GAS v The Queen, SJK v The Queen

[2003] HCATrans 393

[2003] HCATrans 393

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M168 of 2002

B e t w e e n -

GAS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M177 of 2002

B e t w e e n -

SJK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 3.03 PM

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 applicant GAS.  (instructed by Jones Dowling McGregor) 

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

MR W.H. MORGAN‑PAYLER, QC:   If it please the Court, I appear with my learned friend, MS E.J. GARDNER, on behalf of the respondent in each case.  (instructed by Solicitor for Public Prosecutions) 

GUMMOW J:   We will hear first from you, Mr Hill, and then Mr Richter and then we will hear from Mr Morgan‑Payler. 

MR HILL:   Thank you, your Honour.  Two questions of fundamental principle and importance are raised by this application.  Firstly, on a Crown appeal as to sentence can a Court of Appeal expose a respondent to triple jeopardy by allowing the Crown to assert error or by its own motion finding error as to the whole basis on which the plea was negotiated and conducted before the sentencing judge.  Associated with that question is the further question as to whether, in fact, there was error here in the categorisation of the applicant GAS as an aider and abettor. 

The second question of general principle is as to the principles involved in the sentencing of children.  In particular, is the paramount principle that of rehabilitation or, alternatively, do youth and rehabilitation constitute only some of the matters that must be taken into account and that youth and rehabilitation on occasions must, as the Court of Appeal said, “give way to the achievement of other objectives of sentencing law”?  That also has a subsidiary question in respect to our client in this case, and that is the Court of Appeal’s findings on rehabilitation. 

This was a case, your Honours, where the two applicants were initially charged with murder.  They were arraigned before the trial judge, discussion ensued, including the foreshadowing of an application for separate trials, and after discussion the learned Crown Prosecutor sought his Honour’s leave to file a new presentment in respect to the crime of manslaughter, explaining to his Honour at page 70 of the application book, line 23: 

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. 

After arraignment, the learned Crown Prosecutor, at page 74, line 22, said: 

the Crown is unable to say, and never would be able to say, in this case who killed Marie Zidan.  Accordingly, the proper way for Your Honour to sentence both the accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were 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 –

and at page 74A, line 4: 

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; and 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. 

The plea was conducted on that basis, counsel for GAS, at page 111, indicating at line 26: 

his plea of guilty is an admission, and it’s trite for me to put this as a matter of law, of course, but it’s an admission that he was involved as an aider and abetter on an unlawful and dangerous act, attack on the deceased. 

The learned sentencing judge proceeded to sentence both applicants on the basis that it was put to him by both the Crown and by the counsel for the applicant GAS, in so doing stating, at page 191, in his sentencing remarks at paragraph 36: 

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. 

At page 196, paragraph 52, line 5: 

The difficulties in sentencing to which I have already referred are compounded here by the further difficulty of applying –

I am sorry, if I can go backwards, rather, to page 189, line 7: 

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 abettor, each of the other.  It is on this basis that you will be sentenced. 

HAYNE J:   Now, what does that mean? 

MR HILL:   It means that the Crown had put to his Honour that they were to be sentenced as aiders and abettors ‑ ‑ ‑

HAYNE J:   I understand the history you have taken us to, but what is the consequence?  What is the content that is there being spoken of? 

MR HILL:   The lowest level of criminal responsibility, on the basis that the Crown could not say that one or other had done the physical acts leading to the death of the deceased; thereby admitting, in effect, that the other applicant, albeit present and aware that the other one was committing an unlawful and dangerous act, was doing no more than had been, one would imagine, the plan of looking for money within the bedroom of the house, that is, that there was a real distinction open as to the roles between the two accused. 

HAYNE J:   Would it encompass one inciting the other? 

MR HILL:   No, your Honour, there was no evidence here of inciting. 

HAYNE J:   I understand there was no evidence.  What I have in mind is paragraph 47 of the Court of Appeal, page 218. 

GUMMOW J:   Do you quarrel with paragraph 47 at page 218? 

MR HILL:   Yes.  What the Court of Appeal there is saying, and by the example that they bring to mind, is an example in a given situation whereby the roles of the actors are known. 

HAYNE J:   Just so, but here we know a crime of a particular description – and I forbear from adopting the pejoratives – had occurred. 

MR HILL:   That is so. 

HAYNE J:   We cannot say what role either played in it.  To say that both are therefore to be sentenced as aiders and abettors at the moment seems to me simply to invite the further question, yes, but what does that mean?  Now, am I wrong in seeing it as simply inviting the further question?  If not wrong, what is the answer? 

MR HILL:   The answer is that, in the circumstance of this case, it is acknowledged by the Crown and by the trial judge that the result is a lesser sentence for an aider and abettor than a principal, because there is the possibility that in the circumstances of this case it was the physical acts of one that led to the death, whereas the other may bear no more responsibility or culpability than that of being merely present and, whilst being aware that an unlawful and dangerous act is being committed, continue to search the room for money and thereby be guilty as an aider and abettor of the crime of the other. 

There would, in those circumstances, in our submission, be a marked distinction between the two.  That is how it was put, in effect, to the sentencing judge by all parties and that is how the sentencing judge formulated his sentence. 

HAYNE J:   Then what is wrong with what the Court of Appeal says at paragraph 47? 

MR HILL:   What is wrong is that the Court of Appeal there are dealing with what might be termed a side issue – they are not grappling with the issue as to how to sentence when you do not know the roles of the respective participants.  The example that they give, in our respectful submission, is unhelpful to the question that they should have been considering at that stage.  We say that in the circumstances of this particular case the judge was right in his categorisation of the culpability of the two.  Even if he was not right, which we do not concede, that was the way in which the Crown went to his Honour. 

It would, in our respectful submission, have been wrong for the sentencing judge to have found anything other than he did because he could not be satisfied beyond reasonable doubt of a term of aggravation – that is, a term that would increase the sentence – in this case, that is, that one was playing less than what might be said to be the most minimal culpability in this particular crime, ie, that he was not a physical actor, but he was simply present, as we have explained. 

HAYNE J:   Aiding and abetting in what sense, in this last example? 

MR HILL:   Aiding and abetting, your Honour, in the sense that I have explained:  being present, being aware of the unlawful and dangerous act ‑ ‑ ‑

HAYNE J:   And encouraging? 

MR HILL:   Encouraging by behaviour and presence, which would need to be no more than the continuing of the searching of the room for money. 

HAYNE J:   Because the aiding and abetting with which we are concerned is the aiding and abetting of a crime where certain known facts exist, namely, the cause of death and what can be inferred about the manner of death. 

MR HILL:   That is so.  We know that there is a death.  We know the injuries. 

HAYNE J:   And those are features suggesting ‑ ‑ ‑

MR HILL:   One offender. 

HAYNE J:   ‑ ‑ ‑ a bad case of manslaughter. 

MR HILL:   That is so, but committed by one actor, not two.  Associated with this question is, even if we are wrong in our submissions about that error of categorisation, that is how the Crown put its case.  That is how it came to be resolved as a plea to manslaughter, rather than a trial.  It is made plain in the discussion with his Honour. 

The Court of Appeal, we submit, whilst proceeding to hold that the sentencing judge was wrong to impose a lesser sentence on the basis of the aiding and abetting categorisation, argued here as ground 1, ignore and/or fail to consider whether, in the exercise of its discretion, it should intervene, given the conduct of the Crown in sentencing.  In Everett, this Court held that the majority of the Tasmanian Court of Appeal had failed to accord proper significance to the failure of the Crown to take issue with a wholly suspended sentence, when they knew that the sentencing judge was contemplating such an order. 

Here, the situation, we say, is much more marked and in our favour.  Here, we submit that the exercise of the Court of Appeal’s discretion was vitiated by the failure to consider the magnitude of the Crown’s departure, just as it was in Everett.  We say that special leave should be granted to correct ‑ ‑ ‑

HAYNE J:   Sorry, can I just take you back over those last couple of propositions – just make sure I understand them.  Is that a set of propositions that has, as part of them, an acceptance that the Court of Appeal could conclude that there was manifest inadequacy? 

MR HILL:   No, your Honour. 

HAYNE J:   Or is it chopping it off at the point of saying the court could not conclude manifest inadequacy? 

MR HILL:   It is the latter, your Honour. 

HAYNE J:   Why?  Why could it not conclude manifest inadequacy? 

MR HILL:   Because, whereas this case was argued before the Court of Appeal on the basis of manifest inadequacy, there was, in effect, by the Crown’s grounds of appeal, an appeal as to specific error.  We say that the Court of Appeal found specific error and, indeed, the Crown before this Court acknowledged ‑ ‑ ‑

HAYNE J:   I must say that the form of notice of appeal is not one I would wish to encourage.  Manifest inadequacy does not ordinarily admit a particularisation.  If there are particulars that can be given, and those are alleged to be specific errors, let it be said.  Do not wrap the two up. 

MR HILL:   The Crown, we say, in its written submissions before this Court makes it plain that the Court of Appeal were, in effect, correcting the error of the prosecutor below.  We say that is right.  It is a clear reading of what the Court of Appeal were doing.  They were correcting what they saw, with respect, was the error of the prosecutor below, but without having regard to the way in which the parties had resolved the matter and placed the matter before the sentencing judge. 

Here, we say, with respect, that the principles in Everett and other similar cases must be recognised and applied by Courts of Appeal, particularly in hearing Crown appeals as to sentence.  It must not be forgotten, with respect, that this was a Crown appeal against sentence.  It is really the first time now that the applicant has the opportunity to point to these matters.  

There is, we submit, a larger question raised by this ground of significance in the administration of justice throughout Australia, and that is, should the Court of Criminal Appeal ever be permitted to revisit the underlying basis of the entry of a plea of guilty and the case being put on an agreed basis before a sentencing judge?  In our submission, the answer should be “No”.  Firstly, the legal reason.  It is the law that an agreed factual position on a guilty plea cannot fetter the discretion of a sentencing judge, but, once acted upon, there must be finality, we submit, as to the basis of culpability of the offender.  Whilst the offender may be exposed to double jeopardy by the bringing of a Crown appeal – notionally, a rare event – surely the basis for culpability cannot be recast as it was here, because, otherwise, the applicant would face triple jeopardy. 

It is for those reasons that protections are accorded to an accused person before a sentencing judge, ie, the giving of evidence or the withdrawal of a plea, which could be lost in the course of a Crown appeal.  Second, there is a good policy reason, that is, in the interests of efficient justice, the community being represented by the Crown, there should be a certainty and a finality.  The Crown puts the matter.  The matter is dealt with accordingly. 

The next important issue raised by this application is what we would term the somewhat vexed issue of sentencing children.  Both applicants, at the time of the offending and at the time of sentencing before the sentencing judge, were children, that is, in respect to GAS he was under the age of 18 at the time that he appeared before the sentencing judge.  We say that the sentencing judge acted in accordance with the weight of authority in treating the applicants’ youth and prospects of rehabilitation as the principal or paramount consideration in imposing a sentence.  The Court of Appeal

erred in principle in failing to hold that rehabilitation is the primary purpose for which a sentence is imposed on a child.  The Court of Appeal said ‑ ‑ ‑

HAYNE J:   You say that is a universal proposition, even applicable in cases of homicide? 

MR HILL:   Even in cases of homicide.  The Court of Appeal, in our submission, seems out of step with the Court of Appeal in New South Wales, in particular, in the case of P, sometimes known as GDP, and in the case of Hearne, which, in effect, affirmed P, Hearne being a murder.  It is submitted that when sentencing a child the primacy of rehabilitation cannot, as a matter of principle, give way to other purposes of sentencing.  I see that my time has expired. 

GUMMOW J:   Thank you.  Yes, Mr Richter. 

MR RICHTER:   If the Court pleases, as our very brief outline of argument indicates, we adopt the arguments of our learned friend on behalf of GAS.  If the Court pleases, what the first issue of general importance for the administration of justice is is this.  An agreement was struck between a child – in fact, between two children – and the Director of Public Prosecutions as to a certain basis upon which they were to be sentenced.  The learned trial judge accepted this agreement.  He acted on it.  Thereafter, in the Court of Appeal, the DPP reneged on that agreement and sought to put a different light on it. 

This is not a case where you have an agreed state of facts coming before a sentencing judge and the sentencing judge says, “Actually, I do not like your agreed facts.  I do not think that the depositions bear them out.  I do not think that the material bears them out.  Am I not entitled to find other matters?”  As to that, there could be no objection.  Moreover, if the learned trial judge in this instance said, “I cannot accept the legal proposition upon which this bargain is struck”, other consequences may have flowed.  For example, he might have offered the children the possibility of going back on their bargain. 

The Court of Criminal Appeal here was – I am not going to say obtuse, because it is not obtuse – it raises mysteries where there are no mysteries in a number of ways and it makes errors and slides from those errors into the attribution of substantive conduct, where such attribution could not be made. 

HAYNE J:   What was the factual content of what you describe as “the bargain”, insofar as it related to aiding and abetting? 

MR RICHTER:   Could I start off by answering that by pointing the Court to a proposition that the Court of Appeal makes at paragraph 45.  It says: 

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” –

that is, a theoretical offender.  These sentences are in the same way as one regards separate trials, one regards the position with respect to each applicant separately.  So that, when considering our client, for example, you have this notion of a theoretical principal offender with respect to whom we are aiding and abetting and are not as morally culpable, obviously. 

HAYNE J:   A principal offender who committed the homicide ‑ ‑ ‑

MR RICHTER:   Who killed, yes. 

HAYNE J:   ‑ ‑ ‑ with which we are ‑ ‑ ‑

MR RICHTER:   Yes, who killed, who bashed, who strangled ‑ ‑ ‑

HAYNE J:   Yes.  Aided and abetted in what respect? 

MR RICHTER:   Aided and abetted, in this particular instance, in the least way that one could ‑ ‑ ‑

HAYNE J:   Why?  Why the least way? 

MR RICHTER:   Because there is no other evidence.  This is not a case ‑ ‑ ‑

HAYNE J:   What part of the agreement was there that it would be aid and abet in the least possible way? 

MR RICHTER:   I am sorry, perhaps not in the least possible way, but in a way that was lesser than the principal killer.  Now, that was part of the agreement:  in a way that was lesser. 

HAYNE J:   I come back to my question ‑ ‑ ‑

MR RICHTER:   Yes, your Honour. 

HAYNE J:   ‑ ‑ ‑ what is the factual content of what you describe as “the bargain” about aid and abet? 

MR RICHTER:   Yes, your Honour.  It starts off in this way.  The Crown is unable to establish certain propositions.  We go into the application book and the notion of the plea bargain involves ‑ ‑ ‑

HAYNE J:   Mr Richter, I know that the question is awkward.  I would be grateful if you would grapple with it as best you may.  What is the factual content? 

MR RICHTER:   The factual content of the agreement is that since the Crown cannot point to who did the killing, each one must be treated as an aider and abettor of the person who did the killing, not as the person who did the killing – that is the content of it – and therefore be sentenced on a theoretical notion of a lesser sentence than the person who did the killing.  That was the basis for it.  The basis for it was arrived for very good reason – and, indeed, it goes beyond that, because the agreement is spelled out by Mr Hicks at page 74, beginning at line 24: 

Accordingly, the proper way for Your Honour to sentence both the accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were each 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 –

So the Crown itself puts it in terms of finding the lowest common denominator and the lowest common denominator for aiders and abettors in these sorts of circumstances, in my respectful submission, is a situation where one is present, aiding and abetting, that is, encouraging by behaviour, which can include not withdrawing and not desisting with sufficient force.  For example, Ridley v White, of course, is a case where this Court passed on the notion of countermanding some time ago.  It indicated that the countermanding, in order to get out of it, has to be unequivocal and the greatest countermand that one can offer. 

In this situation, where two people agree to commit a burglary and they go inside and they find a situation arising where the occupant is there and one of them – and I am not saying which one, of course, because no one knows – goes berserk, the other is present during the assault, and it is the assault which is the unlawful and dangerous act, the beating up of the deceased.  By his continued presence and non‑countermanding at that stage, that is sufficient aiding and abetting, because he has created a situation of going in there where he is obliged to countermand and to remove himself. 

So that is the lowest common denominator of aiding and abetting, in my respectful submission.  It does not necessarily have to be yelling at the person, saying “Bash her up”, do this, do that.  In this instance, the lowest common denominator is quite different. 

Now, as to that proposition about why it was that this bargain was struck, as it were, at paragraph 45 of the judgment at page 217 the court appeared to be expressing some unease or, rather, it says:

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.

It is perfectly clear as to why the prosecutor approached it in this basis and the aetiology is it starts off from the fact that there were separate trial applications in this case and the fact being that if separate trials were granted, and there was every reason for separate trials to be granted on the Darby principle because one of them is saying in his utterances, “I am not there, had nothing to do with it”, the other one is saying, “I am there, he did the killing and I didn’t do the killing”.  On that sort of basis, without the cross‑admissibility of those utterances, they could not have a fair joint trial in the Darby sense because for the one who says “I wasn’t here”, for example, it is an impossible situation where the other accused says, “Of course we were there and he did the killing”, could not get a fair trial.

Now, in the event that those foreshadowed applications had succeeded, it was quite clear that the Crown stood a pretty good chance of losing both of them because of its inability to prove certain things.  That is why the Crown struck the bargain, and it struck the bargain with children, and the court has a special duty to protect children, in my respectful submission, and the learned trial judge accepted that bargain from his position as the trial judge who had a duty to look after the welfare of the children over and above the notion of the fact that there were lawyers representing them, because they were children.  My client was younger by about a year.  He was 15 at the time of the offence.  He was 16 at the time of sentence and he was still a child within the meaning of the Act at the time of the Court of Appeal’s decision.

So the situation is, in my respectful submission, the reasoning that led to the bargain is quite clear and fully exposed.  This is not a case where one can speculate about what happened because the agreement, the deal itself, eliminated the notion of “it is uncertain what happened” and provided the parameters for sentencing.  It is not an agreement as to facts which a trial judge can agree or disagree with and agitate, but it was an agreement as to the legal effect of what each one of them did.

In that sense, therefore, it was binding on the Crown and the Crown, of course, held up its end of the bargain during the plea and through sentence, but then appealed.  In the process of the appeal it reversed its stand on the notion of the culpability of each one of them and raised the bar and, in effect, what we submit happened is that the Court of Appeal moved the goalposts in this instance because it did not deal with it on the basis that had been agreed upon.  So that, in my respectful submission, is a demonstrable error in what the Court of Appeal actually did.

GUMMOW J:   Do you say this bargain went so far as to foreclose any Crown appeal on manifest inadequacy?

MR RICHTER:   No, your Honour, but it went so far as to foreclose a Crown appeal that was in response to a public outcry, as is clear from what was being said there, and which called for what became, in my respectful submission, a record sentence for a 15‑year old, a total record sentence.  There were statistics in front of the court and the court adverted to those statistics in terms of sentencing for manslaughter and those statistics indicated – and they were referred to and no one demurred – that the sentencing for manslaughter has gone anywhere between a bond and 10 years.

HAYNE J:   Manslaughter is one of the most difficult sentencing tasks any judge ever faces.

MR RICHTER:   Absolutely, and this judge struggled with it and acted on the basis of an agreed position.

HAYNE J:   And there are difficulties presented by the youth of offenders in this case ‑ ‑ ‑

MR RICHTER:   Of course, your Honour, but the ‑ ‑ ‑

HAYNE J:   Why should we then get involved in it?

MR RICHTER:   Because the Court of Appeal reneged on the agreement, in my submission.  It reneged on the agreement.  It did not accept it and did not act on that basis.  Now, if it was going to do that, if it wanted to say that the agreement was improper, unconscionable and wrong, what happened here was that each of these children forewent their right to trial and forewent an opportunity of a complete acquittal by accepting this bargain. 

That is not something that the Court of Appeal seemed to have considered.  They gave something away.  It was a valuable right that they gave away when accepting the bargain that was offered and the Court of Appeal paid that no heed, in my respectful submission, but proceeded to evaluate this as a grave instance of manslaughter, and we do not quarrel with that, and proceeded to evaluate it on the basis that these two equally contributed to the death.  In other words, they both killed her.  The sentence as much as indicates that they both killed her.  The fact is they did not, and that was part of the agreement.

So that the point of special principle that arises is this, is it appropriate and is it possible to renege on that kind of position when it has led to an acceptance?  This kind of plea bargain is significant because there was a very significant quid pro quo.  All parties went into it with eyes open except that two of the parties were children and their interests were not looked after in the end by either the other end of the agreement or by the Court of Appeal.

The reason it is of special interest is this.  There have not been many cases on what is loosely described as “plea bargaining” since Bruce’s Case in the High Court.  We just do not do that, but this is, in one sense, one form of plea bargain and it is one form of plea bargain that, in my respectful submission, is in the public interest, was in the public interest because of the possibilities inherent in the situation and because it was in the public interest the deal was struck with two children and it was not to be reneged on, not at that level, and could not be reneged on.  That is why the case is special.

GUMMOW J:   Could not?

MR RICHTER:   That particular deal could not be reneged on other than by giving back what had been bargained away.  It could not be; it could not be reneged on by saying, “Now that you have pleaded to manslaughter, got you, I am going to deal with you as the killer” when the deal was, ‘You are not going to be dealt with as the killer, but as someone less responsible for the death”.  What this brings into consideration is the whole notion of how one assesses the substance of conduct, and that is what Olbrich, of course ‑ ‑ ‑

GUMMOW J:   Is this your ground 4 in the notice of appeal at 261?

MR RICHTER:   It is a combination of grounds, in my respectful submission.  So far as SJK, grounds 1, 2 and 3 all go to the issue of the bargain and the breach of the bargain.  All of those issues attack that at one point or another.  Grounds 4 and 5 deal with the notion of youth and rehabilitation and whether or not there is a specific way in which sentencing children needs to be gone about and that, in my respectful submission, raises ‑ ‑ ‑

GUMMOW J:   Yes.

MR RICHTER:   I am looking at the amended application at page 258, your Honour.

GUMMOW J:   Yes.

MR RICHTER:   That deals with what we say are special principles that relate to the sentencing of children.  Some of those special matters that relate to the sentencing of children are of considerable importance.  There is another notice of appeal that has been lodged by a child who has been sentenced for manslaughter which will come up in due course for a special leave application.  But one of the important things is this, that there seems to be developing in the courts an attitude, when sentencing children, of comparing apples with pears.  In other words, the attitude seems to be, “If this was to be an adult sentence, it would exceed three years; therefore, I can’t give it youth training centre”.  So it confuses the notion of what child sentences are with what adult sentences are and makes an invalid comparison. 

That issue does not specifically arise here directly because both applicants forewent and gave away the notion of seeking a youth training centre disposition which, of course, is limited to three years.  What they did not give away is the primacy of rehabilitation and what the Court of Appeal did was to take away the primacy of rehabilitation and reintroduce the notion of general deterrence and specific deterrence in circumstances where it was wrong.

HAYNE J:   Denunciation.

MR RICHTER:   Denunciation was there by the sentence of six years with the minimum of four inasmuch as there are comparable cases of children actually killing in vicious circumstances and no one ever got more than six with a four.  Now, I know there was another instance of a special leave application in which his Honour Justice Gummow was involved arising out of New South Wales where the question was, there has been a change in the goalposts, the whole range has been shifted upwards and his Honour says that is not special because the range does shift.

What is special is the range shifted here in a case in which a bargain was struck and the emphasis and the question of where the emphasis should lie in the rehabilitation and the treatment of children brings into question issues of general importance to the administration of justice, including the International Covenant on the Rights of Children, for example, which requires that they be treated in certain ways, and Australia, of course, being a party to that, honours it.  There is a tension in the cases between the extent to which one honours the principles that the primacy of the interests of the

child inure for the benefit of society, not just of the child, but for the benefit of society generally.

So, if the Court pleases, we say that there are serious errors in fact in the reasoning of the Court of Appeal overlaid on top of a breach of an agreement of a plea bargain that was in the public interest by children for whom the court had a guardianship function, which it assumed by accepting the bargain as a proper bargain, and then the Court of Appeal reneged on it in pursuit of a request to do so by the DPP.

That is wrong, in my respectful submission, and that is a general principle in the administration of justice as to when and to what extent a plea bargain is, in fact, binding and is a gloss, and will be a gloss on Bruce’s Case which is a different type of arrangement, of course, because here there was no agreement as to sentence.  The only agreement was that one was not as culpable as the other.  Thank you, your Honour.

GUMMOW J:   Yes, Mr Morgan‑Payler.

MR MORGAN-PAYLER:   If I might respond to each of my learned friends in turn and might we commence by stressing that the Crown could not say, did not say and has never said that the evidence justified a finding that one other or, indeed, both together actually performed the act that caused the death of the deceased in this matter.  There simply was not enough material for such a finding.  I will return to my learned friend Mr Richter’s complaints about a bargain later.

The Crown’s position from a reading of the materials at the Court of Appeal was simply that such a categorisation of principal offender/aider and abettor, although properly open on this material, was one that really made little difference when taking the circumstances of this offence into account.  It really probably was not helpful to his Honour to put it in terms of aiders and abettors.  What the materials disclose is that, as a fact‑finding exercise, a sentencing judge would no doubt have fallen into serious error had he or she specifically found that one or other of the prisoners, or both together, actually performed that final act that caused the death.  That is what this case was and is about.

I think one of the applicants, in written materials, asserts that the Crown made various submissions in front of the Court of Appeal, one being that the Crown said it was a distinction with little difference from the purposes of this case.  Indeed, in a case involving a death, a homicide from an unlawful and dangerous act, in a case such as this involving a considerable amount of other non‑fatal physical violence being inflicted upon the unfortunate victim, in a case involving the ransacking of the house, a lot of that post mortem, and in a case involving each of the applicants having entered those premises as burglars the very evening before, little turns, in my submission to this Court, on whether one or other or both actually performed the act that caused the death.

HAYNE J:   How does that sit with what appears at 74 and following of the application book?

MR MORGAN-PAYLER:   Quite comfortably, your Honour.  The learned prosecutor at that stage said:

Accordingly, the proper way for Your Honour to sentence both the accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were each aiders and abettors, that is, the Crown cannot point to who was the principal offender.

The prosecutor there was doing no more than distinguishing between the actor who actually caused the death and the situation in this case that the Crown could not point to evidence to establish to the requisite standard just whether one, other or both of them had actually performed that act.  That, it is submitted, is what was put to his Honour on a fair reading of that submission.  Clearly, when the prosecutor there spoke of “lowest common denominator” he was simply distinguishing a party who he chose to call an aider and abettor, and probably picked up from the unreported Victorian case of Bannon and Calder, from a principal offender.

The presence in this case is, indeed, significant given that this was not an offence that involved simply one rapid, unexpected act of violence.  It may be the death was caused by one act but, as the Court will have noted, there were numerous injuries about the body of the deceased and a variety of types of injuries and the description of the house of the unfortunate woman having been totally ransacked.  In those circumstances, one encouraging the other by his presence is – as far as culpability is concerned, it is submitted there is little distinction between he who is present encouraging this ongoing series of events of violence and he who may perform the actual fatal act.

That is really the way the Court of Appeal approached it and it is significant.  The Crown submission is summarised by the Court of Appeal at page 216, paragraph 43:

the appellant’s primary submission was a simple one.  It was that the learned judge gave too little weight to the gravity of these offences and too much weight to the aspect of rehabilitation of the respondents.

The court went on at page 223 to set out how it had approached the task, paragraph 59:

We should say at this point that counsel agreed that the Court should decide whether these appeals should succeed by a process of identifying, in relation to each respondent, the relevant circumstances and then examining the face of the sentences in order to determine, in the light of those circumstances, whether each was manifestly inadequate or not. 

The court went on then to proceed with that process.  Nowhere has either of my learned friends taken the Court to a passage which they assert has the Court of Appeal holding that the sentencing judge’s fact finding was erroneous or in error.  True it is that the Court of Appeal doubted the value or the use of the distinction in these circumstances and true it is that that is the submission of the Crown in this case.

My learned friend Mr Richter put a number of propositions to this Court, some of which, in our submission, are somewhat novel.  In this State the Director of Public Prosecutions does not sentence offenders.  Judges do.  If the Court moves to the materials, the prosecutor at first instance in front of the sentencing judge made some concessions of fact about the roles that might be found of each party’s involvement and also another one:

In particular there was no plan to kill the deceased prior to entry into the house –

and the like.

GUMMOW J:   Where are you reading from?

MR MORGAN-PAYLER:   I am sorry, your Honour, page 74, the passage that I think each of my learned friends has gone to.

GUMMOW J:   Yes.

MR MORGAN-PAYLER:   I am sorry, page 70 and then 74 and, indeed, one needs to include his remarks at – that will do, I think, another prosecutor completed the plea but no more than repeated what was said at the first instance.  No doubt there were discussions between the parties, so much is clear.  There is certainly nothing in the materials to indicate it, but we would not be wanting to be seen to submit anything to the contrary.

However, there has been a novel argument put to this Court that has not been raised anywhere else about plea bargaining being a matter of importance in this case.  It is submitted that a proper and a fair reading of the materials indicates no more than certain factual concessions being made by the Crown in front of the judge at first instance and then on appeal complaint being made of the sentence that flowed from those findings.

There was – and I think I have already dealt with that in looking at the prosecutor’s actual words – no requirement on the sentencing judge or on the Court of Appeal or, indeed, there is no suggestion of any agreement that the Crown conceded that these applicants ought to have been sentenced on the basis of the least possible participation in the crime of manslaughter that one could imagine.

HAYNE J:   I think one way of understanding the submission against you is to see it as a submission that said it was agreed that these people should be sentenced as aiders and abettors, that is, it was agreed they should receive a less sentence than would be imposed on a principal offender.

MR MORGAN-PAYLER:   Yes.

HAYNE J:   What is the answer to that?

MR MORGAN-PAYLER:   That may well, in these circumstances, have been the thrust of what was put to his Honour.  What we would submit, if that be the case, in these circumstances, if there be a difference, it is minimal.  You could distinguish it, for example, from a case a little like Bannon and Calder which, in our submission, is not helpful.

HAYNE J:   Bannon and Calder tells you very little.

MR MORGAN-PAYLER:   But a case of murder where, for example, the person who actually does the act causing death is proved and shown to have an actual intention to kill, where another person is simply proved to have contemplated really serious injury, for example, one then might well be able to mount an argument that there ought to be substantial differentiation.  That, as was put below and is again put here, is not an appropriate argument to put in a crime that does not have the specific intent to kill and unlawful and dangerous act, manslaughter.

As for the other matters basically, I think, argued by our learned friend Mr Hill, the procedural fairness complaint was touched on lightly in this Court obviously because no endeavour was made to return to the Court of Appeal below to complain.  Equally obvious, as one can see, I think, from the judgment of the Court of Appeal, paragraph 48 on page 218, equally clear this very question – it would appear from what the Court of Appeal had had to say – was ventilated in front of them and, indeed, there was, in any event, time for complaint between the time the judgment was

handed down and judgment was perfected.  So we submit that there is no point in any complaint in respect of procedural fairness.

In respect of the general point about the sentencing of young persons and children, we simply submit that the law in the State of Victoria is clear, that there is no great conflict between jurisdictions in respect of the sentencing of young persons and, indeed, the Court of Appeal in this case correctly balanced the considerations that a court properly takes into account when sentencing young persons with the severity of the crime.

Again, in general, we rely on our written outline.  We submit that none of the matters raised raises a matter that would warrant a grant of special leave.  If the Court pleases.

GUMMOW J:   Mr Hill.

MR HILL:   At page 250 of the application book, in the Crown’s written outline of argument, it says:

The sole ground of appeal before the Court of Appeal was manifest inadequacy of the sentence.  In consideration of that ground, the Court of Appeal took into account the competing sentencing considerations applicable to the Applicants and the circumstances of the commission of the crime.  The Court of Appeal was entitled to consider those matters and to proceed to re‑sentence the Applicants, taking into account the error made by the Crown at first instance.

Here, if one listens to the submissions of our learned friend, it is though the prosecutor at the sentencing hearing did not err.  Clearly, in their written outline they have said that the Court of Appeal did take into account the error made by the Crown at first instance.

HAYNE J:   All this is in a section of the argument which proceeds from the premise, does it not, that if there was a difference, the difference was not something that stood in the way of the Court of Appeal?  Is that not where it finds its place in this written argument?

MR HILL:   It may be artificial to divorce the two concepts, but in part your Honour is correct in pointing to where it lies.  What the Crown did do was to tender Bannon and Calder, and it must not be forgotten, albeit that we agree with your Honour’s comments, that that is a case that is not of great assistance, but it was tendered and the reason why it was tendered was so that it could give vent to the agreement between the two, namely it says – and it is found behind tab 3 at page 37 the joint judgment says:

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.

HAYNE J:   The real bite of it is “in such circumstances”, but what you get out of that I am not sure.

MR HILL:   But that is what happened here, that is what was being said.  That is why the children and the parties agreed to plead to murder on that basis, that they would plead as aiders and abettors and get a lesser sentence.  It is said that there was no endeavour made to return to the Court of Appeal to complain.  One wonders, with respect, just how a complaint would have been received after the Court of Appeal, bearing in mind it does not adopt the two‑stage process, came in and handed down its decision and someone who was there for the purpose of taking a sentence said, “No, we disagree with that, your Honours”.  This is not Pantorno.

In our respectful submission, in answer again to our learned friend Mr Morgan‑Payler regarding children, there is a real issue in this State.  There is a real issue regarding rehabilitation and general deterrence.  The cases cited by the Court of Appeal should be readily distinguished in the material particular in each case, that in each case they are dealing with people, youths that is, of 20 years or plus.  We say that there is a difference when one comes to sentence a youth from a child.  Acts of Parliament distinguish between the two.  The Sentencing Act defines in section 3 a youthful offender as being under 21.  The Children and Young Persons Act by section 23 defines a child as being a child at 17 at the age of offending or 18 ‑ ‑ ‑

GUMMOW J:   Mr Hill, where do you say the plea‑bargaining point, if one can call it that, finds expression as a ground of appeal at the moment?  Mr Richter mentioned the first three grounds, of it being rolled up in that.

MR HILL:   At page 230 in the amended application for special leave to appeal for GAS.  We say that it finds its way squarely within ground 2, which is actually unfortunately expressed as paragraph 3:

That the Victorian Court of Appeal erred by giving no or insufficient weight to the conduct of the Crown before the sentencing judge.

GUMMOW J:   Yes.

MR HILL:   Perhaps not expressed as well as it might, but it is there, with respect, and point 4, I am rightfully reminded as well.

GUMMOW J:   Thank you.

MR HILL:   If the Court please.

MR RICHTER:   If the Court pleases, the sentencing judge was invited to act in a particular way.  Going to page 74 of the application book, the sentencing judge was invited to act on the basis of Bannon’s Case by Mr Hicks.  The Court has been supplied with copies of the unreported judgment.  At page 37 of Bannon’s Case one finds the following:

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 –

Now, what was held out to the court as part of the agreement was that they would receive a lesser sentence than that of the theoretical killer, that they would not be treated as the killer, each of them, and would receive a lesser sentence.  That was held out to them.  At page 74A, line 4 it was spelt out:

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; and 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.

There is another implication of Bannon at the bottom of that page at line 27 and the invitation to apply Bannon as part of the bargain.  The only part of Bannon that can have relevance to this is the passage that I have quoted at page 37.  Granted that it says “We think that an aider and abettor in such circumstances”, but those are the circumstances where a court could not determine. 

This case is better than Bannon in this sense.  Bannon went to trial, there was a jury trial and there the issue arises really what can a judge find consistently with the verdict of the jury?  The case here is quite different because that which the judge had to act on had been agreed, so it was not a matter of trying to work out what would be consistent with the jury’s verdict.  It was a matter of working out what had been agreed, and what had been agreed was that there was a holding out to two children that there would be a lesser sentence than that of killers.

The only other thing that I wanted to add, which has not yet been mentioned, arises from the statistical matter that I referred to earlier.  This is a Director’s appeal.  The Court of Appeal was wrong.  It did not exercise

that which this Court says it should and ought to exercise in a case of double jeopardy, let alone triple jeopardy.  There is no evidence of the slightest restraint in the resentencing process.  There is simply no evidence of it.  What would have happened had there not been any restraint?  The head sentence for the non‑killers, and they had to be sentenced as the ‑ ‑ ‑

HAYNE J:   Well, what is paragraph 67 at page 226 saying, if it is not saying that, Mr Richter?

MR RICHTER:   I am sorry, your Honour?

HAYNE J:   Paragraph 67, page 226, if it is not saying that it is applying restraint, what is it saying?

MR RICHTER:   The point that I am making, your Honour, is not that they do not recite the principle.  The point that I am making is that when you look at what they did they gave it no substance.  They could not have given it any substance because, without restraint, what would these non‑killers have got when the most that a 15‑year‑old manslaughterer killer has got is six with a four up to that time?  Would the non‑killer have got 10, or 12 with an eight?  It would have had to.  That would have had to have been their starting point for considering it if we are then to say that they exercised restraint.  The whole thing, in my respectful submission, was wrong.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 4.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.16 PM:

GUMMOW J:   Gentlemen, we are presently minded to grant leave in the sense of the ground sought to be encompassed by grounds 1, 2 and 3 of the draft notices as was indicated in the course of argument, but before making a formal grant of leave we would want to see a reformulated ground which specifically identified what we have been debating this afternoon, which was said to be implicit in those first three grounds, namely the plea‑bargaining point, if I can put it that way.

If that can be done before the Court rises this afternoon, we will then make the appropriate orders, so you might mention it again as convenient in the course of the afternoon.  It need not be typed out.  We can read your handwriting.  So we will stand application No 10 in the list for the moment and we will proceed with application No 11.

AT 4.17 PM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.40 PM:

GUMMOW J:   Yes, gentlemen.

MR HILL:   Your Honour, we have reformulated the ground of appeal.  Is it convenient ‑ ‑ ‑

GUMMOW J:   Would you hand it up?  Mr Richter joins in the drafting, does he?

MR HILL:    Yes.

MR RICHTER:   Yes, your Honour.

GUMMOW J:   Has there been any attempt to flesh this out with some particulars of the departures?

MR HILL:    There has not as of this moment, your Honour.

GUMMOW J:   Yes.  Proposed ground (b) is “in a manner contrary to the plea”.  The question is, contrary how?

MR HILL:    We certainly undertake before the ‑ ‑ ‑

GUMMOW J:   We will be here for at least another 20 minutes.  You can have your juniors mention it again.

MR HILL:   Thank you.

GUMMOW J:   There is no need for senior counsel to return.

MR HILL:    Thank you, your Honour.

MR RICHTER:   It might have too many particulars, your Honour.  There might be too many particulars for 20 minutes, but we will do our best.

HAYNE J:   That is what we are frightened of, Mr Richter.

GUMMOW J:   Call application No 12.

AT 4.42 PM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 5.13 PM:

GUMMOW J:   Yes, gentlemen.

MR RICHTER:   Your Honour, we will pass up the document which particularises the agreement.

GUMMOW J:   Thank you.  Have you seen this, Mr Morgan‑Payler?

MR MORGAN-PAYLER:   Yes, your Honour, I have.

GUMMOW J:   And this would be the appropriate order in both matters?

MR RICHTER:   Yes.

GUMMOW J:   There will be a grant of special leave in each of the two matters, M168 and M177 of 2002, limited to the following grounds of appeal:

1.  The Court of Appeal erred in: 

(a)  permitting the Director of Public Prosecutions to conduct his appeal in a manner contrary to the plea agreement reached between the defendants at trial; and

(b)  in determining the appeal in a manner contrary to the plea agreement reached with the defendants at trial.

Particulars of the plea agreement:  see application book pages 70, 75 and 96, substantially to the effect that:

(i)  that each accused would plead guilty to a manslaughter by an unlawful and dangerous act;

(ii)  that as the evidence did not permit the role of each accused to be determined:

(a)  each accused was to be sentenced at “the lowest common denominator” as an aider and abettor; and

(b)  accordingly, each accused should receive a lesser sentence than a principal in accordance with the decision in Bannon and Calder;

(c)  neither accused would attribute blame to the other; and

(d)  neither accused would submit that a youth training centre sentence was appropriate.

2.  The Court of Appeal ought to have dismissed the Director’s appeal.

Does that deal with the matter?

MR RICHTER:   Yes, your Honour.

GUMMOW J:   Thank you, gentlemen.  The Court will now adjourn until 10.15 am on Monday next, 6 October in Melbourne.

AT 5.17 PM THE MATTERS WERE CONCLUDED