Green v The Queen; Quinn v The Queen
[2011] HCATrans 180
[2011] HCATrans 180
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S146 of 2011
B e t w e e n -
BRETT ANDREW GREEN
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S143 of 2011
B e t w e e n -
SHANE DARRIN QUINN
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 24 JUNE 2011, AT 10.02 AM
Copyright in the High Court of Australia
____________________
MR J.T. GLEESON, SC: May it please the Court, I appear for the appellant, Brett Andrew Green, with MR D.P. BARROW. (instructed by Legal Aid (NSW))
MS G.A. BASHIR: May it please the Court, I appear for the appellant, Shane Darrin Quinn, with my learned friend, MS A. BETTS. (instructed by Ford Criminal Lawyers)
MR C.K. MAXWELL, QC: If it please the Court, I appear for the respondent with my learned friend, MR P.A. LEASK. (instructed by Solicitor for the Public Prosecutions (NSW))
FRENCH CJ: Yes, Mr Gleeson.
MR GLEESON: Your Honours, in our outline we have identified as the first matter the statutory framework. We have provided to your Honours’ associates the provisions of the Drug Misuse and Trafficking Act under which Messrs Green and Quinn were convicted. Could I identify that they were both convicted on their plea of guilty under section 23(2)(a), which was cultivation of a number of plants not less than the commercial quantity, which in Schedule 1 was 250 plants. The comparator, the subject of our parity arguments, was Mr Taylor. He was convicted under section 25(2) of supplying not less than the commercial quantity; that is the same 250 plants.
The difference in sentencing emerged under section 33. Section 33(1)(a) applied to Quinn and Green because of section 23(2) and applied to Taylor because of section 25(2). Under subsection (2)(b) the maximum imprisonment was 15 years for cannabis and then because of subsection (3), if it was not less than a large commercial quantity, 1000 plants from Schedule 1, then the maximum was increased to 20 years. So it is through that route in the penalty rather than in the elements of the offence that the differing maxima arose.
BELL J: Then there is the standard non‑parole period.
MR GLEESON: Yes. So, your Honours, coming to that in the Crimes (Sentencing Procedures) Act, which your Honours should have attached to our submissions, the two places that we – so, taking your Honour’s question directly, yes, the standard non‑parole period of 10 years applied only to the large commercial quantity, not the commercial quantity. Then moving to the question of where parity comes into the statute in sentencing, that is in two places. Under section 21A of the Crimes (Sentencing Procedures) Act 1999 it comes in within the last sentence of subsection (1), that is:
other matters that are required or permitted to be taken into account by the court under any Act or rule of law –
are preserved. So the common law is preserved. There is nothing novel in what I am saying, your Honours. Then under the standard non‑parole period in section 54B(3) – and your Honours looked at this in Muldrock recently – the court can take into account any of the matters in section 21A in deciding to set a different period to the 10‑year period and therefore it can take into account any rule of law relating to parity.
Your Honours, as per our outline at paragraphs 4 and following, the starting point for our appeal is to submit that the trial judge was entitled to act as he did when determining an appropriate sentence for – I will simply refer to Mr Green, but most of what I say applies to Mr Quinn – to take into account as an established fact the terms and basis of the sentence passed upon Mr Taylor, whose conduct arose out of the same unlawful scheme, and to take into account that justice disfavoured a sentence on Green which displayed a marked disparity with the sentence on Taylor.
The primary case we rely upon which has enunciated that a sentencing judge may do that – many cases have said it – but it is R v Tisalandis (1982) 2 NSWLR 430 and the relevant passage concerning how the sentencing judge may proceed is in the judgment of Chief Justice Street at page 434, letter E over to 435, letter D.
FRENCH CJ: These were offenders of equal criminality?
MR GLEESON: Yes.
BELL J: And true co‑offenders.
MR GLEESON: True co‑offenders, so of course we need to invoke and do invoke a notion of relative parity in that they were persons involved in the same criminal scheme and in order to achieve justice you did not simply give them the same offence, you gave them one which took due account or allowed due proportion for the differences in their role, which is what the sentencing judge sought to do.
FRENCH CJ: What is the rule of law? Is it that the relative parity is a relevant consideration?
MR GLEESON: Yes, is the answer. But in terms of the role of the sentencing judge we would put it as Chief Justice Street put it, that in determining what is an appropriate sentence one of the relevant considerations is the established fact of the comparator sentence and that justice would disfavour a sentence which produced a marked disparity with that sentence, making due allowance for any differences in position. So it goes to the appropriateness of the sentence by the sentencing judge, rather than being, for instance, a factor that comes in after the sentencing process as some sort of discount through leniency, like it is a part of the essence of what is an appropriate sentence.
FRENCH CJ: In this case we are concerned with a different exercise, are we not, that is a Crown appeal against sentence where there has been no appeal against that which is said to inform considerations of relative parity.
MR GLEESON: Of course, that is what I am coming to, your Honour. But what I was seeking to identify as one of the critical errors that we submit Justice Hulme engaged in was that the Court of Criminal Appeal’s jurisdiction to intervene was, of course, under section 5D of the Criminal Appeal Act and that involved House v The King principles and what was needed was either an error, an identified error, within the first limb of House v The King, or a manifest unreasonable result within the second limb which bespoke some error not to be clearly identified.
Where we submit the first and major problem arose in Justice Hulme’s reasoning is that – and I put this rather directly - his Honour completely dismissed with a sideswipe the actual reasons of the sentencing judge. Those actual reasons did give parity a role, along with other conventional sentencing factors. What the Court of Criminal Appeal did not do was to start with those reasons and identify the error in them in the way the sentencing judge dealt with parity but instead dismissed them and engaged in a different exercise.
FRENCH CJ: Can you take us to the passage, if there be one, in Justice Hulme’s judgment which evidences that? I know we are talking about a negative, in a sense.
MR GLEESON: Yes. I will do that directly, your Honour, and I will then, if I may, come back to what the sentencing judge did so that I can expose his reasoning. In Justice Hulme - his Honour dealt with two groups of errors. The first are on pages 300 to 301, paragraphs 72 to 74, and that is what his Honour found to be an error in the giving of reasons under section 54B.
FRENCH CJ: Those grounds themselves did not lead to the outcome in the appeal. They were just ‑ ‑ ‑
MR GLEESON: Yes, but what those grounds reveal is what I am calling the dismissal by sideswipe argument because what his Honour found were two problems with the trial judge’s approach. The first problem in 72 was that the trial judge did not say in words where he put this offence on the scale of objective seriousness. That is an issue which your Honours debated in Muldrock as to whether you need in words to do that or whether you give your reasons, from which one can discern your approach. But, more importantly, his Honour said at about line 51:
Nor did his Honour comply with the requirements of s 54B(3) –
It should be subsection (4) –
to make a record of his reasons for reducing the non‑parole periods he imposed below the standard and identify each factor he took into account.
Then he is criticised for that. At 74 Justice Hulme says, well, not only will it be found to be manifestly inadequate, but had his Honour been more disciplined, that would have or might have prevented the error. We submit that this sentencing judge did give reasons which identified the factors that he took into account under section 54B(4) and in our outline at paragraph 7 we submit that the sentencing judge identified parity along with six other matters as his reasons for the sentence he gave. Having found he did not give any reasons, that is really the lead in to my answer to the Chief Justice’s question, the reasons are then dismissed and one never sees them again. In fairness to Justice Hulme, he had mentioned it at paragraphs 59 to 60 as part of the background, but never in the finding of appealable error do the reasons resurfacing.
BELL J: Can I raise this with you. When one turns to the sentencing judge – and this is at appeal book 242 – he speaks of concerns in achieving “some level of parity or at least comparability”. I think perhaps implicit in that is his Honour’s recognition that Mr Taylor had pleaded guilty to an offence having a lesser maximum penalty and, for that matter, no standard non‑parole period, but elsewhere one does not see that playing any role in the sentencing judge’s consideration of matters. This has been approached in terms of the arguments in the Court of Criminal Appeal largely on an acceptance that parity as a principle of sentencing applied – although I say that noting that the chief judge, I think, took a somewhat different view – but one does have to at some stage come to grips with the circumstance that Mr Taylor was being sentenced for a different offence, and when one looks at the principle of parity as it is explained in Lowe and in Tisalandis, one is looking at the notion of equal justice by virtue of the idea that people equally circumstanced are dealt with in the same way for the same offence.
MR GLEESON: Yes, your Honour, and then the question is whether people who are in a similar but not identical circumstance, and similar in that they are in the same scheme, different in two main respects: one, difference in degree of responsibility and role, and that is clearly taken into account by the sentencing judge; and second, different in terms of legal consequences, your Honour points out, in terms of the maximum penalty being different and one having a standard non-parole and the other not, but nevertheless, are those two matters of difference so stark as to destroy any operation of the principle, any need to have regard to equal justice. Now, our submission would be that those fall into the areas of differences which are to be taken into account, but not differences which destroy the operation of the principle.
BELL J: I am taking up with you how the principle operates when one has different offences and can I just, in that sense, draw your attention to the discussion that appears in the transcript of the sentencing proceedings where – this is at appeal book 81 – the Crown Prosecutor puts a submission that this is a not a case involving parity with Taylor, and offers a reason for why the Crown accepted a plea from Mr Taylor to the lesser offence, and there is a frank recognition that the Crown did not consider it could establish the more serious offence.
MR GLEESON: Yes.
BELL J: Now, that points up the sorts of differences that one sees in cases that were discussed in the matter of Jimmy, to which reference is made in this case, about the significance of parity in a context where you are dealing with different offences, albeit as part of the one enterprise, and it is really that which I think needs to be fleshed out in terms of what the principle is.
MR GLEESON: Yes. Your Honour, in Jimmy v The Queen (2010) 240 FLR 27, as your Honour indicates, there is discussion of how to deal with that situation, and the two key paragraphs are Justice Campbell at paragraph 203 and Justice Howie at paragraph 246. We would commend, as the principle, what was put at paragraph 246, and if I could just refer to that:
The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment.
BELL J: The limits that Justice Campbell set out in paragraph 203 included consideration of the difficulty of applying the concept in circumstances where the disparity is said to arise by comparison with the sentence on a co‑offender charged with an offence that is less serious.
MR GLEESON: Yes. The distinction I am seeking to draw, which may not find favour with your Honour, is, are we still in the territory where the principle has application but due allowance needed to be made for the two differences I have mentioned, in which event the question is whether the sentencing judge sufficiently did so, or are we in the area where because of the difference in penalty, what are otherwise two people in a common enterprise do not have any benefit from the principle? Our primary submission is that, as the trial judge found and as Justice Hulme found, Justice Hulme accepted parity in its relative sense, had a role to play, the principle was not eviscerated by reason of the different penalties.
FRENCH CJ: I think that is paragraph 100 of his judgment, is it not?
MR GLEESON: Yes. If we are wrong on that and the principle was eviscerated, then there was – it is not the error the Crown is alleging at the moment – but there then was error in the sentencing judge’s reasons and then we are in a different territory, but our primary argument is the principle was not eviscerated by that circumstance, it was a matter that needed to be accommodated.
BELL J: Can I just raise this with you. The decision of the Court of Criminal Appeal in Jimmy, as I read it, involved holding that the Court of Criminal Appeal should depart from a decision in an earlier case of Kerr in which a broad principle of parity, somewhat along the lines of the principle adopted in the minority judgment in this case, was embraced for reasons that include that when the prosecution charges people engaged in the same enterprise but with different offences, the court will not know the reason why one offender is charged with a lesser offence. The principle of parity has tended to be regarded as ensuring equal treatment for people charged with the same offence. It is difficult for the court, having regard to other principles of sentencing which include consideration of the maximum, to bring that to bear where one is dealing with people charged with different offences. I appreciate what I am raising, Mr Gleeson, is that seems to me to be an area that needs to be addressed.
MR GLEESON: Yes.
CRENNAN J: Is it not the point that if you disturb relativities between offenders who, for example, pleaded guilty to offences with different maxima, you can create a sense of grievance just as much as you create a sense of grievance where this is a disparity between true co‑offenders?
MR GLEESON: We would put that, your Honour. We are grappling with the requirements of a general concept of equal justice in these particular circumstances and what I am seeking to put is the concerns your Honour Justice Bell has raised would be relevant and we must address whether the trial judge sufficiently gave attention to them, but they do not destroy the command of equal justice in this situation. In this case, we would submit that the sentencing judge, in fact, did a very good job in sentencing a whole raft of people and he was acutely conscious in each of those sentences that there were some commands of equal justice which had to be taken into account. He dealt with those impolitely called the labourers. He dealt with people at the level of so‑called partners by allowing for differences between them. He dealt with the principle.
CRENNAN J: Relativity and proportionality are aspects, in a sense, of equality.
MR GLEESON: They are aspects of equality and this Court has emphasised a number of times that relative role, or relative responsibility, is an important aspect of the sentencing process and so for the sentencing judge to have that as an important consideration we submit was on the right track, on the right principle. Your Honours, we have to accept that Parliament has come in and said that if you are charged and it is over 1,000, the maximum, for the worst case, could be five years higher and we have to accept that you have a standard non‑parole period which you do not otherwise have.
But each of those would then only have their own proper weight in the sentencing process and one of the related matters I was going to put when your Honour the Chief Justice asked me earlier where do we show that the reasons were given a sideswipe is that when that car was driven off the road, what was put in its place was a different car which was a car which really took the three stellar points of the maximum of 20 years, the standard non‑parole of 10 years, and the maximum for the lower offence of 15 years, and everything Justice Hulme did really was to say, with those as the three stellar guiding points, when I look at the objective seriousness of what you did, this sentence had to be manifestly inadequate even giving your some allowance for subjective circumstances.
I hope I am not being unfair to the Court, but that is the essence of the reasoning, so that what has happened in the process is parity, which was given an important but not exclusive role in the sentencing judge, has been effectively dismissed. In its place this other structure has been erected and while our ground of special leave is only on parity, and so I should confine myself to that, you cannot dismiss the fact that when you read this judgment it appears to have all through it the sorts of approaches that the Court was looking at in Muldrock.
What his Honour has done is not only dismissed parity, he has also dismissed, as your Honours will have observed, 10 years of Court of Criminal Appeal decisions on comparable offences, because one of the things the trial judge achieved was a comparable result with those cases including Licastro, and what Justice Hulme has said is, this standard non‑parole of 10 years tells me that if you are objectively in the middle, Parliament wants you away for 10 years subject to any other matter. Therefore, when he resentenced, he started at 10 years for Quinn, a little lower for Green. So there is that interrelation between parity and what his Honour has put in its place when he has rejected it.
CRENNAN J: One way of looking at it, I suppose, is what his Honour is doing is he is looking at the guideposts, as you say, the three of them, and really forming a view that a sense of grievance would not be legitimate having regard to those guideposts.
MR GLEESON: We would put that, your Honour. It is those guideposts, or stellar points, as I have described them, which he said, in the light of that and then comparing what you got and looking at what you did, which is not in dispute, the discrepancy is so great you could not have a legitimate sense of grievance and so at the stage of whether there was appealable error, the two main points we are seeking to make is that the trial judge’s reasons on parity were wrongly dismissed altogether from the equation, but then secondly, the only time parity came back into the stage of appealable error is what your Honours will see – having reviewed the two streams of authority, it really comes back in between paragraphs 131 to 135.
So at this stage of the reasoning, Justice Hulme is saying everything else points to manifest inadequacy, “I will think about disparity because that will be created by what I propose to do and will I allow that to stop me finding error? No.” The answer seems to be paragraph 134, that given the stellar points and the extent of the inadequacy, there is appealable error. Then the resentence process starts at 136. The primary way we would put the point as per our outline is between paragraphs 10 to 14 and I appreciate this assumes, taking up your Honour Justice Bell’s question, that parity is in the ring. If it is not the ring, then 10 to 14 does not work, but if it is in the ring to some extent ‑ ‑ ‑
BELL J: It is a question of really how one takes a principle of sentencing parity which tends to be confined to persons charged with the same offence and extends that to a broader notion of proportionality maintaining – it is one thing to say that it is appropriate to have an eye to proportionality in a broad sense for people dealt with within the context of the one criminal enterprise, but it is difficult to articulate the principle with clarity for sentencing purposes when one moves from people charged with the same offence who are relatively comparable in terms of their subjective features as well, I would have thought.
MR GLEESON: Yes. The best we can offer is that if you have moved beyond identical offences, you still need people who are in a common enterprise. If they are not in a common enterprise, then you are outside the area of parity and you are into comparability with other decisions, but you do not have the special constraints of parity. If you are in the area of a common enterprise, our next submission is that equal justice still has a role to play. It is not dismissed from the equation. There is a command, a dictate of equal justice.
Then the third submission is that in taking into account all the factors in a single sentencing process, not a two‑step process, in determining the weight and extent of any differences between the sentences, one cannot ignore and must take into account the differing head sentence and the existence of the standard non‑parole period. They are factors which, as it were, moderate or inform what the command of parity will be but, in a sense, are no different in principle to saying, “Your subjective circumstances are radically different so that some allowance must be made for that,” or, “Your objective role within the enterprise was at a different level so some allowance must be made for that.”
This is another matter which comes into the equation and in terms of legal principle, your Honour, we would submit that what was said in another context in Postiglione v The Queen 189 CLR 295, with which your Honours are more familiar than me, would capture the point at a high level. That is at page 301, Justices Dawson and Gaudron, where their Honours said there that:
In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.
It may be that, as a number of judgments in that case emphasised, what the law seeks to avoid is marked disparity, not any disparity, it may be that the constraint is a weaker one in that sense, that what will be a marked disparity will not necessarily be readily established. The other passages, of course, if I could just give the page references, 309 Justice McHugh and 323 Justice Gummow. So I am not sure, your Honour Justice Bell, if I have offered a statement of principle that answers the question and, as your Honour discussed in Hili and Jones, it is statements of principle or of legal principle where there needs to be clarity and consistency across the nation allowing for variations in fact and discretion in the cases.
If one were to apply the test I proffered to this set of reasons, the question would be, was there sufficient regard by the sentencing judge to the fact that he did have the constraint of a standard non‑parole period and a higher maximum sentence which he did not have when he sentenced Mr Taylor? That would be the area of arguable error, did he sufficiently recognise that? Our submission would be that he began with those very differences on page 230 and, as your Honour has observed, he referred to them there. The next place that parity came in was at page 232, lines 30 to 50. He there speaks of:
achieving some parity or at least some comparability in the sentences to reflect the differing levels of their criminality –
Criminality, if read amply, might include a recognition of what his Honour has referred to at the outset, namely, the criminality measured by differing penalties. His Honour then, we would submit, in significant detail and fairness, reviews all the facts of the objective serious of the offences and there is no challenge to the fact that he took all that into account. At page 238, about line 35 Mr Quinn’s subjective circumstances are reviewed and the same for Mr Green at 240 to 241.
General deterrence was given important weight at the bottom of 241 and over the page and then we come to the passage that your Honour raised with me about some degree of parity or comparability. I think it is fair to say that in that paragraph his Honour, expressly at least, is referring more to the differing roles rather than expressly coming back and saying, “I then must remind myself yet again that there is an additional factor that is present for one but not the other.” When he then came to the discount for the plea, which is page 243, between lines 30 to 50, we would submit there is no error there, and I do not think that is separately challenged now. It was challenged below so he gave these gentlemen 20 per cent, Mr Taylor got 25 per cent. He then quite correctly referred to the comparable cases and placed some weight upon Mr Licastro and then really moved to the concluding reasons at page 245.
If your Honours considered that he needed to go further in terms of reasons or of exposition of reasons to say, “When I am talking about a level of parity I mean to take into account both differing roles and differing penalty”, well, that may be an issue about the reasons and then it is a question whether that is an appealable error which should have entitled the Court of Criminal Appeal to intervene.
BELL J: Can I raise this further difficulty. All the members of the Court of Criminal Appeal were of the view that the sentences on the two appellants were manifestly inadequate, so what loomed large was the consideration of the appropriateness on a Crown appeal of intervening against that consideration. When one comes back and looks at the circumstance that you have Mr Quinn in his 30s, the principal, pleading guilty to the offence carrying the greater maximum and it being submitted that the reason for not interfering, notwithstanding the finding of manifest inadequacy, is that an offender described as being 19, I think in fact he was 20 at the time ‑ ‑ ‑
MR GLEESON: He was 21, I think, your Honour.
BELL J: He was 20 at the date of the offence, I think. One gets his age, I believe from the sentencing remarks of the judge. He was 22 at the date he stood for sentence on that day, which was June 2009. So one at some point might ask – Justice Hulme proceeds on the basis that it is noteworthy that the Crown did not appeal the inadequacy of the sentence imposed on Kodie Taylor. Another view might be that for a 20‑year‑old pleading guilty to the lesser offence, having a role falling short of either being a principal or of the level of your client, while lenient, might have rightly been considered to be not outside the range.
MR GLEESON: That is not the way his Honour viewed it.
BELL J: I understand it is not the way his Honour approached it, but it is a matter that I am raising with you.
MR GLEESON: Yes, thank you, your Honour. Can I say two things about that. The first is it is correct that all five judges said the sentence was manifestly inadequate. One of our anterior points, which is paragraphs 10 to 14 of the outline, is that it was not appropriate to conclude the sentences were manifestly inadequate without having addressed the anterior question of parity, that is that parity can come in in two ways. One way is at the final stage of deciding whether appealable error perhaps in some discretionary exercise, and we will come to that, but at the anterior stage of the judge having explained what was his approach to parity, the Court of Criminal Appeal not in terms saying what was erroneous about that approach, the Crown not appealing Taylor, the Crown not submitting that Taylor was a manifestly inadequate sentence. What Justice Hulme seems to have done as an element in his reasoning – it is paragraph 142 – is to say, “The reason I ignore the” – well, he said at that stage “some allowance” but:
Particularly relevant in that connection is that Mr Taylor’s sentence was so obviously manifestly inadequate that it is prima facie extraordinary that the Crown did not appeal and the Crown provided no reason why it did not.
So in terms of this point of principle we are seeking to raise, which we do press, is it appropriate on a Crown appeal where the accused has been sentenced on the basis of parity for the Court of Criminal Appeal to dismiss the comparator sentence as manifestly inadequate when the Crown has not appealed, has given no reason, that is the strongest point, but the follow‑up point is, even within the context of this appeal there has not been detailed consideration of why Mr Taylor’s sentence is manifestly inadequate. That, in fact, in part comes back to your Honour’s question, why did this Court of Criminal Appeal think Taylor’s sentence was manifestly inadequate? We simply do not know the reasons for destroying the comparator.
The legal principle we are contending for is, if you wish to destroy the comparator and if it is the Crown appeal, there ought to be a Crown appeal in respect of Mr Taylor. If not, there ought to be explanation. If there is no explanation, then that plank in the sentencing judge’s reasoning has not been destroyed. That does not answer your Honour’s possible way of looking at it, but it is a submission we do wish to put on what Justice Hulme did, that he has destroyed the comparator without there being the proper foundation to do it.
In terms of your Honour’s question, which would be more in terms of an overall assessment of whether there were reasons why Taylor’s sentence might be regarded merely as lenient, Mr Taylor was younger, he was 20, Mr Green was about four or five years older. They were both considered to be partners in the enterprise with a differing degree of responsibility and on the sentencing approach of the trial judge – your Honours see from paragraph 6 of our note – Mr Green was given two years as opposed to one and a half years for the non‑parole and four years as opposed to three for the head sentence.
Viewed through the light of your Honour’s question, the question would be, given that a sentence was established that was appreciably, but not more than that, higher than Mr Taylor, allowing for the similarity of roles in the common enterprise but accepting the differences your Honour has pointed out - age, somewhat differing responsibility, the different penalties - but then allowing, as the sentencing judge did, for what was strongly in Mr Green’s favour in terms of his prospects of rehabilitation and his subjective circumstances, which his Honour said were far stronger than those of Mr Taylor, that was another important part in the overall sentencing process.
So those factors pointing in both directions to strike that additional sentence, would that be outside the range of what a sentencing judge could do, if it is viewed in that prism, our submission would be the Court of Criminal Appeal ought to have left that intact looking at that degree of relative comparability absent circumstances which destroyed Mr Taylor as a comparator. I think I have tried to review the main circumstances that would point both ways on that, your Honour. Then in Mr Quinn’s case he has been sentenced at a higher level of course.
Your Honours, where I have reached is to offer your Honours our primary point which is an anterior point to any of the judges in the Court of Appeal and I have broadly covered the material in paragraphs 15 through to 17 of the outline. Then could I come to the secondary point, which is if one assumed with Justice Hulme that you could get to a strong provisional finding of manifest inadequacy and on this reasoning, which we do not commend of course, you have not yet taken parity into account, his Honour then says that the question I should pose – this is what I went to at paragraphs 133 to 134 – is should I regard the disparity which I am about to create as a reason not to intervene? What his Honour has done at that stage is said, having looked at it, disparity is not a reason to not intervene, so it does not stop his Honour going ahead and finding appealable error and finding a resentencing.
FRENCH CJ: It should not otherwise be a bar to the success of the appeal.
MR GLEESON: Yes.
FRENCH CJ: You disagree with that proposition?
MR GLEESON: Yes, firstly, in terms of the form of reasoning ‑ ‑ ‑
FRENCH CJ: He is accepting that it is a relevant consideration, is he not?
MR GLEESON: At a particular stage ‑ ‑ ‑
FRENCH CJ: But he is rejecting the notion that it forms some kind of absolute bar.
MR GLEESON: Yes. Our primary point is, of course, that he has deferred it to, as it were, a 23rd hour/24th hour consideration, having already found this is manifestly inadequate, having not addressed how the trial judge had treated parity. Parity has been dismissed to the final step in the process. Then the question he is asking is “Is it a reason not to do what I am otherwise minded to do?” That, we submit, is not to give it its role in the place of equal justice.
One matter we submit is rather odd, your Honours, is that back at paragraph 122 where his Honour accepts Tisalandis and says the sentencing judge can take parity into account, when he comes to the appellate court, and without the comparator being destroyed - parity now has this role of is it the ultimate bar - and his Honour’s reasoning, and this is where the two streams of authority become important, reduces to what is in paragraph 134, that in the end if you think there is a sufficient difference between the sentence pointed to by the statutory periods and the actual sentence, then parity is not a reason to not intervene.
Now, that is the proposition that we challenge on the ground that that has failed to give parity its role in a Crown appeal. At that point the line of cases which his Honour dismissed becomes important. Your Honours have seen them, but could I just briefly review them. They commence in paragraph 101 with the decision in McIvor.
FRENCH CJ: Can I just take you back to the proposition – you are characterising Justice Hulme’s reasoning as embodying the proposition that parity is not a reason to not intervene.
MR GLEESON: Yes.
FRENCH CJ: In other words, you are characterising him as dismissing parity entirely, because I thought the thrust of his reasons was that it was even, at this stage, a relevant consideration but then outweighed by others, in effect. Is that not how he really words it?
MR GLEESON: I do not want to overstate it. What I was seeking to put was that having not given it any real substantial work to do in coming to the strong provisional finding of manifest inadequacy, what his Honour does is says it is like an ultimate constraint. “Just before I go ahead and conclude, as I am minded to conclude, is there something in parity which would cause me to draw back?” At that point, the principle his Honour is proposing is paragraph 134 which is, “Even on a Crown appeal I should not allow parity to – or disparity to cause me to pause whenever I see a sufficient difference between the statutory periods and the sentence which they, of themselves, would point to and the sentence I am reviewing”. So at that point parity will always be dismissed, simply by looking at that comparison between the statutory periods, what they point to and the actual offence.
CRENNAN J: But you cannot leave out of account, can you, his Honour’s view that Taylor’s sentence was manifestly inadequate? So his Honour is in the territory, and it is covered a lot in many of the cases, that an appellate court can find itself in a situation where the co‑offender’s sentence, not appealed by the Crown, is manifestly inadequate. The sentence before the appellate court is manifestly inadequate and you are then in the territory, well it may not be appropriate to make another wrong decision, as it were, by exercising a residual discretion not to intervene. So you have to come to grips with that, do you not?
MR GLEESON: There are two elements in that.
CRENNAN J: That is to say it is not just a question of looking at what you are calling the stellar points or the guideposts. The other element to his Honour’s decision, I think, is the starting point that the Taylor sentence was manifestly inadequate.
MR GLEESON: Yes, now I have sought to criticise that on the ground that ‑ ‑ ‑
CRENNAN J: I appreciate that you have done that.
MR GLEESON: ‑ ‑ ‑ that he has asserted that, but we have no reasons for why it is manifestly inadequate. He did not have the whole materials. The court would not ordinarily have all the materials of Taylor ‑ ‑ ‑
CRENNAN J: It seemed to me, I mean without naming names, many cases in this whole field of discourse, where in that context Crown appeal, no Crown appeal in relation to a co‑offender sentence, where Courts of Appeal have expressed a view that the co‑offender sentence is manifestly inadequate. I mean there are, I think, many of them.
MR GLEESON: There is no doubt that is in the cases.
CRENNAN J: Even though they have not explained themselves on the face of the reasons anyway and sometimes the observations seem to be of the order, well this is clearly manifestly inadequate. If you take Diamond’s Case, for example.
MR GLEESON: Yes, and often that is in the context of one offender being given a ‑ ‑ ‑
CRENNAN J: Very light.
MR GLEESON: ‑ ‑ ‑ a weekend pass and the other offender having six years ‑ ‑ ‑
CRENNAN J: Nine years or something, yes.
MR GLEESON: ‑ ‑ ‑ and one might not need to have too much more. But in a case where the sentencing judge has provided substantial periods of imprisonment for all offenders, has provided reasons and has explained where he sees the parity between them, then to have the Court of Criminal Appeal say, as if it just speaks for itself, Mr Taylor’s sentence is manifestly inadequate, where on our review of the Court of Appeal transcript not even the prosecution asked for that finding in terms - the most they said was it might have been lenient or it may not have been a complete comparator - but, we submit, there is, particularly in the Crown appeal, a vice in that being erected as a plank of the reasoning, where it is being used to this consequence.
KIEFEL J: Your other point is that, in any event, the sentence unappealed – Taylor’s sentence unappealed remains the fact and that if the Court of Appeal is going to accede to the Crown appeal the disparity is thereby created.
MR GLEESON: Is thereby created and so ‑ ‑ ‑
CRENNAN J: So you are in the territory where the potential for disparity at the appellate level can partly be laid at the foot of the Crown.
MR GLEESON: Yes, and in that area, if we are in the discretion the proposition we then contend is expressed as the minority expressed it in this case, and that is particularly in paragraph 9 and paragraph 23. In other words, on the Crown appeal, where the Crown has not challenged the other sentence and where it had a role in the reasoning as a comparator, then, ordinarily is the way we would put it, ordinarily it would be a good and sufficient reason for the appeal court not to allow the appeal, that it will be creating marked disparity and the rider to “ordinarily” is that proposed by Justice Allsop for the extreme case, not this one, where that would be to leave intact a derisory sentence. This sentence, his Honour correctly said, could not be regarded as in the range of a derisory sentence because it imposed a substantial period of imprisonment for a serious crime.
So on that strand of the argument, if I could just move to that. Your Honours, this is paragraphs 18 and following of our outline. Your Honours may have had a chance to review some of the cases in the competing strands. They commence, as we commend them, with R v McIvor (2002) 136 A Crim R 366. Now, we accept that in that case, as seen from the headnote, the offences appear to be the same. They were co‑offenders in the strict sense and they were persons who apparently had similar subjective and objective features. So the constraint of parity would be at its strongest in that area.
It was a case where the Crown appeal in one case was dismissed on grounds of delay and the question in the matter of discretion was dealt with at paragraphs 9 through to 11. The concept of a legitimate grievance underpins the argument. The respondents put to your Honours that this case is too far removed from the present to be of assistance in the problems we are dealing with. We would submit that, bearing in mind the factual differences, the underlying legal principle, it is an important one and a correct one, that on the Crown appeal where marked disparity would otherwise be created by allowing the appeal that would be a good and sufficient reason not to allow the appeal unless one was in the case of leaving a derisory sentence intact and these were not derisory sentences.
The reasoning in that case was criticised by Justice Hulme. Could I go that between paragraphs 119 to 125. The criticisms seem to be these. The first criticism in 120 is that the identification of a legitimate grievance in these circumstances is a matter which a court could not find because it is neither self‑evidently true nor proven by a form of either conventional evidence or judicial notice. We would reject that criticism on the ground that the court’s identification of when a legitimate grievance is a matter to take into account is an essential step in all the jurisprudence in this area from Lowe and all of the other cases and the suggestion that one would need to call evidence to mount such an argument is inconsistence with the criminal law’s approach to that issues.
Then in paragraph 121 the criticism seems to be that if we are to speculate about legitimate grievances – people will always complain, it seems to be that line of country and whether it is an offender’s appeal or a Crown appeal, people will always be unhappy, so the law should not really give significant ‑ ‑ ‑
FRENCH CJ: This is a really kind of construct, though, is it not, to inform the application of the equal justice principle?
MR GLEESON: Yes, that is what it is, your Honour, and the short point I am coming to is that none of these criticisms by Justice Hulme, we would submit, are sound. So that is really the answer to those criticisms.
FRENCH CJ: Can I just ask you, having regard to the statement by Justice Hulme at 142:
that Mr Taylor’s sentence was so obviously manifestly inadequate –
you may have covered this before, but was there any submission put by the Crown to the Court of Appeal to identify either error in the sentencing of Mr Taylor or to characterise his sentence as manifestly inadequate?
MR GLEESON: The answer to your Honour’s question is no. If I could just read from the Crown’s submissions for hearing on 17 December 2009 at paragraph 29, which said this – it is not in the book:
While Taylor may have fallen into the “middle” of the hierarchy, he was not part of the joint criminal enterprise to grow a large commercial quantity, and was less involved than the respondents. Although treated leniently in any event, the charge for which he was sentenced carried the lesser maximum penalty of 15 years imprisonment, and attracted no standard non‑parole period.
So it was put on the ground of a lenient, but never manifestly inadequate. To the extent we criticise that part of the reasoning, while we accept that in many cases it is so obvious that an appellate court might conclude manifestly inadequate, in a case where this was really a central part of destroying the comparator, when the Crown did not urge manifest inadequacy for a very proper reason, it is not an acceptable strand in the reasoning to just conclude that and then use that to destroy the parity.
FRENCH CJ: It might be useful for us to have a copy of the Crown submission, I think, at some stage. It need not be handed up now.
MR GLEESON: We will have copies of that made, your Honour.
BELL J: The difficulty with that last submission is that the Crown did not contend Taylor’s was manifestly inadequate because it maintained that Taylor’s sentence was for a different offence, that Taylor was, as the submission put it, not part of the joint criminal enterprise to cultivate a large commercial quantity of the drug. Accepting the correctness of McIvor and the sound reasons for the exercise of the discretion not to intervene in Borkowski, one comes back to considerations here at appeal book 318, paragraph 116.
Reference is made to the decision of the Victorian Court in Bulfin (1998) 101 A Crim R 40 at which the Court, as I would understand it in the context of a case involving parity conventionally understood, was sounding a cautionary note about the reasons that may inform a prosecutorial decision not to bring a Crown appeal. One would have thought that to be very much in the ring here where one is looking at a youthful offender – and 20 still tends to attract the particular sentencing principles relating to youth which, by the mid‑twenties and certainly by the thirties do not apply – being sentenced for a lesser offence.
MR GLEESON: Yes. I appreciate the force of your Honour’s observations. I am compelled to put, however, that what your Honour is asking is in a territory we must meet but we do by saying it is not what Justice Hulme held this case to be about and we can only proceed it a step at a time. We reaffirm our point that it is not appropriate for a criminal appeal court to find the comparator is manifestly inadequate when they have not done it by separate appeal, when they have not even asked for it in this case and that that was a central part of Justice Hulme’s reasoning and it was an error by him under section 5D which of itself would be sufficient to find appealable error that this Court would then need to deal with.
Now, if we were looking at a stage of that being one of a number of errors in what the Court of Criminal Appeal did, we would have to address your Honour’s question in the context of, what would this Court do for these gentlemen? The options would be, if we got to the stage of error in the Court of Criminal Appeal, send them back there for an appeal, which one would hope would come on and be decided earlier than this one, but in the circumstances of the delay that has occurred in this matter, the likelihood would be that that appeal may not be heard and decided until after the expiry of the sentence that at least Mr Green now, he says, wrongly faces.
That would be one factor to take into account, that to send us back would almost be futile in terms of being able to effectively challenge and be relieved from the sentence that Mr Green contends is erroneous. Another factor would be the matters referred to by Justice Allsop and Justice McCallum as to whether to leave intact the sentence on Mr Green, even if that of itself were regarded as involving a degree of leniency or at the lower end, would of itself be an affront to justice, and we would submit it would not, because of the substantial term it imposes.
We have to accept that your Honour’s questions are a more fundamental in some senses and in other senses are a more conventional way of how this matter might have been dealt with in the Court of Criminal Appeal, but our contention is the judgment we got had legal error in it and the right remedy from this Court would simply be to allow the appeal. So your Honour’s question has also anticipated that I was going to deal with the other cases in this line of authorities. One of the reasons why it is appropriate that this matter be before the Court on a grant of special leave, we would submit, is that there is a strong tension, at the least, between the McIvor line and the approach which Justice Hulme is adopting and, more so, the approach of Justice McClellan. It is a step in our argument that your Honours should adopt the correctness of the McIvor line. The second case in that ‑ ‑ ‑
CRENNAN J: But are they really antithetical? On one view, each is a response to the particular facts of the cases. There seems to be a line over which you can tip where there would be an affront to justice if the Court of Appeal does not intervene, but there is the other side of that line in cases like McIvor where you may have demonstrable error on a Crown appeal.
MR GLEESON: Yes. Your Honour, the reason that there is a line and not just an application of the same rule in part is because of the stellar points that I had referred to previously, that the two things which lead Justice Hulme to say “I can dismiss parity as a reason to not intervene are”, as we have seen, “that at the end of the day I just go back to those statutory points and I ask what sentence would they dictate? Twenty years would dictate 20 years. Ten years would dictate 10 years. Then I will look at what you have got. That difference is just so great, there is manifest error.”
Now, that form of reasoning is the very form of reasoning which has been condemned in Markarian, which was dealt with in the argument in Muldrock. So there is a more fundamental point of principle which is that you can sing the parity tune, but it is always going to be, in effect, overridden on the Justice Hulme approach provided a judge says there is a big enough difference between the statutory periods and what you got. I do not wish to overstate that, but I am trying to get to the heart of it.
Parity will always be trumped through that approach and that is why those who instruct me contend that the case is and will be of dramatic significance in the Court of Criminal Appeal if it is allowed to stand, because the form of argument that will be commended is the argument in paragraph 134 as a reason why parity will, and disparity, will ultimately be dismissed. So that is one strand of his Honour’s argument. The other strand, of course, is that you dismiss the comparator without that being done in the proper manner.
BELL J: Another aspect of his Honour’s judgment that should not be overlooked is that he annexed a schedule to his judgment involving an analysis of cases broadly comparable.
MR GLEESON: It is what he did with that schedule, your Honour
BELL J: Yes.
MR GLEESON: Again, I cannot stray beyond ‑ ‑ ‑
BELL J: Do you say that the schedule does not support the conclusion?
MR GLEESON: Yes, but I will show your Honours that and I do not want to stray beyond the grant of leave, but it is related to perhaps what your Honours do with the matter. At paragraph 95 ‑ ‑ ‑
BELL J: Is that is the view that there was a need for it to go up because of ‑ ‑ ‑
MR GLEESON: It needs to up. I will show your Honours that the schedule – if we go to it at page 328 to 330 – and accepting differences between different cases. If one looks at what the Court of Criminal Appeal had left in place or ordered over the last 10 years; Giacobello is four years over three years, Skorin is four and a half years over two years, nine months, Mammone is five years, either months over three years, six months. The next on is four years, five months over two years, five months. So they are in the order of four to five or six years and the strongest penalties, for instance, R v Cannistra, which is line 40 on page 329, 30,000 plants, $58 million, nine years over five years, 10 months.
Even Justice Hulme, when he looked at the schedule commencing at paragraph 89, said that if you took Skorin and Mangano, you would start at eight years for Mr Green. Justice Hulme has started at 10 years for Mr Green, that is paragraph 140, and he has done it for the transparently exposed reason in paragraph 94 that Parliament intended by the 10‑year standard non‑parole period to increase the level of sentences, even those which the Court of Criminal Appeal had consistently and carefully adopted over a 10‑year period. That form of reasoning in paragraph 94, we would submit, contains all the errors dealt with in the Muldrock transcript because to draw that conclusion about parliamentary intent is completely the straightjacket the sentencing process.
Your Honours, we would observe that – R v Way is referred to in the bottom of paragraph 94 – what Chief Justice Spigelman said in that case is the exact opposite to what Justice Hulme has taken from it. The very thing he said in Way was it would be very dangerous to assume that the parliamentary intent was to increase offences. That is at 60 NSWLR 168, particularly at 141, that:
There was no mention in the Second Reading Speech of any dissatisfaction with the general level of sentencing for the Table offences, or of any intention to increase the time that persons convicted of them should remain in custody.
In 142, the outcome will depend upon a range of circumstances in the case. So what Justice Hulme has done is to say the 10 year standard non‑parole is a parliamentary intention that if you are mid range, subject to anything else, you should be away for a minimum of 10 years and that ‑ ‑ ‑
KIEFEL J: You are straying rather from your grounds of appeal, are you not?
MR GLEESON: I am, so I can only use that word that is in our note called “intertwined”. I was attempting to make it relevant to the ground of appeal by answering the question, are these just differences on the facts of the case?
KIEFEL J: You gave it your best shot.
MR GLEESON: Thank you, your Honour.
HEYDON J: Another thing you have strayed from is your analysis of paragraph 121. I did not quite catch your submission on that, but if now is not a convenient time, let us postpone it until a convenient time.
MR GLEESON: Yes. In relation to 121 of the judgment, his Honour having said that the court should not and cannot know about grievances without evidence has then moved to say nor should you make findings about the quality or nature of the grievance depending upon whether it is a Crown appeal or an offender’s appeal. We would respectfully submit that that was not really the point being made at that part of McIvor and certainly not the point taken up by Borkowski. The point was more the considerations of if the Crown is the arm of the State, if it has within its ability to bring appeals where it considers properly there is manifest inadequacy, if it chooses not to, we assume responsibly, then if the court then says we will pass the order which will create marked disparity and we will find that other sentence was manifestly inadequate, even though that was not really joined, how does that bear upon the full interests of the administration of justice?
As your Honour the Chief Justice put to me, with respect, the concept of the sense of grievance is an aspect of the elaboration of the larger question of the demands of equal justice and how they would be understood by the law. I appreciate the difference between the two streams is exposed to some extent in the judgment. We are submitting there is a difference and it is one the Court should consider.
In the case of Justice McClellan, who we submit took a more extreme view, at paragraph 33 he said McIvor “should not be followed” and at least it is clear what the principle is he is contending for. It is a bright
line rule. The only focus of the appellate court – and one might infer the sentencing judge, although that is not clear – is, “I should not leave intact an inadequate sentence and any comparator, however relevant, should not distract me from that task”. Now, that is a test which Justice Latham has agreed with, as well as agreeing with Justice Hulme, so that is an issue as to what that agreement means, because it is a bright line test which, we submit, has completely destroyed a role for parity at the appellate level and one asks, has his Honour removed it at the sentencing judge level as well? That is not clear.
Justice Hulme certainly thought he was also departing from McIvor. He regarded it as, at paragraph 118, a question of the court being faced with inconsistent decisions and he would have to go back to first principles to provide his answer to the decision and we would submit in the end it is very difficult to capture what role parity has in Justice Hulme’s approach. It is one thing to say it is a relevant factor, but has his Honour really elucidated its proper role or is it really simply a role likely to be swallowed up in most cases for practical purposes, as we would contend? We have also mentioned on our list of authorities the decision of Chief Justice Spigelman in R v Bavin [2001] NSWCCA 167. That is a decision slightly before McIvor, but one, we would submit, consistent with it and correct. The relevant part is at paragraphs 50 and following.
CRENNAN J: Especially 59 and 60, I suppose, combined with 69 and 71.
MR GLEESON: Yes, that is the key part. So we would urge that as the statement of principle in preference to Justice Hulme or to Justice McClellan’s approach at the other end. Unless your Honours have questions, that is what we wish to put.
FRENCH CJ: Yes, thank you, Mr Gleeson. Yes, Ms Bashir.
MS BASHIR: Your Honours, I adopt the submissions of Mr Gleeson of senior counsel on the appeal and I wish to address further some questions raised, commencing with your Honour Justice Bell’s questions as to Jimmy and the principle of parity or relativity and how far it should extend. Your Honour, on the Crown list of authorities is the decision of the Supreme Court of Victoria, the Court of Appeal, in Farrugia [2011] VSCA 24. It is unreported, your Honours. From paragraphs 8 on the court considered the application of the parity principle to persons who are not strictly co‑offenders and considered the decision of Jimmy specifically from paragraph 11. There is a summary of Jimmy and the relevant paragraph that your Honour drew attention to earlier at paragraph 11 and at paragraph 15 it is noted that in that case:
The Crown submitted that the parity principle should not extend beyond persons who are not strictly co‑offenders.
That submission was rejected by the court and there was an analysis of other cases where there were instances of:
common criminal enterprise which attracted parity reasoning –
at paragraphs 16 down to 17. That was a common criminal enterprise of offenders charged with different counts but in relation to possession of heroin and then further down, at paragraph 19, a decision of OM in the New South Wales Court of Criminal Appeal where there had been a series of sexual assaults on the same girl but different offenders charged with different offences.
BELL J: Exactly, and in that case reference was made to the young men, each of whom had been charged with sexually assaulting the same young woman on the same occasion as co‑offenders, although, of course, in a legal analysis they were not; each was a separate offence. Those cases raise one question about what it means to be a co‑offender and what room exists for the principle of parity. The case of Jimmy involved also a consideration of cases involving what might be broadly described as one enterprise but where people are convicted of different offences within the context of the overall enterprise and it was in that context that the court in Jimmy said that the earlier decision of Kerr embracing a broad principle of equality, which sought to look behind, as it were, the different offences with which individuals were charged and arrive at some notion of parity, was to be rejected.
Just while we are on that page, if I could take you down to line 33? The Crown submitted, “parity does not apply”, that is, parity in the strict sense, but accepted that, “Consistency in sentencing has some application, but it’s limited”. So that was the position taken by the court below. The sentencing judge then in the very first and second paragraph of his sentence refers to the “standard non parole period” at line 31, and repeats really the Crown’s proposition at about line 44, that despite the fact of there being a plea – and, of course, there were special circumstances and so forth – that it had “a guideline role in sentencing”. Thank you.
FRENCH CJ: Yes, thank you, Ms Bashir. The Court will adjourn briefly to consider what course it should take.
AT 12.31 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.47 PM:
FRENCH CJ: Mr Gleeson, do you have your proposed additional ground?
MR GLEESON: Yes, I do, your Honour.
FRENCH CJ: Have you shown that to Mr Maxwell?
MR GLEESON: Yes, your Honour.
FRENCH CJ: It would be also useful if we had a copy of the transcript of argument before the Court of Appeal.
MR GLEESON: Yes, I will provide that, your Honour.
FRENCH CJ: So the ground which you propose to add is the Court of Criminal Appeal erred in finding as an essential step in the reasoning that the sentence on the appellant was manifestly inadequate, that the sentence previously imposed on Taylor was also manifestly inadequate in circumstances where such finding was not sought by the Crown and the court did not give the parties the opportunity to argue the point before making such finding?
MR GLEESON: Yes, your Honour.
FRENCH CJ: I think we have one set of submissions that were before the Court of Appeal, do we have the others? Perhaps we should have all submissions that were before the court.
MR GLEESON: We can provide all of those over lunch, your Honour.
FRENCH CJ: Yes. Mr Maxwell, you have no objection to that ground?
MR MAXWELL: No, your Honour.
FRENCH CJ: All right, well, the Court will extend the grant of special leave – I am sorry, Ms Bashir, you would obviously join in that ground.
MS BASHIR: I would, yes, thank you.
FRENCH CJ: The Court will extend the grant of special leave to both parties to enable them to add that ground to the ground of appeal and the grounds of appeal are amended accordingly. The Court will reserve its decision and will adjourn till 10.15 am on Tuesday, 2 August 2011.
AT 12.49 PM THE MATTER WAS ADJOURNED
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