Feagaiga v The Queen; Kumar v The Queen
[2009] HCATrans 128
[2009] HCATrans 128
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S23 of 2009
B e t w e e n -
FEAGAIGA FEAGAIGA
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S84 of 2009
B e t w e e n -
AVEEN KUMAR
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
HEYDON J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 5 JUNE 2009, AT 3.55 PM
Copyright in the High Court of Australia
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MR H.K. DHANJI: May it please the Court, I appear for the applicants in these matters with my learned friend, MR S.J. BUCHEN. (instructed by Legal Aid Commission of NSW)
MR D.U. ARNOTT, SC: May it please the Court, I appear for the respondents in both matters. (instructed by Solicitor for Public Prosecutions (NSW))
HEYDON J: Yes, Mr Dhanji.
MR DHANJI: Your Honours, these applications involve, in our submission, attention between the principles of parity and the principles that govern the determination of Crown appeals. The intersection of the principles arises in the context of the increasing frequency of Crown appeals. The consequence is that the matters give rise to an issue that has in fact arisen, certainly in New South Wales, with what might otherwise be regarded as surprising frequency. It has also led to a divergence in approaches within New South Wales, and indeed some divergence across jurisdictions within Australia.
There is an important question raised with respect to the principles of parity, and in particular the application of those principles in Crown appeals. Your Honours, the applicants were respondents to Crown appeals against sentences imposed upon them in the District Court. The appeals against both applicants were brought against each of the sentences imposed in the District Court. In relation to the applicant, Kumar, there were four matters in the District Court. In relation to the applicant, Feagaiga, there were a total of 10 matters in the District Court.
The grounds of appeal alleged by the Crown, or asserted by the Crown, in respect of each sentence for each applicant was that the sentence imposed in the District Court was manifestly inadequate. In House v The King terms the complaint on behalf of the Crown was that the sentences imposed were unreasonable or plainly unjust. The notion of manifest inadequacy effectively equating to a complaint of unreasonable or manifestly unjust was stated clearly by this Court quite recently in Carroll. It also stems from the judgment of this Court in Markarian.
The appeals to the Court of Criminal Appeal were upheld, as against both applicants, and in relation to each sentence, or each of the four primary offences, I should say, against each applicant. They were upheld despite the fact that in doing so the Court of Criminal Appeal created a disparity as against the sentences imposed on a co‑offender, a Mr Babanour.
The applicant’s submission is that the Court of Criminal Appeal in upholding the appeals failed to address the true question which the appeals raised. That is, the Court of Criminal Appeal, in our submission, failed to address the question as to whether the sentences were unreasonable or plainly unjust. Rather, the Court of Criminal Appeal addressed a question as to whether the sentences were outside the ordinary range for sentences with respect to such matters.
In the ordinary case the answers, or those questions, that is, is it outside the ordinary range or was the sentence unreasonable or plainly unjust, will yield the same answer. In the present cases, however, because of the sentences imposed upon Mr Babanour, the answers to those questions did not yield the same answer. Rather, simply answering the question was it outside the ordinary range did not answer the question, was the sentence or were the sentences unreasonable or plainly unjust?
So on the basis of that submission that it is submitted as the primary contention on behalf of the applicants that it was not open to the Court of Criminal Appeal to interfere with the sentences imposed in the District Court, in the alternative it is submitted that the Court of Criminal Appeal failed to properly exercise the available discretion to dismiss the Crown appeals and the basis of that submission is that the Court of Criminal Appeal failed to take into account relevant matters and took into account irrelevant matters.
In terms of the primary submission, in determining whether the sentences imposed at first instance were unreasonable or plainly unjust, two matters in the instant cases come to the fore. The first – and I apologise for being perhaps trite – is that sentencing is, of course, an inexact science; there is no single correct result. That has been stated by this Court many times. The second matter that comes to the fore is that public confidence in the administration of criminal justice is undermined by the appearance of arbitrariness, referred to by his Honour, then Justice Mason, in Lowe v The Queen as the badge of unfairness. Principles of parity are designed to address the appearance of arbitrariness in the particular case. Principles that govern Crown appeals are designed to address the appearance of arbitrariness across the general range of sentences.
KIEFEL J: Could I ask you to move more specifically to the error as you see it in the Court of Criminal Appeal’s reasoning which appears to be two matters you say that it has created points of distinction but what their Honours appear to have referred to is that the sentencing judge did not take account of the fact that there were more charges than Babanour was involved with and that there was a difference in their motivation.
MR DHANJI: Yes, your Honour.
KIEFEL J: Why are those not sufficient to show that a difference of approach was warranted in the sentencing of these two applicants?
MR DHANJI: Because, your Honour, whilst there were differences – and indeed as between any co‑offenders there will necessarily be differences, what one is concerned with is proportionality and whilst one can look to particular matters, ultimately really the submission rests on the acknowledgement by Justice Hulme - with whom the other members of the court agreed, at least with respect to the result - Justice Hulme would have imposed a somewhat different sentence - that the interference on the Crown appeal would create a disparity. His Honour said – and this is at application book page 56, paragraph 74:
Any attempt to simply bring the sentences imposed on the Respondents up to, or closer to, the sentences imposed on Babanour would simply be tinkering.
Reinforcing the claim that on parity grounds this Court should not interfere is the fact that the Crown has chosen not to seek to appeal against the sentences imposed on Babanour.
In other words, whilst his Honour does look to points of distinction, ultimately his Honour concedes that the intervention in fact will create a disparity. There is a more fundamental problem involved in the reasoning with respect of his Honour because in terms of his Honour’s distinction between these offenders and the offender, Babanour, his Honour has regarded the primary point of distinction as being the fact that these offenders, dealing with the primary four charges, were dealt with for the four charges whereas, in the case of Babanour, he was dealt with for only two of those four charges as primary offences. He did in fact admit his guilt of the other two charges and had those matters taken into account on a Form 1 when he was sentenced with respect to the first matter, so Mr Babanour admitted, and in a sense was dealt with, with respect to all four.
When his Honour Justice Hulme sought to differentiate them – and if I can take your Honours to application book 50, at paragraph 49, his Honour indicates the sentences imposed on Babanour. Paragraph 50, his Honour says:
Thus the effective sentence on Babanour was imprisonment for 5½ years including a non‑parole period of 3 years 8 months, not much less than the effective sentences imposed on Kumar of imprisonment for 6 years including a non‑parole period of 4 years and Feagaiga of imprisonment for 6 years and 3 months including a non‑parole period of 4 years and 3 months.
So his Honour makes a comparison as between total sentences, not as between the individual sentences. He then goes on at 51:
But there is another factor of greater significance. Babanour was sentences for 2 offences. Although others were taken into account, the law is that there are limits to the weight that can be given to those and use of the Form 1 procedure “will generally result in a lower effective sentence . . .
Insofar as Sides DCJ was seeking to give effect to considerations of parity, the effective sentences on the Respondents for the charges involving commercial quantities, because there were 4 charges, not 2, should have been appreciably greater than the effective sentence on Babanour.
That may be so, but the first consideration must be what is the appropriate sentence in relation to the particular offences, and with respect to the particular offences, those matters were in common.
HEYDON J: So your argument is you should really start by just ignoring Babanour and just looking at the two sentences on your clients and if you cannot say that they are grossly unreasonable, whatever the last category of House v The King is, if you cannot say that you just miss the Crown appeal for them.
MR DHANJI: Yes.
HEYDON J: But if you decide there is some error then you start looking at a comparison with Babanour, there is a two‑stage process which was not followed. Is that your position?
MR DHANJI: Perhaps not quite. In terms of putting them in House v The King terms, we say that you would look at the matters in common with Babanour and with respect to those matters the conclusion would be reached that insofar as those matters are proportionate with the sentences imposed on Babanour, the Crown appeal must be dismissed because if one accepts, as comes from Lowe v The Queen, that a court at first instance in imposing sentence has a discretion where there has been a co‑offender sentenced to what otherwise would be a manifestly inadequate sentence, the court at first instance has a discretion.
It, in some circumstances, may choose not to impose a similarly low sentence. In other circumstances it may choose to achieve parity with the earlier sentence. Once that proposition is accepted, then when it comes on a Crown appeal to determine the question of whether the particular sentence was open, the conclusion in our submission must be reached that the particular sentence was open and therefore the Crown appeal cannot be upheld. The dismissal of the argument appears in the reasons of Justice Hulme application book page 55. At paragraph 70 his Honour says this:
So far I have considered the matter without regard to an argument advanced by Mr Dhanji who appeared in the appeal on behalf of Feagaiga. The argument was to the effect that Sides DCJ had a discretion to impose a sentence on the Respondents that achieved parity with the sentence imposed on Babanour -
The important words for the purposes of this application to stress are that his Honour’s interpretation of the argument was that it was a discretion to impose a sentence, not individual sentences as between the particular matters on the respondents that achieve parity with the sentence imposed on Babanour.
KIEFEL J: That might be a bit literal. Would you not read it as saying to impose a sentence on each of the respondents? We are not talking about joint sentencing. Considerations of parity are one thing, but surely his Honour meant that they should be considered individually but nevertheless with an eye to parity.
MR DHANJI: Yes, I am sorry, your Honour, I may not have made myself clear. In our submission, where his Honour speaks of a sentence on the respondent certainly he is speaking of the separate respondents, but his Honour does not appear to have directed himself to the application of parity with respect to the individual sentences. His Honour then at 71 says:
The argument is not attractive. However, I do not need to consider it in this case because his Honour’s attempt to achieve parity was not a course open to him and did miscarry. The reasons for this include the matters to which I have referred in considering Ground 7 above –
and then stresses the primary basis for that, that is –
including the difference in the number of charges.
His Honour then says at 72:
There remains of course a question whether the decision of this Court, particularly on individual sentences should be affected by considerations of parity.
His Honour then goes on at 73:
And the sentences imposed on Babanour do argue that, on parity grounds, the Crown appeals should be dismissed.
So his Honour rejects the argument based upon a global view. If I can put it in these terms, the approach of his Honour is akin to saying if two people commit an armed robbery together but one of them also has an offence for supplying drugs the parity would go out the window with respect to the sentencing for the armed robbery and that, in our submission, cannot be true. That is where we come back to paragraph 74 because his Honour concedes at 74 – this is on page 56:
Any attempt to simply bring the sentences imposed on the Respondents up to, or closer to, the sentences imposed on Babanour would simply be tinkering.
In other words, even taking into account the various differences, having regard to the fact that the primary difference is as between the number of charges, when one looks at the particular charges, if one is to take into account parity and maintain parity between offenders, the threshold for the triggering of a successful Crown appeal has not been reached.
His Honour then goes on not so much to deal with the true question, we say, that is, was it open, but rather goes on to determine simply, should this court, that is the Court of Criminal Appeal, exercise the discretion to intervene? In our submission, his Honour has missed the antecedent step of saying, with respect to the individual sentences, were those sentences unreasonable or plainly unjust, a question to be answered not by simply reference to the overall range of sentences, but by reference to the considerations of parity, given the sentences imposed upon Mr Babanour.
Your Honours, the alternative which we would put is that even if it was open to his Honour to exercise the discretion to intervene with respect to the Crown appeal, his Honour has failed to properly do that. His Honour has referred to – if I can take your Honours to page 57, paragraph 76, his Honour says:
It is unnecessary for the purposes of this appeal to re‑canvass the authorities dictating that where the criminality of, and other relevant considerations affecting the sentencing of, co‑offenders is equal, they should receive the same or similar sentences – see e.g. Lowe v R (1984) 154 CLR 606 or those cases that lay down that where adhering to parity would result in a –
second sentence – there is some typographical error there. I assume it is a second sentence –
which is manifestly inadequate, the Court is entitled to take a different course –
His Honour refers to the decisions of Harris and to Harmouche. That approach that the Court is entitled to take a different course has its origins in the approach of a Court of Criminal Appeal when it is asked to intervene on the grounds of asserted disparity by an offender, and true it is that the authorities make clear – indeed the authorities from this Court make clear – that what is occurring in the Court of Criminal Appeal is the exercise of a discretion.
As we have submitted, Lowe makes it clear that the Court of Criminal Appeal may in that circumstance intervene, and intervene to the point where a manifestly inadequate sentence is imposed, or given that it is a discretion, the Court, properly exercising that discretion, may determine not to intervene, but it is, in our submission, a very different thing in the context of a Crown appeal.
The cases to which his Honour referred, Harris and Harmouche, are both cases involving Crown appeals. That is conceded. However, when one goes to those cases, and both are on the list of authorities – if I can take your Honours perhaps first of all to Harris, [2007] NSWCCA 130, at page 15 of the joint reasons of the Chief Judge at Common Law Justice McClellan, Justices Hulme and Hislop. At paragraph 77 at the bottom of that page their Honours say:
Also to be considered are the sentences imposed on the Respondent’s co‑offender, for to increase the Respondent’s sentences to what they should have been will clearly create disparity, indeed great disparity, with those imposed on [the co‑offender]. Although of course there is a discretion to permit disparity to occur –
and his Honour there refers to cases of Diamond, Steele and Ismunandar and Siregar. Those cases are all decisions which involved appeals by offenders. It is, as we submit, a very different thing and, indeed, in an earlier case of McIvor in which your Honour Justice Heydon gave the reasons of the Court of Criminal Appeal, that point was made. McIvor is also on the list of authorities. It is (2002) 136 A Crim R 366 and the point made by your Honour appears at page 371. I will not read that because I notice my time has expired.
HEYDON J: But if you have one or two points to make trenchantly and briefly, by all means do so.
MR DHANJI: Thank you, your Honour. Your Honours, the proper approach and the distinction appears, in our submission, in your Honour’s judgment in McIvor. At 371 about halfway through paragraph 9 your Honour said this:
McIvor might say, “Is it right that I should serve 15 months in gaol when my co‑offender only serves six –
Ultimately, the point made by your Honour is it is a very different thing to say to an offender that not only are we going to treat you differently, the reason we are going to treat you differently is because you have been, for reasons that do not appear and in fact, on the face of it, appear to be arbitrary, have been singled out for a Crown appeal. That type of interference is manifest to give rise to a justifiable sense of grievance in a very different sense than to that that might be seen to arise when sentenced at first instance, that is moving from a situation of parity to disparity is a very different situation.
In terms of the frequency with which this issue has arisen, in the reply with respect to Mr Kumar we have made reference to a decision of Borkowski and, indeed, in the supplementary list of authorities we have made reference to a further decision handed down by the Court of Criminal Appeal just yesterday in which Borkowski was followed. There are, therefore, different and, indeed, inconsistent lines of authority in New South Wales that take different approaches and, indeed, do not speak to each other.
In the summary of argument we have indicated that there is some Victorian authority which appears to take an even more extreme view. In a case of Bulfin the approach taken by the Court of Criminal Appeal in Victoria appears to be that parity has even less part to play. That is obviously against us but does indicate a significant divergence in approach. In Queensland a similar line to that in McIvor has been taken.
Your Honours, in our submission, ultimately there has been a failure by the Court of Criminal Appeal to apply proper principles in terms of the important intersection of the principles of parity and those that govern Crown appeals.
HEYDON J: Thank you, Mr Dhanji. The Court need not trouble you, Mr Arnott.
Justice Kiefel and I are of opinion that the application for special leave must be refused on the ground that despite various of Mr Dhanji’s arguments there is no sufficient prospect that ultimately the position achieved by the Court of Criminal Appeal will change were special leave to be granted.
The Court will adjourn until 10.15 on Tuesday, 16 June in Canberra.
AT 4.19 PM THE MATTERS WERE CONCLUDED
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