Gas v The Queen, SJK v The Queen

[2004] HCATrans 86

[2004] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M273 of 2003

B e t w e e n -

GAS

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M275 of 2003

B e t w e e n -

SJK

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 MARCH 2004, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR I.D. HILL, QC:   If the Court pleases, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant, GAS.  (instructed by Jones Dowling McGregor)

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MR T. KASSIMATIS, on behalf of SJK.  (instructed by Victoria Legal Aid)

MR P.A. COGHLAN, QC:   If the Court pleases, I appear with my learned friend, MS C.M. QUIN, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Mr Hill.

MR HILL:   Thank you, your Honour.  The appellant, GAS, and his co‑appellant, SJK, aged at the time 16 and 15 years respectively, were induced to and did plead guilty to one count of manslaughter.

HAYNE J:   Well, the notion of inducement is a large one to open with, Mr Hill.  That suggests it is not a voluntary plea.  Is that what you are putting?

MR HILL:   No, your Honour.  What I am putting is when one looks at the circumstances of what occurred the previous day, both accused having been arraigned on one count of murder, having pleaded not guilty, there having been discussion before the learned judge, there being clearly a jury trial in contemplation, that the learned Crown Prosecutor indicated to the judge that there were to be pre‑trial applications in respect to the admissibility of the record of interview and, more importantly, in respect to an application for separate trials.  That application, in our respectful submission, on the circumstances of the factual basis of this case, could not be said to be one without hope, bearing in mind the principles enunciated by this Court in Darby and in other cases regarding separate trials, the case against GAS being significantly different from and weaker than the case against SJK.

KIRBY J:   Could you tell me why the appellants are named by their initials?  I assumed that it might be because there was a sexual element in the crime and they are under age.

MR HILL:   I think it is the latter, your Honour, that their age, as children, was ‑ ‑ ‑

KIRBY J:   Are they still children?

MR HILL:   They are not still children.

KIRBY J:   Why should they be named in this Court by their initials?

MR HILL:   Certainly, we have no submission one way or the other.

KIRBY J:   We had this before in a case from South Australia, I think.

GLEESON CJ:   The matter comes to this Court by the same title as it bore in the courts below, and at the time of the proceedings at first instance they were children, were they not?

MR HILL:   Indeed, they were.

GLEESON CJ:   That explains the title of the proceedings.

MR HILL:   Yes.  As I said, GAS was 16 and SJK was 15.  That is why they were given the initials rather than to identify them by name.

KIRBY J:   Well, I have raised with you without notice.  Perhaps you can give a bit of thought to it, but if the parties have nothing against it I think they should be named by their names, as happened in the South Australian case.

MR HILL:   Perhaps if I could consider that and hereafter I will refer to them by their surnames, if that be appropriate.  What we were submitting is that on the day preceding the plea that was entered of guilty to the manslaughter, they had pleaded not guilty, the trial was in contemplation, and it had been foreshadowed that there were to be separate trial applications.  Before the plea of guilty to manslaughter was entered, the learned Crown prosecutor indicated to the primary judge ‑ ‑ ‑

KIRBY J:   Something seems to have happened to the sound, Mr Hill.  It was going perfectly well at the beginning and then you spoke and the sound disappeared.

MR HILL:   I am not certain whether it was I, or whatever.  If it has made it difficult, your Honour, we will do our best and I will try and speak up so nothing is lost.  Prior to arraignment on the new presentment, the presentment for manslaughter, the learned Crown Prosecutor at page 70 of the appeal book explained to the primary judge that before formally filing over the new presentment - can I just make this brief explanation at line 19:

this has been a difficult forensic case, as Your Honour would no doubt be fully aware from the material . . . 

MR HICKS:   In particular there was no plan to kill the deceased prior to entry into the house, and you have the extraordinary situation of [SJK] saying he was there and it was [GAS] who did the killing, and you then have the further extraordinary situation of [GAS] saying he wasn’t there at all, and there are certain, complete and difficult forensic problems with that scenario.

HIS HONOUR:   I can also inform Your Honour the deceased’s family are in court . . . 

What I propose to do, Your Honour, is to file the presentment, but again if I could just indicate the following:  it has been indicated to us that each accused will plead guilty to this presentment, and it has also been indicated to us that each accused, through their counsel, will not be urging upon your Honour, in terms of the sentencing process, that either is appropriate for a youth training centre order.

KIRBY J:   That was relevant to the maximum penalty that could be imposed in a youth training centre.

MR HILL:   That is so.  The maximum penalty able to ‑ ‑ ‑

KIRBY J:   Three years.

MR HILL:    ‑ ‑ ‑ is three years.  The prosecutor returns to that topic at page 83, and we think it is illustrative.  At line 8 on page 83, the prosecutor said:

MR HICKS:   In the likely event that Your Honour hands down a head sentence/minimum sentence, Your Honour may be aware that both accused then go immediately into the adult prison system.  They are then immediately assessed by the Adult Parole Board.  Pursuant to the Children and Young Persons Act they remit them or transfer them back into the youth training centre situation.  The distinction ‑ ‑ ‑

HIS HONOUR:   Until they are what?

MR HICKS:   21 or 20, Your Honour.  The situation however is this, Your Honour: on any view of it the distinction is if Your Honour were to sentence them directly to a youth training sentence order they can be relased at any time, Your Honour has no say in that matter.  If Your Honour gives them a fixed term of two or three years, that way they have to be held for the minimum term that Your Honour orders.

HIS HONOUR:   Yes.

MR HICKS:   As I indicated to Your Honour prior to arraignment, my learned friends don’t object that that’s the proper way this case should be disposed of.

It is clear from those passages and from the passages at pages 74 and following of the appeal book, where the prosecutor opens to the learned primary judge, by way of preliminary comment, comments regarding sentencing, that the accused are to be placed at the lowest common denominator; that is, they are aiders and abettors, that is, the Crown cannot point to who was the principal offender.  Authority for that can be found in Bannon’s Case, which we will give Your Honour a copy of, and which we will expand on if time allows.

I just, for preliminary purposes, indicate those matters to your Honour so that your Honour is familiar with the way the matter is to be approached. As a result of discussions I have had with my learned friends, no one in particular would be pointing the blame at the other on the basis that one or other of them, at the very least, aided and abetted the other.  The situation is, your Honour, we would never be able to point out in the circumstances of this case who actually physically did the killing and then went on to describe that here ‑ ‑ ‑

GLEESON CJ:   Just before you pass over the next couple of lines, the basis of the manslaughter was “unlawful and dangerous act”.

MR HILL:   That is so, Your Honour.

GLEESON CJ:   What was the unlawful and dangerous act?

MR HILL:   The unlawful and dangerous act, as explained later by another prosecutor who came to conduct the plea hearing, was the act, as he explained it, of placing the hands or hand around the neck of the deceased.

GLEESON CJ:   Placing them around the neck of the deceased and squeezing?

MR HILL:   And squeezing.

GLEESON CJ:   Yes.

MR HILL:   The cause of death was strangulation although the pathologist could not rule out a smothering by a pillow.

GLEESON CJ:   So the basis of the plea was that in each case each was admitting being present and either assisting or encouraging placing the hands around the victim’s neck and squeezing.

MR HILL:   We say that it does not go quite that far, but it may, because to be guilty of aiding and abetting in a manslaughter an unlawful assault would be sufficient if that was happening.

GLEESON CJ:   But here we know what the unlawful and dangerous act was, and it was as you have just described it.

MR HILL:   Yes.

KIRBY J:   There is no suggestion that any third party was involved.

MR HILL:   There is no suggestion that there was a third party.

KIRBY J:   There is no doubt that the deceased died.

MR HILL:   That is so.

KIRBY J:   And as a result of the application of pressure to her neck or other form of asphyxiation ‑ ‑ ‑

MR HILL:   That is so, your Honour.  We know those facts.

GLEESON CJ:   In relation to the admission of being present and assisting or encouraging, what, if any, significance attaches to the other injuries that were suffered by the deceased?

MR HILL:   We say none.  We say that for this reason.  On the circumstances, it was not possible to say whether one or both of the accused had been present throughout the attack on the deceased.

GLEESON CJ:   Do you mean there was a practical possibility that presence might have been at the time of the strangulation but not at the time of the other activities?

MR HILL:   Indeed, your Honour, especially in view of the reason that the two went to the house, that is, to search it, to seek money, and the later evidence that the house had the appearance – not only the bedroom, but the house had the appearance of having been searched or ransacked.  We say allied with that point there is another very important point in this case, and that is what might be said to be the sexual assault, because it seems without question that the Court of Appeal found both appellants responsible for the sexual assault, if there was one. 

The sexual assault has an interesting genesis in the material.  Initially, as the papers reveal, there was a four count presentment, that is a presentment prior to the count of murder.  On that presentment there was a count of sexual assault but the Crown chose to file over a one count presentment of murder – at page 56 of the appeal book.

KIRBY J:   I do not quite understand the significance of that last comment.

MR HILL:   By filing over, the Crown extinguishing the presentment that contained the count of indecent assault, that is, the Crown are choosing to proceed on one count only, being a count of murder.

GLEESON CJ:   I am just having a little difficulty with your proposition that you can, as it were, clinically separate the act of strangulation from the other activities.  Do not the other forms of attack on the victim form part of the context in which the act of strangulation occurred?

MR HILL:   They may, but the other accused may not have been present at that time, or aware of it.

GLEESON CJ:   Over what period of time did these assaults take place?

MR HILL:   It is not possible to say from the material, although there are suggestions from the Court of Appeal that it was a prolonged and savage assault.

GLEESON CJ:   Well, the word “prolonged” is relative.

MR HILL:   Indeed, your Honour, as all these concepts are.  What we say is that the plea agreement that was struck and the plea itself, in respect to the appellant GAS, was to only the necessary elements for the crime of manslaughter on the basis that he was aiding and abetting, as the learned prosecutor said, at the lowest common denominator.

GLEESON CJ:   That is, aiding and abetting.  That is to say, assisting or encouraging.  That is what aiding and abetting means.

MR HILL:   It does, indeed.  But in the circumstances of this case, whereby two agree to, in effect, commit a burglary on a house, that they are aware that there is an occupant, that they are aware that she keeps the money in her bedroom, that she may wake up – if one assaults her and the other is present and continues, for example, to search the house, it must be said that he would, in those circumstances, be aiding and abetting the act that causes the death of the deceased and by not countermanding what the other is doing by not withdrawing.

GLEESON CJ:   “Doing” being strangulation?

MR HILL:   Yes.

KIRBY J:   This is not a legal fiction.  It is not that he is guilty and pleading guilty to manslaughter on the basis that he was present in the whole enterprise.  He concedes, by his plea, that he aided and abetted the actual act of strangulation.

MR HILL:   He must.

HAYNE J:   But earlier, in answer to the Chief Justice, you put, I think, the proposition that the plea agreement involved acknowledgment of no more than the bare minimum of the elements.  That is part of it.

MR HILL:   That is so.

HAYNE J:   Acknowledgement of no more than bare minimum.  But it seems – I think I am right – that there is a correlative to that proposition, namely, what, that the prosecution could not go beyond the bare minimum elements?  Is that the correlative?

MR HILL:   That is so.  Indeed, counsel for GAS during the plea, because his Honour expressed some trouble with the plea entered by GAS, because there were no admitted circumstances by him, because the evidence indicated that he had said – albeit it may be a lie – that he was not present ‑ ‑ ‑

GLEESON CJ:   But the plea admitted that that was a lie.

MR HILL:   The plea admitted that that was a lie.  The plea admitted the essential elements of the offence and the plea empowered the sentencing judge to sentence him.

HAYNE J:   But did it empower the sentencing judge to determine facts beyond the bare minimum elements necessary and sufficient to constitute admission to manslaughter?

MR HILL:   We say no, and we say that the learned sentencing judge acted in accordance with the agreement – the bargain, if one likes – struck with the prosecution and sentenced accordingly, and that he also sentenced accordingly with the circumstances, the facts of the case, as known, and in accordance with the law.

GLEESON CJ:   But the circumstances of the case included not just that she was strangled, but that the victim was strangled in the course of an extremely violent attack.

MR HILL:   That is so, but it still cannot be said – and it is not a legal fiction.  Even if it was, it was the basis on which they entered their pleas.  They were pleading to the minimum level of culpability, if one likes, and their plea meant no more than an admission to the minimum essential elements for the crime.

KIRBY J:   It is a pretty unsatisfactory procedure, it seems to me, with all respect to everybody involved.  Undoubtedly, somebody was strangled and it did not happen by accident.  It happened, presumably, by the act of one person as principal perpetrator.  Both of the accused say they were not that person, but one of them was.  The judge is then asked to proceed to sentence them on some hypothesis that they had some lesser involvement.  One of them, approaching even the plea bargain after it had been struck, went to give his plea and at first pleaded not guilty.

MR HILL:   Yes, that was GAS.

KIRBY J:   And then, subsequently, somehow or other changed his mind and pleaded guilty.  The whole thing tends to bring up the system of the administration of justice into disrepute, it seems to me, because somebody is getting off very lightly and maybe somebody is getting off unjustly severely.

MR HILL:   That is so, your Honour, and it may be in one case the Crown struck a good bargain and in one case they struck a bad bargain.

KIRBY J:   Yes, but they do not do this as a package deal.  We act on a hypothesis of individual justice in our system of law.

MR HILL:   But it was done, and it was done, we say, at the instigation of the Crown and we say that the reason that the Crown did it was because of the practicalities of the matter to charge ‑ ‑ ‑

HAYNE J:   That is to inject into it elements that seem to cut across some quite fundamental principles.  First, are we to proceed on the proposition that the pleas are voluntary?

MR HILL:   Yes.

HAYNE J:   Therefore questions of inducement, giving up chance of trial and the like may be important forensic flourishes, but the irreducible fact is there is a voluntary admission in formal terms to the offence.  Now, at the core of your argument seems to be the proposition that the agreement struck between prosecutor and accused can limit the facts taken into account by the judge in performing the public function of sentencing.  Is that a fundamental premise for your argument?

MR HILL:   No, it is not, your Honour, for a number of reasons.  The first is that a plea of guilty, once entered, is provisional until the time that sentence is passed.  The trial judge could have said “I am unhappy with this process, I do not accept it” and the accused could have been put back into the position that they were in before they pleaded guilty to manslaughter.

KIRBY J:   And then it would have been for the jury to determine who, if either, was guilty and in the way in which the case was presented on the plea it would have been one or other might have been convicted of murder and the other of manslaughter.  But the jury would sort that out in the usual way, including by the appearance of the accused, the assessment of any police record of interview, all of the facts of the case, just how their intuitive judgment led them to it.  Or they might ultimately say, “We can’t decide which one of them did the strangulation”, but these problems have been sorted out for 800 years by juries of lay people.  Here the judge is invited to act on a hypothesis which has in it an inherent false premise, namely that one of them was not the principal perpetrator of the strangulation.

MR HILL:   We say to that, your Honour, this.  Plea agreements are a normal everyday part of the criminal justice system in this country.  They serve a very important purpose.  Secondly, the Crown here clearly - because of the foreshadowed application for separate trials and the very sound basis on the material that one could foreshadow such an application and predict with some success that it would be granted - we say, simply feared that there would be two trials which may mean that both accused would be acquitted, acquitted of everything.

So they struck a bargain with the accused, that is you can plead guilty to manslaughter.  But in doing so, we say that the sentencing judge had regard to the principles enunciated by this Court in Olbrich.

GLEESON CJ:   But the obligation of the sentencing judge was to find the facts, and he was to do that on the basis of the evidence and the admissions.

MR HILL:   That is so.

GLEESON CJ:   The admissions implicit in the pleas of guilty.  Now, the factual basis on which he was to sentence included, favourably to your client and Mr Richter’s client, that the killing was unintentional.

MR HILL:   Yes.

GLEESON CJ:   And, unfavourably to your client and Mr Richter’s client, that both of them were present and one of them did it and the other one was assisting or encouraging it, the “it” being the strangulation, and perhaps strangulation in the course of a wider violent attack.  For the purposes of sentencing on that basis, why would it have mattered which one of them did the actual strangulation if it is admitted that the other one was there assisting and encouraging?

MR HILL:   If we leave aside the agreement that ‑ ‑ ‑

GLEESON CJ:   We have passed beyond the agreement.  We have got to the obligation of the sentencing judge to find the facts on the basis of the evidence and the admissions.  If the admissions included an admission that your client was there assisting and encouraging the act of strangulation in the course of a violent attack, why did that make your client less culpable than the person who actually did the strangulation?

MR HILL:   Because he is merely assisting, and his assisting may be no more than his mere presence and failure to countermand what the other is doing.  That must make him, in our respectful submission, much less culpable than a principal offender.

KIRBY J:   But that suggests differentiated sentences of the two, and the judge could not really do that.

MR HILL:   Indeed, that was the difficulty.  That is why the Crown put it as they did, that they both had to be treated at the lowest common denominator as aiders and abbetors.

KIRBY J:   Well, the Crown may have its interest in securing the saving of public costs, which I regard as a proper matter in the taking of pleas and the conclusion of the matter, the finality of the proceedings and the package deal, as I have described it, and you had the interest perhaps in avoiding the resolution against your client of the big question, and securing what you thought was the advantage of the uncertainty that was left in the plea, but these are your interests.  The judge has to protect the public interest, which cannot just accept package deals and cannot deal with the matter, it seems to me, without making some determination of the facts in order to impose a just sentence.  Now, we are not here being asked to permit the withdrawal of the plea or anything of that kind.  We are simply asked to consider whether the Court of Appeal erred.

MR HILL:   It is too late to withdraw the plea and to go back to square one, so to speak.  The appellants were interviewed for the purposes of a presentence report, made some admissions – GAS an admission as to presence – a report by a clinical psychologist to whom he had made admissions. 

GLEESON CJ:   But the Court of Appeal were correct to say, were they not, that an aider and abettor is not necessarily less culpable than a principal offender?

MR HILL:   Yes, indeed.  We say that there is no quibble with that proposition, but that is a proposition that can only apply where the circumstances are known.  If you know what the principal is doing, you know what the aider and abettor is doing, you can differentiate.  In some cases, as the Court of Appeal, we would say, unhelpfully posited, the aider and abettor may be more culpable.

GLEESON CJ:   A manipulative or a dominating aider and abettor could be more culpable than a principal offender.

MR HILL:   Indeed, but that was not the circumstances here, putting aside the plea agreement and the meaning of the plea.  The circumstances were not such to permit, having regard to the principles in Olbrich, a judgment on that matter at all.  So the Crown, in recognition of that, and the learned sentencing judge, we say, rightly, in recognition of those facts and the law, treated them at the lowest common denominator as aiders and abettors, and in doing so acted accordingly to good principle.

GLEESON CJ:   He treated them as aiders and abettors, no more and no less.

MR HILL:   As aiders and abettors, yes.  Now, by the time it gets to the Court of Appeal, we say, clearly, the Crown has changed its stance and the Court of Appeal, in effect, moves the goal posts.  The level of culpability, from the minimum possible level, is elevated to an extremely serious level of culpability.

HAYNE J:   Now, implicit in that pair of propositions seems to be the proposition that the plea agreement limits the facts which the primary judge may find, because when you speak of “moving the goal posts” that seems to be what is encompassed by that proposition.

MR HILL:   No, your Honour.  What we say to that directly is this.  The plea of guilty does not limit the sentencing judge.  The sentencing judge may act as he sees fit ‑ ‑ ‑

HAYNE J:   And may make whatever are the relevant findings of fact. 

MR HILL:   But before he rejects the plea agreement, he will give the parties notice, so that, for example, they could call evidence, or, alternatively, they could withdraw the plea of guilty.  Once he accepts the facts and proceeds to sentence, those facts are set in concrete.  They cannot be changed, because if they were changed people who have pleaded and been sentenced in our courts would find, on a Crown appeal, not only that they are exposed to double jeopardy, but that they are exposed to triple jeopardy.

GLEESON CJ:   Mr Hill, can I ask you a procedural question about what occurred at first instance.  Was there an agreed statement of facts?  Where did the judge get evidence, for example, of the death of the victim?

MR HILL:   The judge had a copy of the autopsy report and, presumably, had a copy of the depositions.

GLEESON CJ:   Where did he get evidence of the fact that there was a robbery under way?  In other words, there are many facts that were found by the sentencing judge and by the Court of Appeal that are not implicit in the plea of guilty and there is no argument about them, but I am just asking where do they come from.

MR HILL:   The learned prosecutor opened the matter fully to the judge.

GLEESON CJ:   You mean they came from the Bar table.

MR HILL:   Much of it came from the Bar table.

HAYNE J:   It is at pages 86 to 98, is it not?

MR HILL:   That is so, yes.

HAYNE J:   And there is a recitation of facts by the prosecutor there including, for example, at 98, referring to ransacking, so the facts are detailed but it was on that factual basis that the matter went forward, is it not?

MR HILL:   That is so.

GLEESON CJ:   So the procedure adopted was that the facts were stated from the Bar table by the prosecutor and either expressly or impliedly acknowledged to be correct by counsel for the accused.

MR HILL:   That is so, your Honour, and that is, in our experience, a fairly normal practice with the addition that the judge had some extraneous material.  Clearly, he had looked at the videotape records of interview and he had a copy of the pathologist’s report, but essentially the facts are as opened by the learned prosecutor.

GLEESON CJ:   What was the relevance of the prosecutor’s description, for example, on page 90, of the state of the body of the victim?

MR HILL:   He was relating the objective facts.

GLEESON CJ:   Yes, the objective relevant facts, presumably.

MR HILL:   The objective facts. He was not saying ‑ ‑ ‑

GLEESON CJ:   Did anybody, for example, say “Hang on.  I object to those facts being stated, they are not relevant”?

MR HILL:   No, your Honour, the practice is that all of the objective facts are related.

GLEESON CJ:   Do you accept that the facts stated throughout page 90 were relevant?

MR HILL:   They were relevant in the sense that the deceased suffered those injuries.

GLEESON CJ:   What is the relevance of that?

MR HILL:   It simply indicates the way in which she died.

GLEESON CJ:   It indicates the context in which the strangulation occurred.

MR HILL:   Perhaps the context, but the culpability of the two accused was not linked to the objective facts in total.  Perhaps it can be best illustrated in respect to the sexual assault.  The sexual assault was a matter that was open to the judge at page 90, but not as a sexual assault.  It was said at line 18:

There was also bruising around the vaginal area which Dr Dodd said was consistent with pressing fingers.  That is at page 16 -

clearly referring to ‑ ‑ ‑

HAYNE J:   And it is amplified at 98 because the judge asks specifically, at line 18 of 98, what was said about that subject matter and it is amplified at 98 over to 99.

MR HILL:   Yes, and the prosecutor simply says there were injuries there, that is as far as we can take it.  He was not saying it was a sexual assault.  He was not attributing it as a sexual assault to one or other of the accused and nor could he, we say, and quite correctly having regard to principle and proof and to the fact that they were not presented on it and it was not part of the plea agreement, and also in respect to the principles in De Simoni’s Case.

What the Court of Appeal do, we say, is fail to have any regard to the way in which the matter was initially litigated between the parties, the conduct of the Crown.  The Court of Appeal had no regard to that.  In fact, they make statements, one, which are wrong and, two, which indicate a lack of understanding, with respect, of the material.

HAYNE J:   Mr Hill, a difficulty seems to me to be this, that if your first proposition that the plea agreement involves confining the prosecution to the bare minimum facts necessary to establish the offence, there has been a very considerable departure from it in the way counsel for the Crown opens it to the judge at pages 86 and following.

MR HILL:   Only in the sense that he relates the objective facts, not in the sense that he tries to pin those objective facts as culpability on either of the accused.  Clearly the learned sentencing judge was not confused about the matter, or was clear as to what his task was, because he sentences them in respect to, in effect, what the agreement was and what the plea meant, not the entirety of the attack, including the sexual assault, but to their culpability as aiders and abettors on a minimum level being one who is present and encouraging, perhaps not effectively encouraging, or not countermanding.

GLEESON CJ:   Could you just explain in a little more detail the hypothesis on which your client might have been present at the strangulation but not at the attack?

MR HILL:   Well, we seem, with respect your Honour, to have elevated this to a strangulation.  It was not quite that clear.

GLEESON CJ:   Well, you said earlier placing the hands around the neck of the victim and squeezing.

MR HILL:   That may have been the mechanism of death; it may not have been.

HAYNE J:   That is what the Crown said at page 99, line 31.

MR HILL:   Certainly, but the pathologist at page 90, where the Crown is quoting from the post-mortem of the deceased:

The cause of death was asphyxia by manual neck compression.  Although he was unable to exclude the possibility that there was some element of smothering shoved in the mechanism of death, the pathologist, Dr Dodd, told the committal court that the main thrust of the cause of death here is one of strangulation.

GLEESON CJ:   But bearing in mind that the plea of guilty admits presence at the act that caused death and either assisting or encouraging the act that caused death, on what basis might the sentencing judge have found that there was presence during part only of the attack on the victim?

MR HILL:   Clearly with the plan to ransack or search the house for money.  He may have been in another part of the house at the time of the onset of the attack.

GLEESON CJ:   Just a moment, the hypothesis is that he is assisting or encouraging the act that caused death, right?

MR HILL:   He only need walk in during that moment ‑ ‑ ‑

GLEESON CJ:   And then do what – do or say what?

MR HILL:   We say if he was to say nothing, that is, if he was not to countermand what was going on but simply to remain there or, alternatively, to continue with the search for money, that that would make him guilty of aiding and abetting the offence of manslaughter.  The matter developed in this way – and if I could perhaps usefully take your Honours to one of the authorities which in part, we say, assists with some of the queries this morning.  It is the case of R v Duong.  It is a decision of the Victorian Court of Appeal, a judgment of her Honour ‑ ‑ ‑

KIRBY J:   What is the principle that you are citing this case to uphold?

MR HILL:   The principle in the case was that the judge, in venturing beyond the agreed facts without first alerting the parties that he was proposing to do so, was in error.  Her Honour ‑ ‑ ‑

KIRBY J:   Now, can I just get clear, is that within the limited grounds of appeal that have been allowed to this Court?

MR HILL:   We say, squarely, it is.  Here the limited grounds of appeal are really two:  (a) permitting the Director of Public Prosecutions to conduct his appeal in a manner contrary to the plea agreement reached with the defendants at the trial ‑ ‑ ‑

KIRBY J:   There is no separate ground directed to procedural unfairness, based upon the way in which the Court of Appeal went about the re‑sentencing process?

MR HILL:   There is no separate ground of appeal ‑ ‑ ‑

KIRBY J:   Well, they were faced with a Crown appeal which was complaining that the sentence imposed by the sentencing judge was manifestly inadequate, and that that was the error that authorised the Court of Appeal to set it aside and re‑sentence.  So it was within everybody’s mind that that was what they were there before the Court of Appeal doing.  How can you say there was a procedural unfairness here?

MR HILL:   The difficulty, we say, is this, that the Court of Appeal had no regard to the conduct of the Crown before the sentencing judge.  Indeed, the Court of Appeal seems to have misunderstood what was occurring at the time of the entry of the plea of guilty to manslaughter.  Firstly ‑ ‑ ‑

KIRBY J:   They said they had read and re‑read the transcript a dozen times.

MR HILL:   Yes.

KIRBY J:   So it is pretty hard to think that they were not aware of what was debated before Justice Bongiorno.

MR HILL:   It is interesting, in that sense, that they say that on the occasion when the appellants pleaded not guilty to murder, there was a discussion regarding having a view, and the trial was adjourned to the next day.  But what they failed to mention was the fact that there was discussion regarding separate trials and/or the admissibility of the records of interview; clearly, two key matters in the circumstances of this case which promoted what occurred the subsequent day, on the day of the entry of the plea to manslaughter. 

In addition, the Court of Appeal say that they are unclear as to why the matter was approached in the way that it was before the sentencing judge, which would tend to indicate that they had misunderstood what had been said by the parties to the judge as to the plea agreement.  There is no mention made by the Court of Appeal of the plea agreement at all, nor do they say that they take it into account.

KIRBY J:   We have seen cases in this Court – Weininger was one – where there is an agreement between the prosecutor and the accused.  Some pains are then taken to reduce the facts upon which the judge is asked to act to a written document, so as to avoid the sorts of problems that we are now facing.  Is that not a practice in Victoria?

MR HILL:   It is a practice from time to time.  We do not, with respect, shy away from the fact that it probably should have been done here.  It was not done here, but can we add this quickly ‑ ‑ ‑

KIRBY J:   Because it is fair to the accused as well.  They then have to face the fact that these are the matters to which their plea will lead.  The most important persons in the criminal trial – as far as I am concerned – are the accused and the families of the victims.

MR HILL:   Indeed, your Honour.

KIRBY J:   That being the case, most accused will not know the legal principles concerning what they are actually letting themselves in for by the plea of guilty to a particular charge.  The obligation to put it in writing, as agreed facts, makes their counsel concentrate on what the consequences are, and that then is something that can be communicated to the accused so that they know what their plea entails.  Instead of us trying to sort it out now, it is done at the proper moment.

MR HILL:   More so when one is dealing with children as young as 15, 16 years of age.

KIRBY J:   Exactly, there are added responsibilities here to counsel.

MR HILL:   The only thing that we can say here is that the agreement was openly exposed, laid open, before the sentencing judge.  He is told about it, the particulars are there, and there does not seem to be any dispute between the appellants here and the respondent as to the nature and the terms of that agreement.  Clearly, those two children would have believed, as a result of what was being said, that they would receive a lesser sentence than a principal offender and as a result, they pleaded guilty.

KIRBY J:   Anyway, you were taking us to Duong.

MR HILL:   Yes.  In Duong, her Honour, Justice of Appeal Kenny as she then was, canvassed the authorities relevant at page 77, commencing with the proposition at line 8:

The authorities establish that a sentencing judge is not bound by an agreement between the parties as to the facts which are to form the basis of a sentence to be imposed.

And I think your Honour Justice Hayne was asking questions as to that before.  As your Honour Justice Kirby, as President Kirby in the New South Wales Court of Appeal, observed in Chow v Director of Public Prosecutions:

[A sentencing judge is not obliged] passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused.  The judge’s sentencing discretion is to be exercised in the public interest.  Even where the prosecution and the accused are agreed, they cannot fetter the judge’s performance of the judicial function by their plea bargaining: . . . 

 . . . 

A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes.  The judge may feel the need for further material, for example, by way of pre‑sentence report to assist in the performance of the sentencing function.  The parties cannot forbid the judge to seek such assistance.  They have their respective functions to perform.  But they cannot invade the judicial function any more than the judge may invade their functions;

 . . . 

In the protection of the public interest and the performance of the judicial function in sentencing, the judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing.  But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that required by the essential ingredients of the offence and agreed between the parties when the parties when the please was taken: . . . 

As the Court of Criminal Appeal said in R v Mielicki, Whitman and Poniewaz (1994) 73 A Crim R 72 at 79:

The principles enunciated seek to strike an appropriate balance between the public interest in ensuring that persons guilty of criminal offences acknowledge that guilt and the public interest in ensuring that such pleas of guilty adequately reflect the level of criminality of such persons.  The principles are further designed to ensure that accused persons induced to plead guilty pursuant to an agreement with prosecutorial authorities are accorded procedural fairness.

It was in that sense that we would use the word “induced”.  Her Honour went on to say:

Procedural fairness requires that if a judge proposes to depart from an agreed statement of facts which has formed the basis of a guilty plea, and to rely instead upon facts which are not contained in, or to be inferred from, the agreed facts, the judge should inform the parties in order that they may be given a sufficient opportunity to challenge the material on which the judge is proposing to rely and, if appropriate, to withdraw the plea.

KIRBY J:   Can you point to the passage in the Court of Criminal Appeal reasons which you say exhibits the procedural unfairness of which you are complaining?

MR HILL:   Firstly, it is the rejection of the application of Bannon and Calder to the sentencing of the appellants, that is, that they fell to be sentenced not as principals, but as aiders and abettors with a lesser degree of culpability.

GLEESON CJ:   Where do you get that requirement of a lesser degree of culpability?

MR HILL:   From Bannon and Calder itself. 

GLEESON CJ:   What is the reference to that, Mr Hill?

MR HILL:   The reference, your Honour?

KIRBY J:   Bannon is not reported? 

MR HILL:   It is not reported, your Honour.  It is in our authorities.  It is an unreported decision of the Victorian Court of Criminal Appeal, 21 September 1993 ‑ ‑ ‑

GLEESON CJ:   Am I right in thinking that two of the members of the court in Bannon and Calder were members of the court in this case?

MR HILL:   Yes, that is so.

GLEESON CJ:   Where do we see the passage?

GUMMOW J:   Page 272.

MR HILL:   Thank you, your Honour.  It is perhaps convenient to start at paragraph 45 on page 272.  This is what the Court of Appeal says in its judgment:

It is convenient to mention at this point that the prosecution had put to the sentencing judge that the respondents should be sentenced on the basis that there was “a principal offender” who individually perpetrated the vicious assaults upon the deceased and that the level of involvement of the other respondent present was that of an aider and abettor.  Why the matter was approached in this fashion by the prosecutor is unclear in a case in which the precise circumstances surrounding and leading to the death of the deceased could not be determined.  As we understand the evidence, no conclusion could be drawn as to whether one or both of the offenders had attacked her. 

Each of the respondents had, through his plea of guilty, in effect accepted that he was responsible for bringing about the deceased’s death by reason of his involvement in the commission of a savage and sustained assault upon her.  It is to be observed that reference was made in that context to the judgment of this Court in R. v. Bannon and Calder.  In that case, after a relatively lengthy trial had been conducted, the sentencing judge found himself unable to “discern any distinction in the role played by each of the applicants in a case where admittedly there was a distinction”.  This meant, the Court held, that each of the offenders had to be treated as bearing the culpability of an aider and abettor in circumstances where involvement at that level was to be regarded as attracting a lesser penalty than that which would ordinarily be anticipated to be imposed upon the principal offender.  The factual premises upon which the reasoning of the Court was based in that matter were not present here.

So from that, we say, flows this.  The Court of Appeal rejected the application of Bannon and Calder to the circumstances of the case before it, but it was the application of the principles of Bannon and Calder that had been inbuilt into the plea agreement, that the two accused were to be treated as aiders and abettors, not principals, and because of the reasoning of Bannon and Calder they were to receive a lesser sentence. 

In Bannon and Calder the difference from here was there were two deceased, both of whom had been stabbed in the chest and throat.  Clearly there was a principal offender, but in the circumstances here there may well have been a principal offender.  The injuries to the deceased bespeak largely of one offender, if one looks at the injuries as outlined objectively by the learned prosecutor.  The injury to the back, she has fallen out of bed, the injuries to the chest where someone has fallen on her or kneeled on her, the injuries to the head, all equally consistent, we say, with one offender. 

To be satisfied of anything else one would have to be satisfied beyond reasonable doubt if you were to pin the responsibility of a principal offender on both.  So we say, firstly, that the Court of Appeal wrongfully rejected in this case the application of Bannon and Calder, secondly ‑ ‑ ‑

GLEESON CJ:   Which is the passage in Bannon and Calder on which you rely?

MR HILL:   At page 36 of the unreported judgment.

HAYNE J:   Which is at page 24 of the print we have, I think.

MR HILL:   It commences with the words:

Nevertheless, his Honour’s very inability to discern any distinction in the role played by each of the applicants in a case where admittedly there was a distinction must mean that for sentencing purposes each applicant had to be treated as bearing the culpability of no more than that of an aider and abettor.  This proposition rests upon the premise, which we think in the circumstances of this case to be correct, that such culpability is less than that which would attach to a principal actor.  But the judge manifestly did not so sentence the applicants since he imposed on both the maximum possible penalty, namely that of life imprisonment.

Missing one paragraph, the judgment goes on:

We think that an aider and abettor in such circumstances should have imposed upon him or her a lesser penalty than that imposed upon the principal actor.  Of course, if the role of each offender cannot be determined then it is proper that each receive the same punishment (assuming – as is this case – that there are no factors personal to the offender that require one to be dealt with differently from the other).

GLEESON CJ:   Was life imprisonment the maximum penalty that could have been imposed in the present case?

MR HILL:   In the present case 20 years was the maximum penalty.  In respect to Bannon and Calder in the judgment, the learned sentencing judge uses the exact language of Bannon and Calder.

HAYNE J:   Do you challenge what the Court of Appeal says at paragraph 47, page 273?

MR HILL:   We do not challenge it.  We say, as I think I said, with respect, at the special leave application, that it is unhelpful.  They are there positing a situation where there are known facts, where the roles of the participants are known.  That is not this case.  So it was not grappling, with respect to the Court of Appeal, with the facts of this particular case.

Clearly, there may be cases where an aider and abettor is more culpable than a principal or equally as culpable as the principal, but there are many cases where aiders and abettors would be expected to receive a lesser penalty than the principal.  Bannon and Calder was one.  It is authority for that proposition.  It was quoted to the sentencing judge for that reason.  It was part of the plea agreement and the sentencing judge in his, we say, cleverly crafted and well‑thought‑out judgment sentence employs the very language of Bannon and Calder. 

KIRBY J:   As I understand it, your submission is that although logic and reality and commonsense says that one of these two appellants was the person who actually did the strangulation and the other had a lesser involvement and that that would normally involve a differential penalty, the Crown accepted the pleas of both on the foundation that it was not in a position to prove to the judge as the truth of the matter and as the facts of the case on which the judge could impose his sentence, which was that principal offender, and that that being the case, although it in a sense defies logic, it is consistent with our legal system that, especially in criminal matters and including in sentencing matters, we do not take matters as proved unless they are proved to an appropriate standard and that because that could not be done that though there is an inherent illogicality that one gets off a bit lighter, that is part and parcel of the acceptance of the plea which avoided the public expense of the trial, and all the other disadvantages and costs of going on with it and got the matter over and done with.

MR HILL:   That is so, your Honour.  Once the learned sentencing judge acted and so fixed the terms of the plea agreement they could and should not be revisited by a Court of Appeal to widen them because that would expose an accused person to triple jeopardy in a Court of Appeal.

GLEESON CJ:   Where does the sentencing judge take into account the fact that implicit in the plea of guilty was an admission that each accused assisted or encouraged the act that caused death?

MR HILL:   At page 191 of the appeal book, paragraph 24, his Honour says:

The significant and demonstrable lies which you have each told as to your involvement in this matter means that the Court is unable to determine the events surrounding Mrs Zidan’s death and, more importantly, the part which each of you played in that event.  Your plea of guilty to manslaughter means that each of you has now admitted that you killed Mrs Zidan by an unlawful act which was dangerous.  My inability to discern any distinction in the role played by each of you with the necessary degree of satisfaction in circumstances where there may or may not have been such a distinction means that for sentencing purposes you must each be treated as bearing the culpability of no more than that of an aider and abetter, each of the other.  It is on this basis that you will be sentenced.

At paragraph 36 on page 193, his Honour having said:

The crime of manslaughter carries a maximum penalty of 20 years imprisonment.  You are to be sentenced as an aider and abettor in respect of that crime.  You are accordingly, by statute, liable to be punished as a principal offender.  However, current sentencing practices, to which I must also have regard, require that an aider and abettor should have imposed upon him or her a lesser penalty than that which would be imposed upon a principal offender.  Account has been taken of this principle in the sentence which I am about to impose.

GLEESON CJ:   Is the statement in the second sentence in paragraph 24 accurate?

MR HILL:   No it is not, it is not strictly accurate.  It has to be read together with what his Honour says in the following sentence.

GLEESON CJ:   The admission that followed from the plea was, was it not, that Mrs Zidan died as a result of an unlawful and dangerous act, and that the person entering the plea of guilty was present and at least assisted or encouraged the unlawful and dangerous act.  Is that right?  Is that an accurate statement of what is involved in the admission?

MR HILL:   There does not have to be causation in the aider and abettor with the principal offender.

GLEESON CJ:   Causation, did you say?

MR HILL:   Yes.  I thought your Honour said causation.

GLEESON CJ:   I think what I said was that the plea admitted that Mrs Zidan died as a result of an unlawful and dangerous act, and that the person entering the plea of guilty was present and at least either assisting or encouraging the unlawful and dangerous act.

MR HILL:   In the terms that we discussed earlier, yes, in that that sentence might tend to suggest that each had pleaded guilty as a principal offender that sentence is wrong and that is why I say – or we say – it must be read in conjunction with the next sentence.

Might I return to what I embarked upon before as to where the Court of Appeal erred and I indicated in respect to Bannon and Calder.  We say that they erred further in elevating the culpability of the two offenders, in paragraph 63 on page 280 of the appeal book, where in the last sentence they say:

the level of culpability of each of the two offenders before this Court must be regarded as extremely high.

Now, that is in contradistinction to the way in which the matter was approached and put to the sentencing judge.

KIRBY J:   But why is that not so, because objectively they pleaded that they were present, that they were involved in a direct way in the strangulation.  The objective facts showed that the place had been – that that had occurred in the course of a violent and degrading act on the deceased, who was an old, frail, sick person and in circumstances where one of them had been a visitor to the deceased, welcomed into her home, objectively it was a very high crime on the plea.

MR HILL:   Objectively, but you cannot, we submit, with respect, visit all of what occurred on the accused because of the circumstances of this case where you cannot say whether one or the other – for example, the indecent assault.

KIRBY J:   Yes.  I am accepting that for the moment.  I am accepting that that is the correct way, even though it has the element of artificiality and that that secures for one a lesser approach to punishment, a lesser degree than would otherwise perhaps have been warranted, but it still remains objectively an inescapably very high culpability.

MR HILL:   Yes, but that is not, with respect, what the Court of Appeal is saying.  If they had limited it to objectively this is a very serious crime, there would be no objection.

HAYNE J:   But it has to be read in light of what they say in 62, has it not?  Paragraph 62 is where they are describing a series of circumstances which are taken into account.  Are they going beyond that in what they say in 63?

MR HILL:   In paragraph 62 the court says:

They did not engage in some “spur of the moment” behaviour when they decided to enter the home of the deceased.

HAYNE J:   Yes, go on.

MR HILL:   That is in respect to a burglary.

HAYNE J:   No, go on, Mr Hill.  That is not what they are saying.  Read on.  That is what they are saying, are they not, “the presence of an elderly frail woman and her seriously disabled son”, et cetera?

MR HILL:   Yes.

HAYNE J:   That is what made this a bad case of manslaughter, is it not?

MR HILL:   We say that the objective facts point that way but the level of culpability of each does not.  The level of culpability was placed at a certain level before the sentencing judge.  He induced, if one likes, the plea of guilty.  The Court of Appeal elevated it.  They are not speaking in paragraph 63 of the objective facts; they are speaking of the level of culpability and, indeed, further, at paragraph 64 they say:

There have, however, been few equally serious, and probably no more serious, examples of this offence before the courts of this State for many years.

KIRBY J:   Where is that passage?

MR HILL:   Page 280, paragraph 64.

HEYDON J:   What is wrong with that statement?

MR HILL:   We say that it overstates markedly the level of culpability of these two children in this offence.

KIRBY J:   You say “children”.  I have seen that word used throughout.  Is it really a correct use of the English word, “children”, of your client and the other ‑ ‑ ‑

MR HILL:   Under the law they were children.

KIRBY J:   Yes, but it is a somewhat artificial use of the word.

MR HILL:   It inflates the level of culpability of this 16‑year‑old and 15‑year‑old person.  This is not a case where there were weapons.  This is a case where they had no prior convictions.  This is a case where the compilers of the presentence report spoke with some hope and promise because of their behaviour, with the one exception in custody, towards some rehabilitation.

KIRBY J:   Well, this is ex post.  We are looking at this at the point of sentencing and at that point what has the judge got?  He has got the case of young males who have gone into this home of a person whom one of them at least knew, was allowed into the place, had been there before, she was sick and frail, a disabled son.  The problem I have had in this case from the beginning of my association with it is that I have reached the same view as the Court of Appeal, that the primary sentencing judge’s sentence was just inadequate.

After all, if there had not been this plea bargain and it had gone to trial, one, and possibly both, of the appellants would have been facing a much more serious penalty – possibly life imprisonment.  They got, even by the Court of Appeal’s order, substantial discount – if you like to put that in those terms – for their plea, but it is still a terrible, terrible offence.  I do agree with what the Court of Criminal Appeal said, that the ultimate indignity of the sexual assault upon the deceased, the offence to her human person, was just terrible.  Sentencing judges just have to reflect these things, and if they do not, courts of criminal appeal have to correct them.

MR HILL:   They do have to reflect the seriousness of offences, but they have to do so, with respect, fairly.  You could not say that one or other of the accused was responsible for the sexual assault, nor that one or other was necessarily present when it occurred, if indeed it was a sexual assault.  The Crown did not go to the primary judge saying it was a sexual assault.  We say that once you start, in the objective circumstances, saying “They are very serious”, that may be right, but you must look at the culpability of the individuals who were responsible.  You must, with respect, apply the principles of Olbrich.  If there was to be a finding that one or the other had committed a sexual assault, or had aided and abetted a sexual assault, there would have to be some evidence.  You would have to satisfied beyond reasonable doubt.  The fact that it happened at a time that is not known whether the other person was there, whether he was aiding and abetting that act, it would be unfair, we say, to elevate the level of culpability.

KIRBY J:   Again, it is a factual circumstance that did happen and is objectively demonstrated, so that it cannot be completely ignored, surely.  One or other of these accused – well, I will not go on about it.  I do understand the point you make. 

MR HILL:   That is the conundrum that your Honour spoke of earlier, that sentencing is not a mathematical science.  It is not something that can be exact, but, at the end of the day, there has to be fairness to the accused.  You cannot, with respect, allow a situation to occur where a sentencing judge accepts a plea, accepts the plea on a certain basis, fixes the appropriate sentence, and then the Crown appeals, saying that the whole basis of that appeal was wrong.

KIRBY J:   The problem is the words “fixes the appropriate sentence”, because that is what the Crown contends the judge did not do, that there was error, and that the Court of Appeal was entitled to fix it again.  I looked for whether the Court of Appeal had recognised the principle in re‑sentencing on Crown appeals of fixing something lower than would otherwise have been done at first instance, had the judges of appeal been sitting there, and they did recognise that twice.  It is in the principles and it is in the application of the principles.  So there does not seem to be error in this.

MR HILL:   We say that if you look at Everett’s case that there is error.  The Court of Appeal has not considered how the matter was approached before the learned sentencing judge, nor the significance of it.

HAYNE J:   In that respect you fasten on what is said at 63 and 64 of the Court of Appeal.  How does that sit with what counsel for prosecution said at page 100, lines 7 to 9, where he said that:

this matter must be dealt with as a very serious example of the crime of manslaughter.

Has the Court of Appeal gone anywhere beyond the basis on which it was put to the sentencing judge, page 100, lines 7 to 8?

MR HILL:   We say yes, at paragraph 48 at page  273:

The combination of the two propositions, first that each of the offenders had to be sentenced as an aider and abettor and second, that accordingly a lesser penalty was attracted, put to the sentencing judge by the prosecutor may well have influenced his view as to the proper sentences to be imposed in the present case.  Before this Court, Mr Morgan‑Payler –

for the Crown –

did not attempt to support or justify the application of either of the two propositions.

We say that it was not “may well have influenced” the sentencing judge, it did.  It was expressly designed to influence the sentencing judge and he acted upon it.

HEYDON J:   Is your case, Mr Hill, that the Crown broke its bargain with the accused or that the Court of Appeal ignored the bargain and proceeded as though the bargain was an inappropriate factor.

MR HILL:   It is a three-step process, your Honour.  The first is that there was a bargain entered into.  The Court of Appeal did not have regard to that at all.  Secondly, that the Crown before the Court of Appeal, in effect, reneged on the bargain.  They changed their stance from a simple position that these two were to be sentenced as aiders and abettors and because of Bannon and Calder would receive a lesser sentence than a principal would.  The Crown went to the Court of Appeal and said that the distinction between aiders and abettors and principals was one without meaning, in effect, but there was no difference, elevating the level from what the initial prosecutor said from the lowest common denominator as an aider and abettor up to a higher level.  The third step, your Honour, is that the Court of Appeal either because of what the Crown said or of its own motion, changed the level of culpability by what it said and by the sentence that it imposed, three times the maximum of youth training centre detention.

KIRBY J:   We are told that that is less than what was imposed on the appellants.  Now, I have not analysed that, and all I have to go on is that collection of cases which is referred to in the submissions that were put to the Court of Criminal Appeal.

MR COGHLAN:   But if some person could be identified, that would be an extremely high sentence, your Honour, because it would be so close.  The distinction between such a manslaughter case and murder would be the finest line that you could have.  That is the logic of what was being said about Bannon and Calder, but then, when it came to the legal propositions that were being worked through in relation to the way that the case worked, two members of the court who were members of the court in Bannon and Calder said, “It does not stand for the blanket proposition it is said to stand for, and it does not apply in this case”.

What was really seeking to be done by the Crown, the true thrust of the concession that was said to be made, it is submitted, was that they are aiders and abettors, they are not the principals.  They are to be dealt with as aiders and abettors.  The Crown did not, at any step in the process, actually resile from that proposition and the Court of Appeal, at the end of the day, sentenced them as aiders and abettors.

GLEESON CJ:   Did the primary judge deal with Bannon and Calder?

MR COGHLAN:   I suspect not in terms, your Honour, but he did so at page 191.

GLEESON CJ:   I just wondered whether he elaborated what he said.  He said at 191:

bearing the culpability of no more than that of an aider and abetter, each of the other.

MR COGHLAN:   Those words, your Honour, “of no more than that of an aider and abettor”, appear in Bannon and Calder, so I think it has been taken that that is where that came from.  Whether there is any true distinction between that and what the Crown was saying at the outset of the plea, of at least an aider and abettor, is another matter.

GUMMOW J:   Yes, it is Bannon and Calder at 36.

MR COGHLAN:    Yes, your Honour.  But the basis of no more than an aider and abettor in circumstances where the maximum term of imprisonment for the offence has been imposed bear a somewhat different meaning.  It is submitted that when the court here went back to Bannon and Calder and said, “It doesn’t apply to the circumstances of this case”, that is what they were referring to. 

KIRBY J:   What is the lesson of this case for proper practice, Mr Coghlan?

MR COGHLAN:   That people make it quite clear to courts exactly what it is they are intending to convey.

KIRBY J:   Is there a higher duty on the Crown in that respect as the professional prosecutors who are there all the time representing the community?  I am sorry to put the burden on you, but this is, it seems to me, what would normally be the case because those who represent accused are of varying experience.  I am not talking about this case.  Again, I am talking about the principle.

MR COGHLAN:   Your Honour, I do not resile for a moment from the proposition that the principal responsibilities on those representing the Crown must be so and that they are the professional standards that need to be set.  It is submitted in the present case, however, your Honour, that the Crown did make its position pretty clear in terms of the seriousness of the way the Crown was trying to put this case.  So a bit of reconstruction happens in this case.  We come from what happens afterwards about trying to reconstruct what things meant because the complaint that was made at the time of the appeal, particular (e) after (f), complained of too much weight being given to the proposition that they were aiders and abettors, no more, no less.  That complaint, it is submitted, could still be made good in a general sense, that if great weight has been given to it, even in the existence of some higher principle that principals can get more, that in the circumstances too much weight was given to that proposition because on the true analysis ‑ ‑ ‑

KIRBY J:   That does seem to bear out what Justice Gummow said earlier, this is a case of mutual mistake.  Counsel appearing for the accused appear possibly to have gone into the cell with the accused and said, “Well, look the Crown has agreed to deal with this on the basis of aider and abettor.  That means you will be treated as less than the principal offender because they cannot prove who is the principal offender.  That will mean under Bannon that you will get some discount or allowance for that”.  Then the Crown says in its own private contemplation of the matter, “Well, we know what Giorgianni says.  They will be treated as all the elements in the crime of manslaughter of an aider and abettor, not as a stander‑by, not as a person who is merely there or observing, but as somebody who took part in the strangulation.”

MR COGHLAN:   Not necessarily part in the strangulation, your Honour, but who was present aiding and abetting.  Present aiding and abetting.  You cannot be an aider and abettor without being present.  It is the notion.  That fixed not a low level of responsibility.  If that was what the defence took it to be, then it is just wrong as a matter of law.  Aiders and abettors is not a low level of responsibility.  It happens to be the lowest level in relation to which you can still be a party to the crime, but you are still responsible for the consequences of the crime – here the death.  You still plead to a presentment that says you did kill.  The notion is not one that – and that is where it is submitted it might have gone off the rails, but what it produced was a manifestly inadequate sentence and it was on that basis that the Court of Appeal dealt with it.

GLEESON CJ:   Has there ever been in Victoria the practice that was in existence in New South Wales by statute for some years of sentence indication hearings?

MR COGHLAN:   No, your Honour.

GLEESON CJ:   Is that practice still in force in New South Wales?

MR COGHLAN:   No, your Honour.  It was found, I think, to be too difficult in practical terms.  The difficulty in particular is the basis on which it binds the prosecutor.

GLEESON CJ:   It was an attempt, while it lasted, to overcome this kind of problem, but it was found to have a number of unsatisfactory features, as I recollect it.

MR COGHLAN:   It was also, I think, to speed the plough, your Honour.

GLEESON CJ:   I do not think that was ever acknowledged, but I am not surprised.

MR COGHLAN:   Always great difficulties that follow from things devised within the legal system that make it quicker.

As to the question of what should happen if the appeal should be successful, it is submitted that the matter ought to be remitted, because there is a basis, and plainly a basis, on which the question of manifest inadequacy falls to be decided, even with any particular matters that flowed from the question of the concession as to aiding and abetting. 

GLEESON CJ:   Now, a matter was raised earlier this morning and I thought we were going to have an application to amend the title of the proceedings.  It is the parties who set the title to the proceedings by the form of their notice of appeal, but is there an application to amend that?

MR COGHLAN:  No, your Honour, the reason being that at the bottom of page 136 of the appeal book there is a ruling made by the learned sentencing judge prohibiting the use of the names in favour of the use of the initials.  As far as anybody has been able to determine, that order is still enforced.  So in those circumstances we would not seek to amend the name of the parties.  If any action is taken in relation to that order, the Court will be informed accordingly. 

GLEESON CJ:   Thank you, Mr Coghlan.  Yes, Mr Hill.

MR HILL:   If there be, with respect, any notion that the Crown’s position at the plea was a hurried one it should be borne in mind that this was a case where the initial plea was entered on 23 July 2001.  That was the occasion on which Mr Hicks represented the Crown and that the occasion when Mr Kayser opened the matter on the actual plea hearing before the judge was 11 October 2001 both speaking, we say, in similar terms, so the matter can be said, in our submission, to have been a considered one.

The Crown here say, through the learned Director, that our complaint, in effect, here is really only about one of six particulars.  When one looks at the five other particulars really they all concern manifest leniency which really does not permit of particulars.  In our submission, you

cannot assess the gravity of a crime without first assessing culpability and the roles in which the participants played, or, alternatively, you assess their culpability and roles at the time that you assess the gravity.

Clearly, the Court of Appeal, as we submitted earlier, spent much of the consideration in their judgment in respect to the matter of Bannon and Calder and in respect to the culpability of the two appellants.  You cannot, with respect, divorce their reasoning from their conclusion.  That only follows, we say, with respect.  The fact, as our learned friend has, in effect, submitted that back on the date when the plea to manslaughter was entered a murder charge would not proceed, we say was simply a matter of prosecutorial discretion in the face of admitted forensic problems which Mr Hicks outlined at page 70 of the appeal book.

Indeed, he outlined those for the primary judge prior to the enter of the plea to manslaughter.  We say that the fact that the murder charge, for whatever reason, was not to proceed was irrelevant to an assessment of the legal effect of the guilty plea to aiding and abetting an unlawful and dangerous act of manslaughter.  If the Court please.

GLEESON CJ:   Thank you, Mr Hill.  Yes, Mr Richter.

MR RICHTER:   Your Honour, my learned friend says that my client had no defence to manslaughter.  That is completely wrong.  The defence to manslaughter was the account that he gave to the people who came to assess him from the youth training centre, which was, “I tried to pull him off.  That’s how I got scratched by the deceased”.  Yes, if you believe or raise a reasonable doubt about that, that is called a complete defence to the manslaughter.  So my learned friend is wrong.

Secondly, when my learned friend adverts to the notion of three years being said to be appellable error, that is in the context of three years youth training centre as well as in the context of a finite gaol sentence of three years, that is appellable error.  What happened here was that the judge gave him twice that; he gave six.  Now, it is not as if the Crown was taking the responsibility of saying, well, here is the range.  What they are saying is, three years is appellable error.  So the judge is entitled to say, “Well, if I double that, that surely has to take me out of the range of appellable error”.

The only other matter I want to refer to is this.  What we have is a situation in which we have a complaint of manifest inadequacy for a sentence that was an equal top sentence for the crime, then being converted into a record top sentence on the DPP’s appeal.  That has to be wrong, in my respectful submission, and it has to be wrong to the extent where it would not be appropriate to remit this matter at all.  The appeal ought to be allowed and the Court of Appeal’s decision set aside without remittal.  If there is any remittal to be done, in my respectful submission, perhaps it ought to have been remitted to the trial judge at some stage in the Court of Appeal, if there was a concept about agreements being fuzzy or not being appropriate and the like.

KIRBY J:   Yes, but that is a matter for the Court of Appeal.  We do not deal with the trial judge.  We deal with the Supreme Court of Victoria.

MR RICHTER:   Of course, but we say it is inappropriate to remit to that court.

KIRBY J:   I have never heard of that being done here.

MR RICHTER:   The remittal?

KIRBY J:   To the primary judge.  We deal with the court ‑ ‑ ‑

MR RICHTER:   No, I was not suggesting that we ‑ ‑ ‑

KIRBY J:   Well, that is something you would have to put to the Court of Appeal.

MR RICHTER:   I was certainly not suggesting that this Court remit it to the trial judge.  What I am saying is that if ever the question of remittal had arisen, it should have arisen at the Court of Appeal level, at which stage it might have made some sense to remit it to the trial judge to do something or to make some findings.

The final thing that I wanted to say is this.  The fulcrum of the judgment and the reason that the Court of Appeal did what it did really appears at page 272 in paragraphs 45 and 46.  The court says at line 14:

Why the matter was approached in this fashion by the prosecutor is unclear in a case in which the precise circumstances surrounding and leading to the death of the deceased could not be determined.

Well, it is actually very clear as to why it was approached and they are wrong.  It is very clear as to why it was approached because it was clear that the Crown stood at risk of losing both of them.  The court then continues:

Each of the respondents had, through his plea of guilty, in effect accepted that he was responsible for bringing about the deceased’s death by reason of his involvement in the commission of a savage and sustained assault upon her.

Not so.  The notion of responsibility for the death, if that is meant to indicate causing the death ‑ ‑ ‑

GLEESON CJ:   It meant criminal responsibility, I thought.

MR RICHTER:   Criminal responsibility, yes, but that tends to indicate going a little bit further and indicates some causal responsibility, and that is not necessarily part and parcel of the notion of aiding and abetting, as Justice McHugh says in Osland.  It had no causal connection at all with the death.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Richter.  We will reserve our decision in these matters.  We will adjourn until 10.15 tomorrow morning.

AT 3.57 PM THE MATTERS WERE ADJOURNED