Freeman-Quay v The Queen

[2016] HCATrans 236

[2016] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C12 of 2016

B e t w e e n -

LEVI FREEMAN‑QUAY

Plaintiff

and

THE QUEEN

Defendant

Application for bail

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 OCTOBER 2016, AT 9.28 AM

Copyright in the High Court of Australia

HIS HONOUR:     In the early hours of the morning of 21 September 2013, Mr Levi Freeman‑Quay, who I will call “the applicant”, was part of a group involved in an altercation in Canberra City with another group which included Mr Matthew Pridham, Mr Ray Reynolds and Mr Ronnie Burt.  The applicant was subsequently charged with offences which included:  causing grievous bodily harm to Mr Pridham; assault occasioning actual bodily harm to Mr Reynolds; and assaulting Mr Burt.

The applicant pleaded guilty to the second of those offences.  He was found guilty of the first and third of them after a trial in the Supreme Court of the Australian Capital Territory before Murrell CJ sitting without a jury.

On 4 September 2015, Murrell CJ convicted and sentenced the applicant.  For the offence of causing grievous bodily harm to Mr Pridham, she sentenced him to two years’ imprisonment from 4 November 2015 to be served by way of full‑time imprisonment until 3 June 2016.  For the offence of assault occasioning actual bodily harm to Mr Reynolds, she sentenced him to six months’ imprisonment to be served by full‑time imprisonment from 4 September 2015 until 3 March 2016.  For the offence of assaulting Mr Burt, she imposed a fine.

In the reasons she then gave for imposing those sentences, Murrell CJ characterised the offences as having occurred during “an episode of aggression (albeit an episode of relatively brief duration)” in which the assault occasioning actual bodily harm to Mr Reynolds was not “one isolated punch” but rather “the third of three aggressive acts by the offender”.

The applicant appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory from his conviction for the offence of causing grievous bodily harm to Mr Pridham and from his sentence for the offence of assault occasioning actual bodily harm to Mr Reynolds.

On 24 November 2015, the applicant was granted bail pending the appeal.  He had until that time served two months and 21 days of full‑time imprisonment.

The applicant’s Notice of Appeal, as ultimately amended on 24 November 2015, identified the sole ground for his appeal against sentence as that the sentence imposed was manifestly excessive.  The Notice of Appeal included amongst the orders sought that he be re‑sentenced in respect of the offence of assault occasioning actual bodily harm to Mr Reynolds.

In written submissions to the Court of Appeal, counsel for the applicant said:

“Finally, it is noted that the sentence appeal only relates to an adjustment of the sentences if the conviction appeal is upheld.  If the conviction appeal is dismissed the sentence appeal will not be pressed separately.”

The Court of Appeal, comprising Burns, Elkaim and Ross JJ, heard the appeal on 8 August 2016.  In the course of oral submissions on that day, the totality of what counsel for the applicant had to say in relation to the sentence was as follows:

“Mr Dalton:  Yes, your Honour.  Well, he had no prior convictions at the time of this offence.  The sentence for the actual bodily harm offence in relation to that, it was six months.  I note it was made only two months, partially accumulated with that for the principal sentence in regards to the grievous bodily harm.  In my submission to the court, in the circumstances of only dealing with the assault occasioning actual bodily harm, then a sentence in the order of the time that he has received to date would be sufficient, given his prior record.  Thank you, your Honour.”

The Court of Appeal gave judgment on 6 September 2016.  It allowed the appeal against conviction for the offence of causing grievous bodily harm to Mr Pridham, setting aside the conviction and sentence for that offence.  It dismissed the appeal against sentence for the offence of assault occasioning actual bodily harm to Mr Reynolds.

In relation to the appeal against sentence for the offence of assault occasioning actual bodily harm to Mr Reynolds, the Court of Appeal recorded that it only related to an adjustment of the sentences imposed if the conviction appeal was upheld and was not separately pressed.  After noting that the applicant, as the appellant before it, bore the onus of satisfying it that the ground of manifest excess was made out, the Court went on to note that the applicant had made only very brief submissions on the appeal against sentence.  Having regard to the maximum sentence of five years for the offence of assault occasioning actual bodily harm, and allowing for the applicant having appropriately received a 25% discount for pleading guilty, it was not persuaded that the six‑month sentence imposed for that offence by Murrell CJ was unreasonable or plainly unjust.

The consequence was that the applicant was liable to serve the remainder of the six‑month sentence imposed on him for that offence by Murrell CJ.  At the date of the Court of Appeal’s judgment, the remainder of that sentence stood at three months and 9 days.  The sentence is due to expire on 14 December 2016.

On 16 September 2016, the applicant applied to this Court for special leave to appeal from so much of the judgment of the Court of Appeal as failed to re‑sentence him in respect of the offence of assault occasioning actual bodily harm to Mr Reynolds.

By summons filed on 20 September 2016, the applicant applied for bail pending the determination of that application for special leave to appeal.  The affidavit filed in support of that summons indicates that the summons is to be read as seeking a stay of the sentence of imprisonment to which the application for bail is to be treated as incidental.  It is with the application made by the summons that I now deal.

The principles governing the application are those set out in United Mexican States v Cabal (2001) 209 CLR 165 at 181‑182. To stay an order of imprisonment before deciding an appeal is unusual because a stay of that nature is, for a range of reasons, regarded in ordinary circumstances as a serious interference with the due administration of criminal justice. To stay an order of imprisonment before deciding an application for special leave to appeal is more than simply unusual: it is truly exceptional.

A case is unlikely to answer the description of exceptional unless two conditions are met.  The first is that the applicant can demonstrate that there are very strong grounds for concluding not simply that special leave to appeal will be granted but that the resultant appeal will be allowed.  The second is that it is likely that the sentence, or the greater part of it, will have expired before the appeal is determined.

There is no doubt that the second of those conditions is met here.  The question to be addressed is as to the first.  Answering that question necessitates careful consideration of the application for special leave to appeal, including his proposed grounds of appeal.

What the applicant would seek to advance in an appeal, were special leave to be granted, is that the Court of Appeal had power to re‑sentence him for the offence of assault occasioning actual bodily harm to Mr Reynolds simply as a result of allowing his appeal against conviction for the offence of causing grievous bodily harm to Mr Pridham.  Having allowed the appeal against conviction, the Court of Appeal came under a duty to exercise that power in light of Murrell CJ treating the offence of causing grievous bodily harm to Mr Pridham as a circumstance bearing on the seriousness of the offence of assault occasioning actual bodily harm to Mr Reynolds and, in light of the sentencing principle stated in R v De Simoni (1981) 147 CLR 383, that an offence is not to be regarded as aggravated by conduct which would constitute a different offence for which the offender has not been convicted. The Court of Appeal’s failure to give the applicant an opportunity to make submissions on sentence following its allowance of the appeal against conviction constituted a denial of natural justice and the Court of Appeal’s failure to re‑sentence the applicant constituted a miscarriage of justice.

The applicant seeks to locate that power of the Court of Appeal to re‑sentence him in s 37O of the Supreme Court Act 1933 (ACT). That section relevantly provides:

“(1)The Court of Appeal has the following powers in relation to the order appealed from:

(a)to confirm, reverse or amend the order;

(b)to give any order it considers appropriate, or refuse to give an order applied for;

(c)to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate;

(d)to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered;

(e)to order a new trial, with or without jury, on any appropriate ground;

(f)to award enforcement of any order, or remit the proceeding to the court constituted by a single judge for enforcement of the order.

. . . 

(7)In a criminal matter, the powers of the Court of Appeal in an appeal against sentence (whether by the prosecution or defendant) include the following powers:

(a)to increase or decrease the sentence;

(b)to substitute a different sentence.”

The applicant argues that the power conferred on the Court of Appeal by s 37O of the Supreme Court Act extends to permitting the Court of Appeal to re‑exercise the sentencing discretion in respect of one offence by reason of it appearing to the Court of Appeal that the offender was improperly convicted of another offence and to do so irrespective of whether or not the offender has appealed from that sentence.

The applicant seeks to gain support for that proposition from statements of members of this Court in Ryan v The Queen (1982) 149 CLR 1 and in R H McL v The Queen (2000) 203 CLR 452. The Deputy Director of Public Prosecutions, who appears in opposition to the summons, makes the obvious point that those statements were made in the context of considering the materially different terms of s 569(1) of the Crimes Act 1958 (Vic).

The Deputy Director argued in written submissions that such a reading of s 37O of the Supreme Court Act is precluded by s 74 of the Crimes (Sentencing) Act 2005 (ACT). Section 74 provides in subsection (1) that “[i]f a court sets aside or amends a sentence of imprisonment . . . the court may amend the starting day of any other sentence that has been imposed on the offender by the court” and goes on to provide in subsection (5) that “[t]he term of a sentence, or the nonparole period of a sentence, must not be amended under [that] section”.

That argument was not pressed in oral submissions.  As noted in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421, “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”. Whatever the scope of s 37O of the Supreme Court Act, I would not regard that scope as being cut down by s 74 of the Crimes (Sentencing) Act.  That conclusion is consistent with the approach taken by the Court of Appeal in Tully v The Queen [2016] ACTCA 11 at [6]‑[13].

There is, however, considerable difficulty in construing the power conferred by s 37O of the Supreme Court Act as having the scope which the applicant seeks to attribute to it.  Section 37O(1) is directed to the powers of the Court of Appeal in relation to the order appealed from.  Those powers are not expressed to extend to the variation or amendment of other orders.  Section 37O(7) is addressed only to the powers applicable in an appeal against sentence.  Neither provision can easily be read as permitting the Court of Appeal in an appeal against sentence to re‑exercise the sentencing discretion in respect of an offence which is not the subject of that appeal.

The Deputy Director appeared to go so far as to argue that, even in an appeal against sentence, the Court of Appeal has no power under s 37O to re‑exercise the sentencing discretion in circumstances where that Court has separately held in an appeal against conviction that the offender was improperly convicted of another offence to which regard had been had by the sentencing judge.  I am not disposed to accept that argument.  But, it is not necessary that I reach a concluded view.

The applicant did appeal against his sentence for the offence of assault occasioning actual bodily harm to Mr Reynolds.  As I have already noted, that appeal was brought on the sole ground that the sentence was manifestly excessive.  There could be no complaint as to the manner in which the Court of Appeal dealt with that ground given the manner in which it was argued.  Contrary to the argument of counsel for the applicant, I cannot accept that the Court of Appeal was asked to go further.  Neither in written nor oral submissions to the Court of Appeal did the applicant through his counsel ask the Court of Appeal to consider re‑exercising the discretion independently of finding the sentence imposed to have been manifestly excessive.

How the Court of Appeal might have dealt with the applicant’s appeal against sentence had that appeal been brought on the basis now sought to be advanced in this Court is a matter of speculation.  No part of the applicant’s case is to suggest that the sentence of six months’ imprisonment was outside the permissible sentencing range for the offence of assault occasioning actual bodily harm to Mr Reynolds, accepting the offence of causing grievous bodily harm to Mr Pridham not to have been committed.

In those circumstances, the interests of justice do not appear to me to compel the grant of special leave to appeal and the case does not present as a particularly appropriate vehicle for considering the scope of s 37O of the Supreme Court Act.

Accordingly, I am not satisfied that there are very strong grounds for concluding that special leave to appeal would be granted, let alone that the appeal would be allowed.  I propose to dismiss the application for a stay of the sentence and for bail.

The application for special leave to appeal should be dealt with as soon as practicable.  The submissions of the parties were completed yesterday with the filing by the applicant of his reply.  I propose to make an order dispensing with the need for filing an application book.  That will have the effect of allowing for the expeditious consideration of the application for special leave to appeal.

The orders I propose are:

1.The summons is dismissed.

2.The operation of rule 41.07 of the High Court Rules 2004 (Cth) is dispensed with.

I publish my reasons.  The Court will now adjourn.

AT 9.28 AM THE MATTER WAS CONCLUDED