

BRENNAN J: Is not the question this: if the special

provision in Tasmania says that on an appeal the

failure of the Crown to address this issue is not

to be regarded by the Court of Criminal Appeal?

What is the significance of that provision when the

Crown is applying for leave?

MR PORTER:  My submission is that the failure by the Crown

can still be taken into account in relation to

leave.

BRENNAN J: Even though if leave is given it cannot be?

MR PORTER: Yes, and I would submit that that is in

accordance with the principle that I am advancing

here, and follows from the sources from which I

derive that principle which I have been advancing.

I do not see that there is any contradiction which

arises as a result of that position, and it is

clear that the legislature has directed its mind to

the appeal, notwithstanding that section 402 deals

with applications for leave.

It has clearly directed its mind simply to an

appeal and it is a matter, I would submit, that can

be taken into account as a matter - and should if

it arises - be taken into account in relation to
the exercise of the discretion not to grant leave,
and in that respect His Honour Mr Justice Zeeman is

correct.

As I said, Mr Justice Cox simply seems to

assume that that is the position, and I think I was

taking Your Honour to page 62 where he starts to

deal with that and says that it is not a factor of

such weight in the circumstances to have any effect

effect but does so, in my submission, on an error

in principle in that he has misapplied the

principle which is apparent from Wilton's case.

Everett 14 3/6/94

If I could take Your Honours to Wilton's case,

28 SASR 362, and the particular passage appears at

page 368. That is the one that is, of course, set

out. The principle is clear and His Honour, in my
respectful submission, was in error in

distinguishing it in the way he did in this case

because he seems to say that it does not apply

because His Honour in that case was dealing with a

slightly different legislative scheme. But the

principle is clear; the principle has been applied

in Jennyn's case to which reference is made in

paragraph (d) of the written submissions, and

Economedes, again to which reference is also made, and it has been _applied in both of those cases

against the Crown where the Crown has been
specifically asked if they had anything to say as
to a particular course, mostly, of course,

non-custodial options, and failed to protest at

such a course.

DEANE J:  In this case the Crown said nothing in relation to

sentence. Is that right?

MR PORTER:  Yes, Your Honour. I did not want to take the

Court through the entirety of the passages because

there are some in number, but - - -

DEANE J:	No, I was not clear whether the Crown had failed to say anything about suspension as distinct from
saying nothing at all about sentence.
MR PORTER:	I am trying to give Your Honour an accurate

summary. The sentencing judge made it clear on at

least two occasions that he was contemplating

suspension - - -

DEANE J: Yes, I follow all that, but the position is that

the Crown said nothing at all on the subject of

sentence?

MR PORTER: 

Except that they addressed His Honour about

whether His Honour had an option of a term of
imprisonment which was suspended in addition to

community service orders.

DEANE J: Then they did address on sentence.

MR PORTER:  Yes, there was that address, at least, and the

other aspect of it is, Your Honour, where

His Honour asked for assistance as to a comparable

matter. That is set out in paragraph (c) on page 3 of the written submissions, and it is page 8 of the

book, Your Honour. And His Honour said, "Can Crown

counsel help me about a comparable problem?"

DEANE J:  I am just trying to follow, your approach. Do you

say that in a case where the Crown does address

Everett 15 3/6/94

against sentence, subsection (13) prevents the

Court from taking account of matters that the Crown

let go by silence, notwithstanding that it was

addressing? I am not suggesting you should not say

that. It seems to be implicit in the approach you

are adopting.

MR PORTER:	That is not a proposition I would shy away from, Your Honour, because the problem is where an option
is being considered and canvassed openly and the
Crown remains silent about that particular option
in respect of which it later complains.

DEANE J: But, it is a different position, is it not, if the

Crown just sits there and does not exercise its	right? One can follow what subsection (13) is
saying but if the Crown is on its feet addressing about sentence it is not quite so easy to see why
the fact that the Crown let something go by
silence, attract subsection (13).

MR PORTER:  I think the answer may be, Your Honour, that it

may very well be in this case that the Crown did

not address within the meaning of the section.

DEANE J: Well, that what I was asking you about.

MR PORTER: 

Because all that happened was, there was the

request for information and the information set out
in paragraph (d), and the only other matter that
occurred was the question of the community order.

So, in terms of subsections (11), (12) and (13),

read as an entirety, it would appear that they may
well have not addressed on a sentence within the

meaning of the section.

BRENNAN CJ: we can continue this debate at 2.15.

MR PORTER:	Thank you, Your Honour.
AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2,16 PM

BRENNAN J: Yes, Mr Porter.

MR PORTER:  Yes, thank you, Your Honour. If the Court

pleases, I am grateful for the Court's indulgence

as to time thus far and I should, hopefully, be

able to conclude shortly. Having said that, if I

might recap briefly on one point dealing with the

Everett 16 3/6/94

question of unfairness arising from rehabilitation
prospects and delay, and I had intended, but

omitted, to draw the Court's attention to a passage

from an unreported judgment of the appeal division,

Court of Criminal Appeal of Victoria, name of Reg v

Smallacombe and Another which was delivered on

28 October 1993. It is a case not dissimilar on

its facts in terms of the circumstances of the

offence. The offence was similar. The
circumstances of the offender were similar although

there were in fact two offences rather than the

one, and if I could draw Your Honour's attention to

page 6 where Their Honours, having dealt with the

respondent's position go on to speak of that

situation being a very significant factor, that he

had served a term of imprisonment and similarly
that he was still the subject of a good behaviour

bond as are the applicants here. It is the last

passage on the bottom of that page to which I wish

to draw particular attention, where Their Honours

have drawn from Your Honours Justices Deane and

McHugh in Malvaso. So the principle I advance is

that such a factor is required to be taken into

account in an application for leave and it was not
so taken into account in the majority judgment.

Just before the luncheon break I was dealing with the question of the Crown conduct and we got

into the debate about section 386(13), and I think

it may be fair to advance two propositions which

relate to that particular subsection which may

arise from the factual scenario which unfolded

before His Honour. In brief summary, as will be

recalled, the Crown drew His Honour's attention to

the case of Toland assisted in the calculation of
the days Everett had spent in custody when

His Honour was speaking of a suspended term but

backdated, and advised His Honour as to the availability of community service orders in

addition to imposing a term of imprisonment.

If it be the case that what the Crown did was

an exercise of the right pursuant to

section 386(11), then (13) of course, does not

arise because it cannot then be said to have been a

failure to address.

So that in that event the Crown is caught with

the principle in Wilton, as applied in Jermyn and

Economedes, as I indicated this morning - the

references to which I gave Your Honours this

morning. In that event, I submit that the majority	in this case erred in principle. Certainly, in the
case of Mr Justice Cox, in my submission, has
misapplied the principle evident from Wilton and
Mr Justice Crawford has gone about it in a totally
different way.

Everett 17 3/6/94

Secondly, if it be the case that what

transpired and was not an exercise of the right

pursuant to subsection (11) then it would seem that

subsection (13) would prevent that operating

against the Crown in an appeal but none the less, I

would submit, still would militate against the

Crown in relation to an application for leave to

appeal and, as noted this morning, Mr Justice Cox

seems to adopt that but as I say wrongfully, in my

respectful submission, applies Wilton and

Mr Justice Crawford ends up in a somewhat peculiar

position when he says, "It can be but not usually".

If I can then summarize the applicants' case,

Your Honours. The special leave point, in simple

terms, is the need for an authoritative

pronouncement of the principles applicable to the

discretion to grant leave in the context of a Crown
appeal against sentence, given the comments of many

judges and many distinguished judges in superior

courts throughout Australia as to Crown appeals

against sentence.

That authoritative pronouncement is, in my

respectful submission, required by this Court

because of the status of the observations already

made by this Court and the lack of authoritative

pronouncements in both Tasmania and in

South Australia. The two particular cases, that of

Malvaso, upon its return to the Court of Appeal in South Australia - the unreported judgment of which

you have - and this case, evidence of such a lack of authoritative pronouncement, and they are also evident of such divergent approaches that

authoritative statements are required.

There is in my submission sufficient doubt

attending the majority judgment and the way in
which has been reached to warrant special leave and

in the context of the appeal, I would submit that

the applicants have demonstrated errors in

principle in the exercise of the discretion to

grant leave or miscarriages in the exercise of that

discretion as to unfairness arising both from

prospects of rehabilitation and delay in Crown

conduct.

In any event, if the point does not arise as

to the application for leave, I submit that there

has been made out sufficient error in the appeal in

terms of what is required to be made out by the

Crown and in terms of matters relevant to the residual discretion to dismiss an appeal, to

warrant the intervention of this Court. And they

are my submissions, if the Court pleases.

BRENNAN J: Thank you. Yes, Mr Bugg.

Everett(2) 18 3/6/94

MR BUGG:  Your Honours, the application for special

leave is opposed and I suppose without wishing to

appear flippant, one feels somewhat in double

jeopardy appearing before five Justices of this

Court on a special leave application. But the

position as far as the respondent is concerned is

that the appeal to the Court of Criminal Appeal in

Tasmania or the application for leave to appeal was made to establish an issue of principle which, it

was suggested to that court, was manifest from the

matters in the following way. learned sentencing judge's disposition of these

The crimes of aggravated armed robbery and the

frequency with which they had been committed,

particularly in this area were matters of

considerable concern. There is material within the

application book which indicates that four

robberies occurred in the township or near the

township of Burnie on the north-west coast of

Tasmania in a very short period of time.

There was some linkage between this particular

robbery and one of the others, and that is, one of

the persons who supplied the gun for the commission

of this robbery was, in fact, involved in one of
the other robberies, but the other two were
unrelated. In addition, the question of an
appropriate tariff for the commission of crimes of

this nature was a subject of consideration by the

Court of Criminal Appeal in Tasmania at about that

time. In the judgment of Justice Cox Your Honours

will see that he refers to two cases: that ,of

Devine and also McFarlane. The decision in Devine

was handed down by the Court of Criminal Appeal of

which this sentencing judge was a member in late August 1993. Devine was appealing a sentence of

eight years imprisonment for the crime of armed

robbery. Devine was distinguishable obviously

because he was a mature person; he had prior

convictions and his appeal against sentence on

grounds of excessiveness was unsuccessful.

GAUDRON J: One would have thought if the tariff, as you

call it, was being established as a matter of

principle, that too was a reason against the grant
of leave in this case if it was being determined

elsewhere.

MR BUGG:  Your Honour, if I could just conclude, the case of

McFarlane, when one considers the reasons advanced

by the Crown for this application for leave, the

McFarlane matter was actually litigated before the

Court of Criminal Appeal in the October term. I do

not know whether Your Honours are familiar with the

sitting arrangements or the calendar of the Supreme

Court and the Appeal Court in Tasmania, but there

Everett 19 3/6/94

are eight approximately one month sittings

throughout the year in Tasmania. The court

adjourns and convenes appeal courts for fortnightly

terms at the end of the first, third, fifth and

seventh sitting, and between the fourth and fifth

sittings there is a two week mid-winter vacation. In the October term, that is, at about the

time the two applicants were sentenced by

His Honour Mr Justice Slicer, the Court of Criminal

Appeal was about to embark upon the McFarlane Crown

appeal which was an application for leave to appeal

a sentence of six years which had been imposed by

His Honour the Chief Justice. That application was

granted, the appeal was successful and the sentence

on McFarlane increased to eight years, that

decision being handed down in mid-December after

this application for leave had been lodged, and
this application could obviously not be adjudicated

upon because there were no more appeal terms in

1993, the first appeal term being in March

immediately preceding this Court's attendance at

Hobart in mid-March.

So that the background of the movement of this

matter towards the Court of Criminal Appeal on an

application for leave was that the Court of

Criminal Appeal had considered a defence

application for leave to appeal a sentence, and

that was the matter of Devine referred to by

Justice Cox. This sentencing judge was a member of

that court, and the joint judgment of the court

referred to the statistical proof of the increasing

number of armed holdups in Tasmania, and

acknowledged the reasoned public concern at that

increase and the need to impose deterrent sentences

as a response from the courts to that public

concern.

Then you have the Crown appeal in McFarlane

dealt with in the last appeal term of the year and
the decision handed down in mid-December.	So that

at the time this application was lodged the issue

of tariff, Justice Gaudron, was obviously under

consideration. It had been resolved and

acknowledged by the Court of Criminal Appeal in the

McFarlane matter by the time the Court of Criminal

Appeal came to consider this matter.

The issue of principle was, therefore, did the

gravity of the crime committed by the applicants

and the expressions of concern as to the

seriousness of the crime, and the attitude which

rehabilitation, youthfulness, character and other

should be adopted by the sentencing courts in

matters which, obviously, the learned sentencing

Everett 20 3/6/94

judge took into account and gave, in fact, greater

emphasis to in the exercise of his sentencing

discretion.

GAUDRON J:	I do not understand that really to be a matter of principle, is it? I would have thought the way
you put it it is a balancing exercise.

MR BUGG: Yes, it is a balancing exercise but I suppose,

really, the principle is one where the interests of

a youthful offender with good prospects of

rehabilitation are paramount to a point where - - -

GAUDRON J: That was not the principle that the Crown was

seeking to establish.

MR BUGG:  No, it is to a point where - I have not finished

yet, Your Honour - the seriousness of the crime

calls for a deterrent response in a general sense

from the sentencing court and it was in that area

that the Crown suggested, in its application for

leave, that the learned sentencing judge had fallen

into error and that was an error of principle and

it was a matter which fitted within the unusual circumstances with which Crown applications for leave in Tasmania have been circumscribed.

BRENNAN J:  We do not seem to have a copy of the application

by the Crown for leave to appeal in the application

book. Do you have a copy of it?

MR BUGG:  Yes, I do, Your Honour. It is not in the

application book because, of course, this was an

application for special leave and the book was

fairly narrowly confined but Justice Crawford, I

believe, in his judgment articulates the grounds -

if I may just refer back to them - on page 68, at

the foot of page 4 of his judgment. The grounds

are identical. So ground 1 attacked the question

of lack of emphasis to the issue of general

deterrence, the lack of appropriate emphasis; and

then ground 2 was, one might say, the general

rolled-up ground that the Crown seems to be saddled

with and sometimes cannot sustain the onus that is

upon it on applications for leave.

In responding to the application for leave, it

is our submission that the courts in Tasmania have

consistently applied the principles which have

evolved from House and Cranssen to Tait and

Bartley, and that is where, some many years ago,

Crown appeals and defence appeals were almost

treated in the same terms but there has been,

obviously, a greater concern about the availability

of the right to appeal or to seek leave to appeal

in Tasmania.

Everett 21 3/5/94

Those expressions of concern appear in all the

jurisdictions and, obviously, have found

publication from this Court in decisions such as

Griffiths and Malvaso and so on. We do not

suggest, and we would respond by saying, that our

court recognizes and has applied those principles

and that can be seen from the analysis made by

His Honour Justice Underwood in the Dowie decision

to which Your Honours have been referred.

The issue, I suppose, in terms of the matter of general importance and the need for this Court

to pronounce some guidelines for sentencing courts

and for that matter, appellate courts, in

considering matters of this nature, is, in my

submission, unnecessary because we are dealing with

the appellate review of a sentencing discretion.

The grant of leave is an exercise of the discretion

and obviously the upholding of a successful appeal

is also the exercise of a discretion.

The question, with respect, seems to me to be

this, that the applicants complain of a need for

definition of principles as a matter of general

importance to the administration of criminal

justice in this country. Our response to that is

there is no call for that manifesting itself from

the decision of the Court of Criminal Appeal in

Tasmania. There is certainly no call for it from

an analysis of the appellate decisions of the

various jurisdictions in Australia and it would be

inappropriate, we submit, to attempt to define or

circumscribe the circumstances in which a

successful application for leave should be granted,

and the circumstances which would militate against

such a successful grant of leave.

In so far as the issue itself is concerned, and that is any matter of principle arising from

the decision of the Court of Criminal Appeal, I

find myself in one area of difficulty and I think I

should deal with that first of all. That is

section 386 of the Criminal Code which was amended
in 1987 by the inclusion of subsections (11) (12)

and (13). I do not know if Your Honours all have

those amendments but certainly they were addressed

prior to the luncheon adjournment.

Standing before this Court, I can say that I was opposed to these amendments. I was Director of

Public Prosecutions in Tasmania when they were introduced into the Parliament and the reason for

my opposition was that it seemed to me that the

Criminal Code catered for presentation of material to the court by the Crown relev~nt to the exercise

of the sentencing discretion under section 386(7)

and that the recognition of some statutory right to

Everett 22 3/6/94

address on penalty may give rise to confusion and

certainly an estoppel argument. Of course, my

criticism of subsection (11) then gave rise to the

inclusion of subsection (13).

I have some personal difficulty in relying

upon section 386(13), and I am addressing the
questions that Your Honour Justice Deane addressed

to my learned friend when he was dealing with this matter before the luncheon adjournment, because it was not a matter that was argued before the

Court of Criminal Appeal, that is, the availability
of section 386(13) in any substantive way and it

was certainly not a matter that the Crown sought to

rely on before the Court of Criminal Appeal as,

shall we say, an overrider to an estoppel argument in relation to a failure to exercise a right under section 386(11).

I would find it difficult to submit otherwise than this: that section 386(11) provides the Crown with a right to address the court without

invitation should it so wish to do1 that should the

Crown choose not to so address the court, and there

being no other involvement of the Crown either by

invitation or by necessary inference from the

proceedings which have preceded the sentence, then

section 386(13) should be an answer, should that

issue be raised on an application for leave. But I

would not regard the position which transpired at

this sentencing hearing as being a matter that came

within section 386(11) but rather under section

386(7). In other words, the judge was informing

himself the Crown was not exercising a right

without invitation. That may clarify Your Honour

Justice Deane's position.

It would be inappropriate to rely upon

section 386(13) if this Court reaches a stage in

considering either the issue of special leave or the issue of the merits of the appeal itself.

GAUDRON J: Subsection (7) seems to be directed to things

like pre-sentence reports.

MR BUGG:  Yea, it does, Your Honour, but I must say that I

had always argued, albeit unsuccessfully,

subsection (ll)'s testimony to that, that the Crown

could still address the court should it see that

there was some material which should be raised

before the court. There was a difference of view

about that and I lost and subsection (11) was

inserted, and my reservations about it were covered

by subsection (13).

Everett 23 3/6/94

There has not been a consideration of this

statutory material other than that which is

contained within the judgments of the Court of

Criminal Appeal in this matter. I am certainly

unaware of it, and I guess my office has been

involved in all the matters involving that section

since it has been in the Code. But I would not

seek to rely on it - - -

BRENNAN J: The fact is that you are not raising any

question of the correctness of the view of

Justice Crawford as to the operation of section 386(13) in this case.

MR BUGG:  Yes.

Unfortunately what you get from Tasmania, and you see that from Justice Underwood's judgment	in Dowie, as interpreted by Justice Zeeman, and I
would certainly support, with respect, that interpretation, that we tend to speak of applications for leave to appeal against sentence in the same terms as appeals against sentence. It
comes, I suppose, from the fact that, in Tasmania,
the practice under our Criminal-code Rules, is that an application for leave to appeal a sentence,
either by the defence or the Crown, is based on grounds which ultimately, if leave is granted, form
the grounds of the appeal, and I have included in a
small manila folder copies of the rules for
Your Honours, but I included the full text of the appropriate rule in the outline of submissions,
which was submitted in this matter. But there are
about four pages of rules there, and I do not ask
that they be presented to Your Honours, but I merely refer, for the purposes of later reference
should it be necessary, to the rule under the heading of "Leave to Appeal", which says:

Where the Court of Appeal has granted leave to appeal, the notice of application for

such leave shall be deemed to be notice of

appeal, and no further notice shall be

required.

So that I would concede the correctness of

Justice Zeeman's interpretation of
Justice Underwood's comments, to which obviously

Justice Deane also drew attention this morning, and

they are contained in the judgment of

Justice Crawford on page 70, and that particular

passage is later referred to by Justice Zeeman -

that is towards the foot of the page, at about

line 36 - and it is later His Honour

Justice Zeeman, in his judgment says, "I take him

to be there referring to an application for leave."

Everett 24 3/6/94

What you see happening in the judgment of

Justice Underwood: he starts out talking about the principles applicable to a Crown application for

leave to appeal against a sentence; he then deals with former judges of our court, such as the late

Sir Peter Crisp and the late Justice Neasey, who,

particularly Justice Neasey in Percy's case, is

cle~rly talking about an application for leave to

appeal, but he talks about an appeal against

sentence by the Crown; and the late

Justice Chambers in the same section of

Crown appeals against ~entence. Justice Underwood's judgment is also talking about

It is the unfortunate, I suppose, habit that

we have slipped into because when considering the

grounds of an application for leave, in reality,

what the Court of Criminal Appeal is examining is

not a ground that says. "Leave should be granted

because of A, Band C", and establish special leave

factors, such as are necessary in this
jurisdiction, but all that is contained is, in

fact, an application for leave to appeal, the

grounds of which ultimately are transposed, should

leave be granted, into the grounds of appeal. So

that, some of the, with respect, untidiness of

expression that you will find in the judgments has	a lot to do with the Criminal Code Rules, and the
habit that we all have of moving in that way.

For instance, it is suggested that His Honour

Justice Crawford grants leave and deals with the

matter by the end of page 6 of his judgment, that

is, page 70 of the application book, but then moves

on to consider the residual discretion matters on

page 7. But in fact he does not, because if you
look at page 7 on line 5:

The Director said that he acknowledged that as a difficulty and a hurdle for the success of

the applications.

He then reviews his rejection of that particular
factor as being a hurdle for the applications, not
for the appeal. So that he is still considering
the application and explaining why these matters of
unfairness or injustice should not militate against

the grant of leave, and did not militate against

the grant of leave in his adjudication of it.

If Your Honours are wondering what lines 4 and

5 are about, at the outset of my submissions in

support of the applications, which were heard

together, I indicated that I regarded the Crown as

being confronted with one hurdle in this matter,

and that was the fact that both respondents, now

the applicants, had been released from the court on

Everett 25 3/6/94

the day His Honour imposed the sentences he did and had been free from custody for a substantial period

of time.

McHUGH J:	Mr Bugg, I must say I regard that particular point, or the judge's approach to it, as the most
substantial weakness in the Crown case. The judge
seems to say, in affect, that if there is
inadequacy of sentence to the point of error then the question of delay is irrelevant.
MR BUGG:	Yes, I thought someone might come to that this

afternoon, Your Honour, and I see that as a

criticism of the expression of His Honour in the

text of his reasons. But it does not, in my

submission, by itself indicate - I would concede

that obviously it makes the ice a little thinner in
that part of the judgment than I would prefer it to

be, but the - - -

McHUGH J: After all, this was, what, six months?

MR BUGG:  Yes, it was. It was almost exactly six months.

But in terms of delay, as I was saying, the appeal

term in October had finished. This was heard in

the March appeal term and you can see from the date
of the decision that it was clearly handed down

before the next appeal term. The respondents were

notified by the court, and I suppose this should
not have put them on notice, for another reason

which I will quickly deal with, when all

submissions had been heard and the court reserved

its decision, counsel for both respondents were

notified that the court would require the

respondents back at court when the decision was

handed down.

But that should not have immediately caused

them concern for the simple reason that the Court

of Criminal Appeal had already opined that there

was a technical error in the learned sentencing

judge's disposition of the matter anyway, not

connected with a custodial term but rather the

peripheral matters, if I can call them that. They,

of necessity, had to be corrected, and that is

dealt with in the very early part of

Justice zeeman's decision. I suppose, strictly

speaking, that error could be said to have been

invited by the submissions from the defence counsel

and counsel instructed for the Crown.

If I may just, perhaps whilst I am on that

point, and I am not dodging the issue, Your Honour,

come back to it: Your Honours will see from the

transcript of proceedings before the sentencing

judge that the Crown was represented by principal

Crown counsel Jacobs who - my office is entirely

Everett 26 3/6/94

based in Hobart and counsel travel to the circuit

courts to undertake prosecutions. A local

barrister and solicitor, Mr Lillas, was briefed to

attend and take the sentence for the conclusion of

the matter after counsel had returned to Hobart.

So that is why there was a change of counsel

mid-stream and the counsel appearing for the Crown

when the matter resumed before the sentencing

judge, Mr Lillas in fact sought leave on one

occasion in particular to take instructions as to

issues that were taken with the facts. Mr Lillas

is not an employee of the Crown and is a private

practitioner practising in the township of Burnie.

Having got that explanation out of the way, where Justice Crawford says that, when he says:

I am not persuaded that it should be. If the sentences were inadequate to the point of

error that justice was not done and the situation should be put right.

Now that is quite capable of being accommodated within the guidelines, if I can use that term,

where he is satisfied that the exceptional

contained within Your Honours' joint judgment in

circumstances justifying a grant of leave are
present, then arguably, that consideration for the

exercise of his discretion has been taken into

account and the important issue of principle

surpasses or overrides that residual discretion

factor,that is, the one of unfairness. So that,

whilst it looks on the face of it as a statement

that, "Look, once you have satisfied yourself that

you have got a manifestly inadequate sentence that

requires correction, all other issues do not

require consideration."

McHUGH J: But it does rather look as though the learned

judge has refused to take into account a matter
that he was bound to take into account.	I mean

your own submissions seem to accept that it was a

relevant matter that had to be taken into account.

MR BUGG:  There is no doubt about that and I am trying to

suggest that it is open to interpretation that he

has taken it into account. As I have said, I

clearly anticipated that there would be some

question in relation to that. But I would submit

that that passage commencing at the foot of page 70

and concluding at about line 12 on 71 and in the

position in which it occurs particularly with

reference to applications, is capable of

interpretation that His Honour was ex post facto

explaining the issues that were·contained within

Everett 27 3/6/94

Justice Zeeman's judgment and his reason for not

following the same course as Justice Zeeman.

McHUGH J: The structure of the judgment indicates that the

learned judge may have reached a conclusion and

only at some later stage came to the view that the

question of leave had to be addressed.	It is a
strange place to find.	It looks ver:v much like it
is an addendum.	If you.took at page-70 at line 7,
he says:

I respectfully conclude that the sentences imposed were mani.f estly inadequate.

And then at line 16:

For these reasons I would grant leave to

appeal, allow both appeals and set the

sentences aside.

MR BUGG:  Then at the foot of the page he says:

The applications for leave to appeal

should be granted, the appeals allowed and

fresh sentences - - -

McHUGH J: With the problem arising out of Dowie's case that

seems as though it is an addendum. However, it is

not necessarily so because it is quite a usual way

of dealing with the submissions, coming to a

conclusion and then dealing with the counter
arguments.

MR BUGG:  Arguably if Justice Crawford had concluded his

reasoning by saying, "I have taken into account the

principles contained in Dowie and the issues

relating to Crown appeals against sentence, and

having considered all of those matters I am

satisfied that this is one of those special

circumstances where an issue of principle has been

established, leave should be granted and the appeal

succeed", and left it at that, with respect, there
could be no criticism. But if, having dealt with
the matter and the issues in that way, he then

addresses issues which have been raised by one of

done here, it is not, in my submission, indicative his brother judges on the same court, as he has

of a flaw in the reasoning process that caused him

to arrive at a stage such as that contained at

either line 7 or line 45 on page 70. I cannot

advance that any further, Your Honour.

In so far as whilst dealing with that matter,

the issue dealt with by Justice Cox, in my

submission, does not manifest any misapplication of

principle or lack of understanding of the

appropriate principles to be applied, and

Everett 28 3/6/94

His Honour deals throughout with the matter as an

application for leave to appeal and considers the
issue of unfairness when he deals with that

particular matter, and the position obviously that

he was aware that Justice Zeeman had taken.

Moving to the next issue which obviously would

be a matter of concern to this Court both in

relation to any application or, should leave be

granted, any subsequent resolution to this matter,

and that is the position taken by the Crown.	It is
my submission that the Crown involvement in the
exchanges which occurred between the learned

sentencing judge and all counsel, starting at about

page 34 I believe it is, but in any event it goes

on for quite some time as His Honour is "teasing

out", as he says, the sentencing problem, the issue

should first be understood in light of what the

position of the Crown as obviously disclosed to

defence counsel was in response to the invitation

from His Honour on page 8 of the application book
where His Honour sought some assistance from the

Crown by way of a comparable sentencing matter, and

the Crown made available to the court the sentence

in the matter of Tol which, in fact, was a sentence

imposed by Justice Crawford on 16 November 1992.

Those comments on passing sentence are contained in

the manila folder that contains a couple of the
references not available obviously from the library

here.

I merely draw Your Honours' attention to that

because in response to an invitation for assistance

the Crown provides the learned sentencing judge with what you might believe is a matter that is

almost on all fours with the exception, perhaps, of

a more aggressive threat from the person wielding

the gun, that he was disguised with a balaclava or

a stocking mask and he was 19 years of age, no

prior convictions, but notwithstanding a term of

imprisonment must be imposed - page 2, second

paragraph - and as an encouragement towards

rehabilitation part of it will be suspended, a

reasoning process which must be distinguished and a sentencing process which must be distinguished from

those cases cited from South Australia because, in

South Australia, the only power of a sentencing

judge to suspend a sentence is to suspend the

entire sentence. There is no partial suspension of

a sentence in South Australia.

So once a sentencing judge starts talking

about suspending a sentence, and has a response

from prosecuting counsel, such as, "I'm neutral on

the issue of suspension.", the Crown has been put

contemplating is a total suspension of the sentence clearly on notice that what the judge is

Everett 29 3/6/94

and that is borne out by the unreported judgment

from the Court of Criminal Appeal in South

Australia called Fermaner, that judgment having - - -

DEANE J:  Mr Bugg, how would the sentence in Tol compare

first with the sentence imposed in this case,
taking into account the fact that the sentence in

Tol was backdated to the commencement of imprisonment and that, in one case here, there had

been a considerable period of imprisonment served?

MR BUGG: Yes, I suppose you start looking at the head

sentence and you say, "First of all, the Tol

sentence was exactly twice the head tariff.

Secondly, the effective term was three times

Everett's and approximately seven - no, actually

more than that, it is approximately 12 times

Phillips' sentence.

DEANE J:	How long had Everett been in gaol?
MR BUGG:	Everett had been in gaol for three months.

85 days.

DEANE J: So effectively it was nine months as against three

months.

MR BUGG: That is right.

DEANE J: But there is nothing about Tol having all the·

evidence of character and how out of context with
character and everything else.

MR BUGG:  It seemed to me that the evidence as to his

prospects for rehabilitation, and issues of that

nature, were not in issue. He co-operated with the

police, he had pleaded guilty at an early stage.

His family have shown that they are still prepared

to provide him with support, and upon his release -

he encourages him to accept it.

DEANE J:  Except that Everett is a little bit different. I

mean he says, "Bad aspects of life. To achieve

rehabilitation he must change." Everett, the

evidence was, "This is completely out of character.

Tremendously strong character evidence, and full

confidence in rehabilitation." It just does not

seem to me that they are out of the same ballpark

at all.

MR BUGG:	As an indication - I suppose there are two stages to this, Your Honour and it is no excuse, from the
Crown's point of view to say that, but at the stage
when this material was presented to His Honour no plea in mitigation had been put. Here is a
comparable situation: a person who is about 18 or

Everett 30 3/6/94

19, no prior convictions, serious crime and so on

and so on. What has happened in the past in this

court, two years, nine months effective, the

balance suspended, good behaviour bond and what

have you.

In my submission that is assistance sought by

the sentencing judge from the Crown as to what he
should do with this difficult sentencing problem

that he had. Clearly not an indication that a

non-custodial sentence, which was the effect of

what occurred certainly with Phillips, but also in

reality with Everett, at a time - bear in mind

Tol's sentence is imposed in 1992 when Davine's

decision has not been handed down, when

Justice Slicer has not been sitting on the Court of

Criminal Appeal and hearing the material about

genuine public concern about crimes of this nature

and their increase in the State, and a position

taken, as far as tariff is concerned, from a

defence appeal against sentence, leaving a sentence

of eight years untouched on appeal when prior to

1993 that would have been - - -

DEANE J:  I was not suggesting for one moment that the

unanimous view of the Court of Criminal Appeal that

the sentence was inadequate was mistaken. I was

simply querying that Tel - when you take account of

the facts, that Tel was disbelieved in what he put

on sentencing, that his evidence of character

apparently was not similar to Everett, that in

Tol's case it was said, "He will have to change if

he is going to be rehabilitated", the opposite view

was expressed in Everett, I am simply querying that

Tol, as it were, was a contrast in approach to that

which Justice Slicer adopted in Everett's case.

MR BUGG:  I accept that there are those differences there,

Your Honour, by way of explanation I was - - -

DEANE J: But in terms of the final sentence being

inadequate, if one passes a threshold of leave, I

was not making any suggestion whatsoever.

MR BUGG:  What I was trying to do by way of that response

was to indicate that certainly the ground rules

have changed quite a bit between the date of that

sentence in 1992 and October 1993 when the matter

was dealt with by Justice Slicer. I expected this

matter to be an application for special leave. To

some extent I do not have all the material I would

have presented but I will make available,

obviously, through the Registry, the position

concerning this Devine matter which I have

mentioned to Your Honours which has got to be

regarded as a prior matter in terms of the

Everett 31 3/6/94

evolution of the court's attitude towards sentences

for robberies in Tasmania.

The joint judgment of that Court of Criminal

Appeal consisting of Justice Underwood, Wright and

Slicer on 27 August handed down its decision and at

page 3 - for the purposes of the transcript -

referred to the fact that in Tasmania the

conviction for armed robbery in 1988 were 3, in

1989 were 1, in 1990 were 3, in 1991 were 11, and

there were 16 persons awaiting disposition before
the criminal court charged with armed robbery at

the time that decision was handed down.

So, there was a dramatic escalation and a

recognition by the Court of Criminal Appeal in that

matter, and bear in mind Justice Slicer was one of

them, so it is not a question of saying suddenly a

sentencing judge has been taken by surprise by a

Crown position. In fact, the Court of Criminal

Appeal was identifying the change in ground rules

and was moulding them, one might say, with

.McFarlane just prior to this matter being argued.

McHUGH J: Are sentences for armed robbery generally lower

in Tasmania than on the mainland? Coming from New

South Wales, the sentences seem rather light, just

generally. Has any examination been done?

MR BUGG: Well, it was identified by Justice Neasey, I

believe, in part of his judgment in Percy's case,

that there had been an acknowledgement that

sentences in Tasmania for a range of crimes were

less than those on the mainland, but that is

because we are different down there, and we all

know that there is national recognition of some of

our differences; some of them we are not so proud

of, but others we are, and the situation,

Your Honour, is that there was a regarded

difference - - -

McHUGH J:  It may be a more enlightened State in relation to

sentencing matters.

MR BUGG: Well, if I could endorse those comments in support

of my submission for the decision of the Court of

Criminal Appeal, Your Honour - - -

DAWSON J: Maybe the detection rate is higher.

MR BUGG:  The detection rate is higher in Tasmania, and

obviously it is hard to get away quickly if you are

not a good swimmer, and certainly that is a factor

that, I think, Justice Isaacs, dealt with in his

decision in Griffith's case, wh~re he said that it
is not so much the deterrence, but the certainty of

being caught and of being punished that is the

Everett 32 3/6/94

deterrent, and it does not seem to have worked that

way in Tasmania, so the tariff has been adjusted.

But, if I can just for a moment say that I did

look at that issue when I was canvassing

statistical material for the arguments that were

advanced to the Court of Criminal Appeal in

McFarlane, and, oddly enough, I think it is only

those matters involving the professional robber

where you see significant sentences on the

mainland. It is interesting, when you look at the

authorities that have been cited by the applicants

and, in fact, the attitude taken by the Court of

Criminal Appeal in South Australia in Fermana,

that, in fact, there are sentences that come within

the category of the like-Tasmanian type as well for

armed hold-ups.

We amended our Criminal Code in 1988, I think, to categorize robberies.	We used to have only
robbery and aggravated robbery.	We did not have a

facility for armed robbery. So there are now

gradations of seriousness of the crime of robbery.

You have aggravated armed robbery; armed robbery

and so on, because, in a sentencing, from the point

of view of statistical analysis, it was becoming

very difficult because, in fact, a mugging for

20 cents was a robbery in Tasmania, so community

service orders were the order of the day for that

sort of treatment, if it was ever detected.

BRENNAN J:  Mr Bugg, the major problem, obviously, lies in

the leave to appeal side of this rather than on the sentencing side as has been pointed out to you. Do

you have any submission to make that the provision

by counsel for the prosecution, of the Tol

transcript and the knowledge that might be

attributed to Justice Slicer of the judgment to

which he was a party in Devine, was such as to

affect the question of the Crown's conduct of the

matter before Justice Slicer?

MR BUGG:  I cannot assert that as a fact and I would not

submit that it has but, in determining whether or

not on that issue of principle, and that is, "Has

the conduct of the Crown either assisted or caused the court to fall into appealable error in the way in which it has dealt with this sentencing

matter?", I would submit not; that is, that it has
not, because that matter I would, with respect,
adopt the disposition of that aspect of the matter,

the position that was taken by Justice Cox, and

that is that the learned sentencing judge was

teasing out "suspended, partial suspension, how do

I deal with parity, do we have any submissions

about disparity?", after there had been presented

to the court by Crown counsel the material on Tol.

Everett 33 3/6/94

We submit that it is not a question of where

His Honour suddenly had the Crown moving to lift

the tariff by a legitimate exercise of appellate

review of tariff levels in Tasmania, because it was

already happening by the Crown's response to

Devine's application.

So, first of all, the judge, we say, is awaxe;

secondly, he is assisted by Tol; thirdly, the

exchanges, when one reads them through from pages

34 to 47 of the application book, you will see that

it is not a clear indication, in my submission,

that that is the end point that His Honour is

taking; he is talking about partial suspension; he

is talking in one instance about total suspension;

but in the same terms he is talking about how he

should deal with parity because he has Everett who

has already served three months and "How do I deal

with Phillips so that Everett may not feel

disgruntled in the way in which I deal with

Phillips or, alternatively, I've got to make the

sentence I impose on Phillips, in some way,

comparable?", and clearly he did not, because

Everett served, effectively, three months.

Now, that is basically the way His Honour

dealt with the matter. It is suggested from some

of the authorities that are cited by the applicants

that the Crown should be on notice that if defence

counsels start urging a particularly lenient course
upon the sentencing judge with which they disagree

then the Crown should make contrary submissions.

DEANE J: It is not a matter with which they disagree. It

is a matter with which they disagree so strongly

that if the trial judge accedes to the submission

they will treat him as having fallen into the kind
of error which would justify a Crown appeal against

sentence, which is an extreme case.

MR BUGG:  Your Honour, I am sorry to interrupt, but if I may

just add to that, that response has then got to be

coloured by the fact that if such a submission is

so wrong that a Crown application for leave would

succeed, we would suggest that the learned

sentencing judge should be aware of that. In

other words, we say as a matter of fixed principle
or law, His Honour should be aware that what I am

getting here is an ambit claim and it is not

sustainable at law, and that certainly seems to me

is referred to in the outline of submissions by the respondent.

to be the attitude that the Court of Criminal which

DEANE J: That, no doubt, is a very strong argument querying

the extent to which it is applicable when the

Everett 34 3/6/94

sentencing judge makes clear what he is

contemplating and the Crown sits silent.

MR BUGG:  I understand that, and I find that a little

difficult to respond to in this sense, and that is,

if there is a specific invitation, "Look, I am

planning to do this. Does the Crown have any

submissions to say about it?" -That is certainly a

position that, in two instances in the authorities

cited by the applicants, the Court of Criminal

Appeal has declined to intervene, and I would not

seek to dissuade this Court against such a course
as being an incorrect path to follow.

But where H·is Honour is musing or teasing out issues primarily with defence counsel because his

invitation to the Crown in this case was, if you

have anything to say, and bear in mind I appreciate

your problems about coming into this matter at

short notice, and granting an adjournment so he can

go away and even check on the facts - you have

defence counsel who have carried the matter

through; they were aware from the resumption of

proceedings what the Crown has put to His Honour;

they were aware there was a real risk and they push

for what I would regard as clearly an inadequate

penalty. But in those circumstances, should the

Crown assume that the sentencing judge is going to

accede to that request from the exchanges that
occurred, and I would submit not because that is

the position His Honour Mr Justice Cox took, and in

determining whether or not what the Crown has done

is encouraged or assisted in an appealable error,

and he said, "Look, with that exchange you cannot

say that the Crown has caused or contributed to

that appealable error".

I am sorry, that is my rambling answer,

Your Honour, but if Your Honour looks at the

exchanges, bearing in mind that this is a special

leave application and the onus is upon the

applicants, I am not seeking to hide behind an onus

of proof, but to satisfy this Court that there is

something special about this one would have to be

satisfied that that exchange so contributed to the

appealable error that it would be unfair for the

Crown to rely upon that error and place the

applicants at double jeopardy, and I would not seek

to try and elicit from this Court any statement of

principle different to that espoused in the

applicants about Crown induced errors, induced as	judgments which have been referred to by the
opposed to - I mean, if a judge says to the Crown,
"Look, this is what I am thinking of doing. Do you
have any comments?" and there is no response,
silence must be deemed to be assent.

Everett 35 3/6/94

But if we reach a stage, which it seems to me

that we are at risk at should special leave be

granted in this matter, of having defence counsel

and Crown counsel entering into an adversarial role

before a sentencing judge as to what an appropriate
sentence is, because either an inexperienced or an
over-ambitious defence counsel raises the ambit
claim to that point that Your Honour has

predicated, it is a matter of concern to me and, I

would submit that it ought be a matter of concern

to this Court, as to where that may just lead.

If it is a Crown-induced error, I do not have a problem. But we submit that this was not an

error induced by the Crown and, as I have said, we

do not seek to rely on section 386(13), because I
do not believe in the way in which it evolved this

was a matter where I would have said the Crown was

using section 386(11). That is, standing up and

saying, "This is a serious matter", which of course

is what had occurred in Tasmania in McFarlane at

the sentencing stage, and then moved to the appeal.

But by then that statistical material had

been through the judicial process in Devine, which

was why, obviously, to a lesser extent, the Crown's

position on matters of grave public concern had

taken the way it had.	I cannot assist Your Honours
further in relation to the special leave points.	I
realize that I am in double jeopardy here.

BRENNAN J: If special leave were granted, would there be

any further matter that you would wish to put

forward on the matter of the appeal?

MR BUGG:  I would, certainly, in considering the correctness

of the decisions of the judges in the Court of

Criminal Appeal invite Your Honours to consider

whether or not, as is suggested, His Honour

Justice Zeeman dealt with the matter appropriately

Because it is my submission that His Honour, with

respect, misdirected himself when he started to

look at the question of leave, and that is at the

top of page 76. His citation of Neal v The Queen is not supportive of the proposition that he says

it is because in fact Neal was an increase of

sentence imposed on the applicant.

What was said in Neal is that leave should be

considered as a separate and distinct matter, and

if the appellate court is considering reviewing

upwards the sentence of the successful applicant,

it should at least give him notice of that so that

he can deal with the matter on the question of the merits of the appeal itself. In some respects the

court was there identifying the opportunity to

withdraw that is then available, certainly, under

Everett 36 3/6/94

the Criminal Code in Queensland, where I believe an

application for leave is made to a single judge, or

can be made to a single judge, and if the appellate court is considering reviewing upwards the

sentence, then it should warn the applicant so that

his position can be made known.

So there there is a huge difference between

that position and what His Honour was citing Neal

as authority for, is not on any reading of the case

as supportive of that authority as it relates to

Crown applications for leave to appeal against

sentence.

BRENNAN J: But does that really take you very far? I mean

there is a question of leave to appeal before the

appeal falls for consideration and the question for consideration is whether or not, in the exercise of

that discretionary power, there are factors which

have to be taken into account in a Crown

application.

MR BUGG:  I accept that, Your Honour. But I think what

His Honour did then was to heavily define a

demarcation between an application for leave and

the appeal proper because as Your Honours

Justices Deane and McHugh said in Malvaso, "By

necessary implication, you are going to have a
consideration of the merits of the appeal during

consideration of an application for leave", and it

may very well be that he has placed himself into

too rigid a position for the determination of the

issues of an application for leave.

DEANE J: Not if you read the next sentence. He says, "The

merits of the proposed appeal constitute a relevant

consideration for the question of leave", which

means that he recognizes - indeed, as his judgment

demonstrates, he accepts the need to look at the

proposed appeal and consider the merits in

determining whether the case is one of the very rare categories of the case in which a grant of leave to the Crown can be justified.

MR BUGG:  Yes, I accept that, Your Honour. What you have

are three judges of the Court of Criminal Appeal

who have said, Your Honour, in addressing the

general issue, "Look, in reality these sentences

were manifestly inadequate." In Justice Zeeman's

case, he says, "I would have imposed a harsher
penalty than that which was imposed by the learned
sentencing judge but that is not an end to the

matter, I have got to look at the question of

fairness or unfairness and the question of the

injustice of putting these people back in prison

after their six months of freed~m and also the

position taken by the Crown."

Everett 37 3/6/94

DEANE J: Yes, but you can put that too strongly, can you

not? I mean, if you accept Justice Crawford's

assessment of the appropriate sentence, you have a

case where it should be said the sentence imposed

was inadequate but the appropriate sentence is one

in respect of which the custodial term would have

already expired by the time we come to consider

this application and that being so, the query is

whether, in a context where these young men have been released on bail and presumably, set out on

the path to rehabilitation, we should send them to

been that Everett serve six months. jail because the appropriate sentence would have

Well now, really, once you adopt that

approach, you do not start with Justice Crawford's

approach that, "An appeal would succeed, therefore,

I have to consider whether there is any reverse

ground flowing from it being a Crown appeal that

should stop me granting leave on the ground of

unfairness."

MR BUGG:  I suppose, Your Honour, in dealing with what Your

Honour has just said - - -

DEANE J: Which was a bit of a tirade, I suppose, but it

seems that eventually that is where we -

MR BUGG:  No, I could see it coming, Your Honour, but there

are two responses to that. The first one is, yes,

His Honour Justice Crawford may have considered in

a residual sense these two matters but that is not

inconsistent with what is said. You do not even

get to consider the question of unfairness or

injustice unless you are looking at something that

comes within these rare circumstances. He has

fitted it within the rare circumstances - and that

is an inappropriate term and I withdraw it

immediately - but he has found that it meets those

circumstances. He then goes on to consider those

other matters. If you look at page 72 of the

application book, he is still talking about an

application for leave to appeal in the last

paragraph of his judgment.

I accept the fact that it obviously is a very

difficult decision for an appellate court and those

expressions of concern can be elicited, certainly,

from Justice Cox's comments that it is a

regrettable result but it has to happen. If you

are looking at principles of sentencing and saying, "Is there real public concern? Is this a matter of

such fundamental principle that it will cause

is a

public concern unless there correction of judge's disposition of the matter, but it was a

it?", then you say, "How has this error occurred?"

Everett 38 3/6/94

course which was urged upon him by both applicants

through their counsel; one perhaps a little more

optimistically than the other, but it was a course

which did not come through no lack of request from

the applicants.

So in looking at the fairness of it and

saying, "Look, the sentence that Justice Crawford

has imposed is one which would have expired if they

had been properly sentenced by the learned

concern, as far as the applicants are concerned,	sentencing judge", certainly is a matter of
but when one is looking at the balancing of the two
concerns in this exercise, that is, a sentence of general deterrent, there is no effective response
from the Court of Criminal Appeal, if it concludes
that that exercise of balancing got out of kilter,
if it does not correct it in the way in which it
had.
Sad, thought it is, obviously a matter of such importance and such principle had to outweigh those
matters of residual discretion. So that is the
best I can respond to the matters that Your Honour
matters that my learned friend raised. raised. If I may just - I made some notes in

Certainly as far as the question of principle

is concerned, we would say that the Court of

Criminal Appeal in Tasmania, as evidenced from the unreported judgments to which I have referred in

the very narrow passages that are there, and copies

of those have been made available to Your Honours

and they are detailed in the outline of submissions

as cases to which reference might be made~ that is

Graham, Rouse and Hancox, you will see that there

has been a consistent application of principle

where there Crown applications for leave have been

rejected and the comments made by the members of the Court of Criminal Appeal, or the individual

members, would indicate that. I do not have any

other submissions to advance to Your Honours. If

the Court pleases.

BRENNAN J: Thank you, Mr Bugg. Yes, Mr Porter?

MR PORTER:  If I may just very briefly on two points, if the

Court pleases. Firstly, a minor factual correction

if I may. With respect, Justice Deane referred. to

the fact that the applicants were on bail pending

this appeal. For what it is worth that is not in

fact the case. They were - - -

DEANE J: Pending this appeal?

MR PORTER:  I am sorry?

Everett 39 3/6/94

DEANE J:	I was not aware that I had said that.
MR PORTER:	I understood Your Honour to say that your

understanding was they were on bail pending the

appeal to the Court of Criminal Appeal.

DEANE J:  I am sorry.

MR PORTER: That is not in fact - - -

DEANE J:	I should have said on a good behaviour bond.
MR PORTER:	The only other matter was it was put to

Your Honours that the application was made to the

Court of Criminal Appeal to establish a matter of

principle and my point as to this is whether it was

a proper matter to establish a principle in

accordance with the authorities to which I have

made reference can be viewed at, perhaps, in the

context of what this judgment does and I think Your

Honour Justice Gaudron made a comment this morning

concerning the degree to which the sentence had
been adjusted.

In that context, if I could leave the Court with just two brief references, I do not need to take Your Honours to the reports. The first is

Osenkowski, (1982) 30 SASR 212, where

Chief Justice King said:

It is important' the prosecution appeal should

not be allowed to circumscribe unduly the

sentencing discretion of judges. There must

always be a place for the exercise of mercy

where a judge's sympathies are reasonably

excited by the circumstances of the case.

Lastly, on that same point, Justice Jacobs, in

Griffiths' case, at page 326:

It is the task of a court of criminal appeal

to minimize disparities of sentencing

standards yet still recognize that perfect

uniformity cannot be attained and that a fair

margin of discretion must be left to the

sentencing judge.

It is appropriate to bear those comments in mind,

with respect. Thank you, Your Honours.

BRENNAN J: Thank you, Mr Porter. The Court will adjourn in

order to consider the course it shall take.

AT 3.34 PM SHORT ADJOURNMENT

Everett 40 3/6/94

UPON RESUMING AT 3.46 PM:

BRENNAN J: The Court is of the opinion that special leave

should be granted in this case, and that the appeal
should be allowed. Reasons will be delivered in

due course. The orders of the Court of Criminal

Appeal are set aside and in lieu thereof the

application by the respondent for leave to appeal

to the Court of Criminal Appeal is dismissed. The

consequence is that the sentences imposed on the

respective appellants by Mr Justice Slicer are

restored.

Mr Bugg, we note that the judgments below have

raised a problem with respect to the second of the

conditions of suspension, but that matter seems to

have been disregarded by Mr Justice Zeeman. Have you any submissions as to that matter or may this Court follow the same course as was followed by

Mr Justice Zeeman?

DAWSON J:  We really do not have any jurisdiction to do

anything about it.

MR BUGG:  I would have thought not, and I would have thought

that it is probably a matter that can be disposed

of in light of the course that Your Honours have

taken today.

BRENNAN J: Yes •

MR BUGG: Yes, if the Court pleases.

BRENNAN J: The Court will adjourn.

AT 3.47 PM THE MATTER WAS ADJOURNED SINE DIE

Everett 41 3/6/94