Ghomari v The Queen

[1991] HCATrans 324

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S46 of 1991

B e t w e e n -

MOHAMED GHOMARI

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 2.51 PM

Copyright in the High Court of Australia

Ghomari 1 15/11/91

MR P. BYRNE:  May it please the Court, in this matter I

appear for the applicant. (instructed by Baker

Ryrie Rickards Titmarsh)

MR M.S. WEINBERG, QC: If it please the Court, in this

matter I appear, together with my learned friend,

MR T.L. BUDDIN, on behalf of the respondent.

(instructed by the Commonwealth Director of Public

Prosecutions)

MR BYRNE:  Your Honours, I have prepared a brief outline of

submissions of the argument for the applicant.	May
I hand that up?

DEANE J:  Thank you, Mr Byrne. Mr Byrne, you can proceed on

the basis that we have read the material in the

book and endeavoured to understand the working of

the relevant legislation.

MR BYRNE: If it please Your Honour.

DEANE J:  Can I take you to what seems to me to be a problem

that you face?

MR BYRNE:	Yes, Your Honour.
DEANE J:	And that is on page 24, the paragraph commencing

about the middle of the page.

MR BYRNE:  Yes, Your Honour. Your Honour, that particular

paragraph in the judgment of His Honour

Mr Justice Meagher is, in my submission, wrong in

the sense that it discloses a misconception by

His Honour of the distinction between a head

sentence for a Commonwealth prisoner and a minimum

term under the Sentencing Act in New South Wales.

In order to perhaps illustrate the error which

I contend has occurred there, it is probably

necessary to refer Your Honours to the judgment in

El Karhani which His Honour refers to there.

DEANE J: Well, as I read it, what His Honour is saying is

if because of a failure to observe the relevant

principle the sentence is to be quashed and this

Court is to impose what it sees as the appropriate

sentence, the result would be the 8 year period.

MR BYRNE:  I accept, Your Honour, that that is what

Mr Justice Meagher said but it is my submission

that that is, in fact, wrong. What would have had

to have been done by the Court of Criminal Appeal

if they had accepted the argument was to have

resentenced the appellant, as he was in those

proceedings, and if a sentence of 8 years had been

imposed, then it would have had to have been

Ghomari 2 15/11/91

accompanied by a non-parole period. But what

His Honour has there done is to equate the head

sentence for a Commonwealth offender, that is the

maximum term of imprisonment which that offender
would have to serve, with the minimum term that an

offender would have to serve under the Sentencing

Act.

DEANE J: Well, I do not follow that.

MR BYRNE:  Your Honour, perhaps if I can explain it a little

better by referring Your Honours to the relevant

passage of El Karhani.

DEANE J:  No, you take it as you planned to and deal with

this when it comes conveniently in your

submissions.

MR BYRNE:  May it please Your Honour. It is a matter which

I have made reference to in the summary of

argument. But if I might commence, Your Honours,

by referring Your Honours to what was said by

Justice Mason in a decision of this Court which is

reported as Lowe v Reg, 154 CLR 606. I have copies

of that to hand to Your Honours if Your Honours

wish them but the passage that I wish to refer to

in Lowe's case is relatively short. It appears at

page 610 of the judgment. If I might read that

briefly. His Honour there said:

Just as consistency in punishment - a

reflection of the notion of equal justice - is a fundamental element in any rational and fair

system of criminal justice, so inconsistency

in punishment because it is regarded as a

badge of unfairness and unequal treatment

under the law, is calculated to lead to an

erosion of public confidence in the integrity

of the administration of justice. It is for

this reason that the avoidance and elimination

of unjustifiable discrepancy in sentencing is

a matter of abiding importance to the

administration of justice and to the

community.

TOOHEY J:	Was that a case of co-offenders?
MR BYRNE:	It was a case of co-offenders, Your Honours, but

can be applied between offenders of a like

I would submit that the general proposition which which

kind. The terms in which His Honour expressed

himself were, in my submission, general. They were not restricted to the circumstances of co-offenders and the words which he there used could be applied

equally to the situation of offenders who were

convicted of similar offences. It is equally

Ghomari 3 15/11/91

important in those cases that there be consistency

of punishment as it is between co-offenders.

TOOHEY J: Well, only, Mr Byrne, perhaps, if you are

prepared to push the proposition a step further and

say that someone who is sentenced under a

particular regime, which shortly thereafter is

replaced by another regime, should be sentenced in

such a way as to produce no disparity between

prisoners sentenced under either regime. It seems

to me to perhaps beg the very question that is

before the Court on this application for special

leave.

MR BYRNE:  Your Honour, perhaps, if I could answer the question but putting it perhaps another way. Where

there is inconsistency in punishment disclosed and

it does not appear, at least on an analysis of the

relevant legislation, that that inconsistency was

intended by the legislature then it is open, in my
submission, for the courts to intervene to remedy

the inconsistency which would otherwise remain as

an injustice.

TOOHEY J:	What is the yardstick in this case by which you measure inconsistency? Inconsistent with what?
MR BYRNE:	Your Honours, the applicant has been sentenced in

a manner which is inconsistent with offenders who

were dealt with in the period prior to

September 1989 and inconsistently with offenders

who have been dealt with in the period since

July 1990. To put it shortly, Your Honours, this applicant falls in a period of hiatus between the introduction of the New South Wales Sentencing Act

in September 1989 and the introduction of the

Commonwealth Sentencing Act in July 1990. During

that period of 10 months, if the decision in this

case is right, Commonwealth offenders were

sentenced, in my submission, in a manner which was

not intended by the Commonwealth legislature and in

both before and after that hiatus period, was	a manner which discloses, when compared with people
unduly excessive and consequently unfair.

GAUDRON J: But that assumes, however, that he was properly

sentenced in accordance with the law as it applied

at the date of sentence, does it not? Your

argument assumes that.

MR BYRNE:  It was not intended to assume that, perhaps,

Your Honour.	I did not express it the way I had
intended to.	What I would submit is that the

manner in which this applicant was sentenced was in

accordance with the decision of the New South Wales

Court of Criminal Appeal in Maclay which has

previously been, at least, obliquely considered by

Ghomari 15/11/91

this Court in an earlier decision of Radenkovic.

But Maclay's case held - and putting it very

briefly, perhaps too briefly - that when offenders

came to be sentenced under the new Sentencing Act

in New South Wales, it was not legitimate for the

judge to simply apply a formula which would reduce

from the non-parole period that might ordinarily

have been specified under the previous legislation

the amount of remissions that would have been

attracted under that sentence. The court held that

that was not an appropriate way to deal with
offenders in future under the Sentencing Act and

the effect of that judgment is that people have

ultimately been sentenced to longer periods of

imprisonment where remissions, as they are in New

South Wales, are no longer available.

The Commonwealth Parliament intervened to

remedy that position by passing legislation in

January 1990 which, in fact, commenced in

July 1990. That legislation provided that where

somebody was sentenced in a State where remissions

were not available, then that should be taken into

account by the court in imposing sentence. It has

since been held in New South Wales that the general
effect of that provision of the Commonwealth

sentencing provisions is to reduce sentences

imposed on Commonwealth offenders by approximately

one third.

It means, in effect, that this applicant is

serving a sentence of approximately 50 per cent longer than those people who were sentenced for

similar offences - - -

GAUDRON J: But does your argument mean any more than that

the law changed?

MR BYRNE: Well, the law certainly changed by the

introduction of the New South Wales Sentencing Act.

GAUDRON J: And later again?

MR BYRNE: Later again by the Commonwealth provision.

GAUDRON J:	Commonwealth Act.
MR BYRNE:	But the manner in which the New South Wales

Sentencing Act has been interpreted - and it was

interpreted in this particular case by applying

Maclay's case - is, in my submission, incorrect.

What the proper approach should be, in my

submission, is for a court to have regard to the

fact that remissions are no longer available and to

reduce the minimum term accordingly. That is

effectively what the new Commonwealth legislation

said.

Ghomari 5 15/11/91

The legislation introduced by the

Commonwealth, in effect, imposed on the New South

Wales courts the proposition that had been put to them but rejected in Maclay. It leaves this

applicant, however, in the situation that he is a

person, not being entitled to remissions, not

having had the benefit of the new or, at least,

recently introduced Commonwealth legislation, that

the sentence he is serving is considerably longer

than it otherwise would have been.

Your Honours, if I can just go briefly to

explain the position that this particular applicant

is in.	He pleaded guilty to a charge of being in
possession of heroin.	By reference to similar

cases decided prior to the introduction of the New

South Wales Sentencing Act, those cases where a

head sentence had been specified together with a
non-parole period, the sentencing judge imposed a
sentence, a minimum term, which was more or less in

line with the non-parole periods that had been

imposed under the old regime. In doing so, in my

submission, he fell into error by not taking into

account the fact that remissions would have been

available on the non-parole period but would no

longer be available under the minimum term to which

he sentenced this particular applicant.

Your Honours, that argument or an argument of

that nature was put to the Court of Criminal Appeal

and it is perhaps a convenient time to deal with

the matter that Justice Deane raised at the

beginning of this application, the material that

appears in the application book at page 24. As I

said, in order to explain what I contend is an

error disclosed by what Justice Meagher said, I

think it is necessary to refer Your Honours to the

decision of the Court of Criminal Appeal in

El Karhani. I do have copies of that and I wonder

if I might just hand those up.

DEANE J: Thank you.
MR BYRNE:	Your Honours, I think the relevant page might be

at page 387 of the judgment. Just under line 25,

His Honour was discussing the approach that should

be taken in applying section 16G. That is the

section which requires a sentencing court to take

into account the fact that remissions are not

available. The Court there said:

It is not inappropriate to take into

account that throughout Australia the

reduction of custodial sentences for
remissions and the like is about one third of

the sentence. Again, this is not a fixed

ratio. But given the individualised

Ghomari 6 15/11/91

"adjustment" called for bys 16G, it is an

appropriate starting point.

If I can take Your Honours then to the last

paragraph on the page. The Court there said:

In the circumstances, we agree with the

submission of the DPP that, having regard to

the "tariff" for like cases -

and this was a case of similar nature -

the severity appropriate in the circumstances

of the offence lies somewhere between a (head)

sentence of seven to 12 years.

Now, if I can just stop there and refer to

what Mr Justice Meagher said, referring to page 24

point 5 of the application book:

The tariff, it seems to me, for the

magnitude -0f the offence involved here, would

call for a sentence of upwards of twelve years

and Regina v El Karhani only seems to support

that.

Well, initially, Your Honours, I would submit that

El Karhani does not say that "a sentence of upwards

of twelve years" should be the tariff but it says

that a sentence of between seven and 12 years ·

should be the tariff. And that, importantly, if I

might emphasize, Your Honours - that discussion

concerned the head sentence as distinct from the

non-parole period.

What the court then did was to apply the

discount to the period of 10 years which was

specified as the appropriate quantum penalty in

that case and the court took approximately a third

off a 10-year sentence and then allowed some

further reduction because it was an appeal by the

prosecution to determine that the head sentence
should be six years.	But in association with that

head sentence of six years there was a non-parole

period of four years specified, so that the penalty

imposed on the offender in El Karhani was

ultimately six years with a non-parole period of
four years. Then there was, as my friend quite
properly points out, an adjustment made following

the upholding of the appeal.

The submission that I would make,

Your Honours, is that what His Honour has there

done at page 24 point 5 is ultimately to confuse
a - what the court was there discussing in terms of

head sentence with what, in fact, the Court of

Ghomari 15/11/91

Criminal Appeal was dealing with in this case which

was a minimum of eight years.

Your Honours, the factors which might have

been taken into account by the Court of Criminal

Appeal in reducing the sentence that was imposed

upon the applicant in order to make it equate with

sentences that had been imposed on like offenders

who had come before him and those that had come

after are set out in the outline of argument.	I
have there listed four items of legislation. I
have copies of that legislation if Your Honours

wish to be taken to it but if I could perhaps just

briefly outline each of the provisions?
Section 4(4) of the Commonwealth Prisoners Act permits the sentencing court to take any matter

into account which it considers relevant in

determining a minimum term. Section 16G,

Your Honours, I have already referred to, is the

legislation which commenced in July 1990 providing

that a court can take into account the fact that
remissions are not available and adjust the

sentence accordingly.

Your Honours, section 55 of the New South

Wales Interpretation Act is a provision which

provides that a court is entitled, when sentencing
a person, to take into account a reduction in

penalty that might have occurred since the

commission of the offence.

DEANE J:  Mr Byrne, could I interrupt yo~ for a moment?

MR BYRNE: Certainly.

AT 3.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.15 PM: 

DEANE J: Yes, Mr Byrne?

MR BYRNE:  Your Honours, I was at section 55 of the

Interpretation Act which provides that a court can

take account of a reduction in sentence where the

legislature has reduced a sentence since the

commission of an offence to apply the reduced

sentence to the offence.

The fourth matter I have referred to is

section 439 of the Crimes Act which is, in effect,

a legislative recognition of a principle that has

Ghomari 15/11/91

been established for many years, namely, that a

person should be entitled to a discount in the
penalty otherwise appropriate where the person has

pleaded guilty.

Your Honours, the reason why I have cited that particular provision is that the circumstances of

this applicant's case, in my submission, disclose a

particularly, I suppose best be described as an

unfortunate set of circumstances in that his
actions in pleading guilty at the first opportunity

were the only cause of him, in fact, falling within

what I have described as that hiatus period between

the old legislation and the new. It was a factor,

that is, the fact that he pleaded guilty before the

magistrate and adhered to that plea before the

trial court, was a factor which normally would have attracted some significant discount in his case but

as it was, because it meant that his case was dealt with much more quickly than it otherwise might have

been, he fell into this period where sentences have

been, as I have said, significantly heavier than

sentences imposed both before and after the time

that this applicant was sentenced.

TOOHEY J:  Mr Byrne, I am still trying to identify the

principle that is involved here. I take it you

would not suggest that if persons were sentenced

and subsequently there is a change in the law that

there is an argument for adjustment of sentences

already imposed?

MR BYRNE:	No, Your Honour.
TOOHEY J:	Is it the fact that the new regime is known of at

the time that the person is sentenced that is said

to produce the injustice in this case? What is it?

MR BYRNE:  Your Honour, the source of the injustice, in my

submission, can be first sheeted home to the

decision of the Court of Criminal Appeal in Maclay

which, in my submission, is wrongly decided. If

Maclay's case had held that sentencing under the

Sentencing Act should, in effect, follow the

legislative pattern established by section 16G and

the Commonwealth Act, namely that when sentencing,

a judge should take into account the fact that

remissions are not available and adjust - and for

"adjust" one can clearly read there "and therefore

lower the sentence" to take account of that - that

is what the Commonwealth's law is now. It is what

the Commonwealth law was before the Sentencing Act

was passed, but there is this short period during

which Commonwealth offenders were sentenced under

the State Act.

Ghomari 9 15/11/91

Maclay's case applied to say that the absence

of remissions simply should not be taken into

account. Now, that really, to answer Your Honour's

question, is the source of what I submit is

injustice in this particular case.

GAUDRON J:  You say quite apart from section 16G or any

enactment to that effect, the unavailability of

remissions must be taken into account in the

sentencing process?

MR BYRNE:  Yes, Your Honour. The submission is that

section 16G recognizes what the law should be and

the Commonwealth Parliament acted quickly or

relatively quickly after the introduction of the

State Act to put in place what I would say is the appropriate approach to be made by sentencing

judges. It is totally contrary to Maclay's case.

DEANE J: There is a bit of a problem though, is there not,

in that if remissions then became available you

would have to say that account would need to be

taken of the availability of remissions thereafter,

which is quite contrary to what this Court has said

in those South Australian cases.

MR BYRNE:  Yes, I appreciate that, Your Honour.

Your Honour, I think the answer to that question is

that it is not open for a court to take into
account the availability of remissions to increase

a sentence but it is open for a court to take into

account the unavailability of remissions to reduce

a sentence.

DEANE J:  What you say sounds plausible. One has a feeling

though that there is an element of

inconsistency - - -

MR BYRNE: Well, all of the cases that say - - -

DEANE J:  - - - in that if you had a legislative history of

introducing - - -

MR BYRNE:	There is not, of course, Your Honour.
DEANE J:	- - - remissions and taking them out, you would

end up with the accused probably getting nothing.

MR BYRNE:	Yes, Your Honour. Well, all of the cases that relate to remissions, of course, have been decided
in a context where remissions are available and it
is true, as Your Honour says, that there are no
cases, really, apart from Maclay, dealing with the circumstances where remissions are not available. I would put it on the basis that the principle, if
it can be called that, in the Commonwealth
legislation is the appropriate approach to take.

Ghomari 10 15/11/91

The argument is fully canvassed in Maclay.

The arguments for either side of the decision are

canvassed in Maclay. It clearly comes down in

favour of the fact that the unavailability of

remissions should not be taken into account in the

manner in which the Commonwealth legislation

decrees that that should be done.

Your Honours, I do not think that there is

anything more that I can put on the application.

The arguments that I would seek to make are set out

in the application book and in the outline of

submissions. There is only one other matter that I

would refer to Your Honours. There is, I

understand, a case which is judgment reserved
before this Court of Leeth which was argued before
the Full Bench of the Court. I would seek to, if I
can put it this way, not abandon the point that was

raised in Leeth but, at the same time, I do not

seek to argue it.

GAUDRON J: Well, how do you seek to achieve that?

MR BYRNE:  If Leeth is decided in favour of the plaintiff in

the action in that case, then it would hold, as I

understand my reading of the argument, that

section 4 of the Commonwealth Prisoners Act is

invalid. That would apply to this applicant's

situation. He has been sentenced, effectively,

under section 4 of the Commonwealth Prisoners Act

as well.

DEANE J: So, what you were asking us to do is if we are

otherwise against you, to stand the application for

special leave over generally until the decision in

Leeth is known?

MR BYRNE:  Your Honour, I do not know, with respect, that that is necessary. From what I can derive from the

case, it would seem that if the plaintiff in Leeth

is successful then the legislation and particularly

section 4 would be declared invalid and that would

apply to all people who have been sentenced under

it, whether they have been applicants or appellants

before this Court or not.

GAUDRON J: But there may be differences about what then

applies in this sense: it may be that without an
appeal pending, people simply lose their non-parole

periods and new non-parole periods have to be set

under the Act.

MR BYRNE: Well, if that is a possible consequence of

Leeth -

GAUDRON J:  I mean, that may be. Mr Weinberg might be

better able to assist in that regard.

Ghomari 11 15/11/91

MR WEINBERG: If that is an invitation, Your Honour, it is

one I would like to decline but the view that we

have taken about the matter would be that this

prisoner was sentenced under the Sentencing Act as
picked up and applied by section 4 of the

Commonwealth Prisoners Act. If section 4 were to

be declared unconstitutional by this Court, it

would seem there is no basis for this prisoner to

have been sentenced under the Sentencing Act of New

South Wales. It would follow that a sentence in the form of a minimum term and an additional term

would be a form of sentence that would not have

been appropriate to this prisoner because he has

not received a sentence of the kind that normally
fits within Commonwealth legislation. Prior to the
Commonwealth Prisoners Act being enacted in 1967,

Commonwealth prisoners simply received sentences

and they were not called minimum terms or head

sentences or non-parole periods. It would then
follow that this prisoner would be serving a

sentence in a form which would seem to be a nullity or a matter that ought to be rectified in some way.

Just how that could occur is a matter that we have

not yet gotten to, Your Honour, but we would assume

that it would not have to come back to this Court

for special leave but that, rather, some mechanism

could be found for the matter to go back on the

basis that the sentence imposed would have been a

nullity. It would then be for the judge to

sentence.

DEANE J: Well, in other words, Mr Byrne, having raised the

point - - -

MR WEINBERG:  He has protected his client if his client

requires protection.

DEANE J: If special leave is required, a new application

could be made and it would be pointed out he has

raised the point. So, he would probably be in much

the same position.

MR WEINBERG:  We would say so, Your Honour.

DEANE J: Perhaps, if we were to refuse special leave, the

appropriate course would be without prejudice to

renew the application.

MR WEINBERG:  We would have nothing to say on that point,

Your Honour.

MR BYRNE:  Those are my submissions, may it please the

Court.

DEANE J:  Thank you, Mr Byrne. The Court need not trouble

you, Mr Weinberg.

Ghomari 12 15/11/91

This is an application for leave to appeal

from a unanimous judgment of the New South Wales

Court of Criminal Appeal dismissing an appeal

against a mimimum term of imprisonment of eight

years together with an additional term of two years

and eight months imposed upon the applicant by the

learned primary judge for an offence against

section 233B of the Commonwealth Crimes Act.

The applicant claims that the sentence imposed

was unduly harsh by reason of a failure of the
sentencing judge to take account of the fact that
remissions were no longer available. Section 16G
of the Crimes Act, which came into force shortly

after the applicant was sentenced, presently

embodies that principle.

Notwithstanding what has been said on behalf

of the applicant, we are not persuaded the case
involves any question of principle appropriate to
attract the grant of special leave for an appeal
against sentence to this Court.

In these circumstances, special leave to

appeal is refused. For the reasons which emerged

in the course of discussion, the refusal of special

leave is without prejudice to the applicant's

entitlement to apply in the future for special

leave to appeal.

MR BYRNE:  May it please the Court.

AT 3.29 PM THE MATTER WAS ADJOURNED SINE DIE

Ghomari 13 15/11/91