Green v The Queen; Quinn v The Queen

[2011] HCATrans 100

[2011] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2011

B e t w e e n -

BRETT ANDREW GREEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S61 of 2011

B e t w e e n -

SHANE DARRIN QUINN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 12.37 PM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant, Green, with my learned friend, MR D.P. BARROW.  (instructed by Legal Aid NSW)

MS G.A. BASHIR:   If the Court pleases, I appear for the applicant, Quinn.  (instructed by Ford Criminal Lawyers)

MR I.D. TEMBY, QC:   May it please the Court, I appear for the respondent in both matters.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  There are essentially two subjects, one relating to parity and the other relating to the standard non‑parole period, although the second brings in a question about the correct application of this Court’s decision in Markarian.  If I could take the Court directly to the minority’s decision in the Court of Criminal Appeal at application book 38, after considering the decisions in McIvor and Borkowski, and showing briefly but succinctly why creating a disparity on a Crown appeal is different than correcting one on an offender’s application, the court observed at paragraph 10 that none of the cases relied upon by Justice Hulme in his judgment actually addressed the essential question considered in McIvor, and that the dichotomy, as it were, referred to and in the centrepiece of his Honour Justice Hulme’s judgment -their Honours deal with that at paragraph 11 saying that essentially such a dichotomy does not exist having regard to the nature of the appeal.  Then we see at paragraph 23 the two reasons why the court would dismiss the appeal, the minority.

Now, if we go then to Justice Hulme’s judgment at paragraph 101, first of all we would see why at paragraph 100 an acceptance, as did Justices Allsop and McCallum, that parity did apply in this case, and his Honour Justice Hulme accepted at paragraph 100, page 63, that it applied particularly in the case of Green.  His Honour then considered the decisions in McIvor, Borkowski at 65, and Cvitan, each of which were statements of principle against the position taken by Justice Hulme.  So too was a decision in the case of Bavin in the Court of Criminal Appeal.

Having considered those his Honour then turned to a series of cases, all of which were decided, except for the first on page 68 called Guthrie, but Guthrie really did not consider the question of principle at all.  Then his Honour recited a series of cases, decisions, all delivered by him but in which other members of the court agreed, but as a matter of stare decisis at a time starting with Harmouche where his Honour was at least bound by McIvor and Bavin, and in terms of time the most recent statements of principle coming in Borkowski and Cvitan.  His Honour then deals with a series of cases in which he expresses views about the matter, but as Justices Allsop and McCallum point out, none of them consider the essential question and they are all about disparity on offender’s appeals.

Then we come to page 72 and paragraph 113, and his Honour places heavy reliance on – we see Kumar and Feagaiga.  Special leave was sought in that case and the Crown’s essential argument in this Court was that parity did not arise on the facts of the case.  Special leave was refused.  We pointed out in the Court of Criminal Appeal that refusal of special leave has no value as precedent, yet at paragraph 115 his Honour regards it as giving “substantial support” to the position taken by his Honour, and that is a matter of real importance in terms of the day‑to‑day workings of intermediate courts.

CRENNAN J:   Did not the Victorian Court of Appeal find no more than that the principles of parity should be cautiously applied in a Crown appeal?

MR GAME:   I am just about to come to that.  In paragraph 115 his Honour is saying that he is taking support from the refusal of special leave by this Court in Kumar and Feagaiga, then he comes to a decision called Bulfin, but there is another line of authority in Victoria, which Ms Bashir refers to in her submissions, and a recent decision called Karazisis, also delivered on 17 December 2010, which is directly in line with the decision of Justice Allsop and Justice McCallum and also Justice Heydon before.

Our researches show, incidentally, your Honour, that Davidson in Queensland 1999, Karazisis in Victoria in 2010, Marchese in Western Australia 2006 and Dowie in Tasmania 1989 are all in line with McIvor.  So that is a significant matter in terms of, shall we say, uniformity of decision and it is quite contrary to the submission put by our opponents at page 131 – there is no need to go to it - that other States support the position taken by them. 

Then we see at paragraph 117 an acceptance of both the ignorance of the other decisions and the fact that the decisions of Justice Hulme were based on offender’s appeals.  Then we see at paragraph 118, and we see particularly there “having regard to the extent of support for competing views” and that, in our submission, is a reference to this Court’s refusal of special leave in Kumar and Feagaiga, amongst other things.  This Court is not bound by its earlier decisions.  Chief Justice Mason once described such an approach as a recipe for disaster, and that is what it is and really it is – and none of the criteria have been satisfied that - the binding line of authority is clearly wrong and should not be followed. 

Then there is a consideration of McIvor, and I mean no disrespect, but it is hardly a reasoned response to his Honour Justice Heydon’s decision in that case and it does not even grip with the issue about the fact that this is happening in a discretionary process on a Crown appeal.  The idea that there would be evidence to show that people are aggrieved is not a reason at all, and anybody that has stated a contact with offenders would know that that is all they talk about pretty much in respect of sentencing, is what the other offenders got.

CRENNAN J:   Well, “justifiable sense of grievance” is almost a term of art in this field of discourse.

MR GAME:   Yes, your Honour.  So, first of all, we say on this question of parity – I am sorry, your Honour, if you go to paragraph 126 one sees that there is a reversal of the question in deciding whether or not other cases are clearly wrong.  What his Honour says is, “What I have read in the other cases does not persuade me”.  It becomes a question of serendipity of who is sitting on the court if you approach these questions in this way.

FRENCH CJ:   His proposition, his central proposition, is there is no “blanket rule” that a Crown appeal cannot succeed if the result would be to “create disparity” with a sentence imposed on a co‑offender.  That is at the core of what he is saying, is it?

MR GAME:   It is no bar to the success of a Crown appeal is the way he states it at paragraph ‑ ‑ ‑

FRENCH CJ:   He uses the words “blanket rule” in both 126 and 130, I think.

MR GAME:   Yes, but your Honour, the question of principle does not get lost in the vagaries of, shall I say, qualified statements.  It is seen as not a bar in the sense that it is not a bar in this case.

CRENNAN J:   You are urging that what was said in dissent - application book 37 at paragraphs 8 and 9 – you are contending, are you not, that that is the correct approach, which is not cast in absolute terms?

MR GAME:   No, absolutely not, your Honour, but the point is that – and so it involves both issues about the conduct of the Crown on Crown appeals which brings in cases such as Malvaso and Everett, the stance taken by the Crown, both below and in not appealing the other case, but what it amounts to is we see in paragraph 142 – sorry, not 142 – that there is an acceptance in a paragraph that it will create a disparity, and that is at paragraph 133 – and I think it is at another point too.  So it is not a question of absolutes, and we did not put this in an absolute sense, but there is a clear question of principle involved in this case and it is directly raised and, in our submission, it cannot be ducked.

That is what I wanted to say about that aspect of the matter.  Now, in respect of the standard non‑parole period in Markarian, a case has been granted special leave called Muldrock, and I should say straight away that we – which challenges a decision of the Court of Criminal Appeal in Way.  Now, in this particular case – and you can see an actual passage about it at paragraphs 72 and 73 of the judgment, page 55 – we argued in response to these grounds, grounds 2 and 3, that the court had erred in almost every decision following after Way, except it had not erred in Way, that Way, as it were, construed the provisions correctly and that the, shall we say, the vice commences with the case of Knight & Buivanua.

Now, Knight is actually in a different line of authority than McEvoy and there is a difference in the court between those two lines of authority, and Justices Allsop and McCallum plumbed for Justice Simpson’s judgment in McEvoy.  But if one looks at what has happened in this case one sees – and what is said to be a failure to observe a basic rule of sentencing in paragraph 72 is said to be a failure to identify – we see at the top of page 56:

the extent to which he departed from the standard non‑parole period –

and the requirements of a finding as to where, meaning precisely where, in the scale of objective seriousness.  Now, this is of particular importance to Green because he was found to fall below the middle of the range and he pleaded and he had a strong subjective case.

The comments of Chief Justice Spigelman in Way, and if I could just take your Honours to Way briefly and just to two paragraphs - it is in our bundle - and the two paragraphs I wanted to refer you to are paragraph 131 and paragraphs 151 and 152.  Now, we say those paragraphs are correct.  We say that the section can be made to work, section 54B can be made to work in a constitutional frame where all relevant considerations are taken into account and no prima facie weight is given to any particular one.

I should say that this case was decided before this Court’s decision in Markarian but after the Court of Criminal Appeal’s decision in Markarian, and it actually specifically refers to that decision and makes it clear that it is following Justice McHugh’s judgment in AB which was effectively taken up in Markarian, although his Honour delivered a separate judgment.

Now, if we go back to the Court of Criminal Appeal and Justice Hulme at paragraphs 85 and 86 – but even so his Honour is taking as his starting point and in what must be a multi‑tiered process the degree to which we are to be brought below the standard non‑parole period; in fact, that is the driving force of the whole judgment.  Then at the top of page 60 we see a sentence which is the very thing his Honour said in Markarian and the very thing that was found to be wrongly decided in Markarian which is to take the top of the range of the offence below and say, well, you must be equal to that because of the number of plants in a case such as this where there were only – I say only, something like 1500 plants – and such a comparison is clearly inapposite and erroneous.  That combines the problem about the standard non‑parole period with the principles enunciated in Markarian.

CRENNAN J:   One view, I suppose, is his Honour was just looking at the standard non‑parole period as a guide in a sense in the context of looking at the applicant’s subjective circumstances.

MR GAME:   Well, he was not, your Honour, because of the language of that the cases applied, and then when you come to paragraphs 139 and following the starting point is the standard non‑parole period.  Not only is it the starting point, but his Honour then proceeds to sentence, as it were, bottom up, taking the non‑parole period then adding 25 per cent to that for a notional head sentence, which itself has the effect of increasing the sentence and itself is an error of principle.  Then an acceptance, as I said, at ‑ ‑ ‑

CRENNAN J:   Well, although there are references to starting point, it is not to be denied, nevertheless I think it could be said that his Honour is doing no more than weighing up all the factors that need to be weighed up.  In other words, he is not automatically applying.

MR GAME:   Your Honour, what he is doing – in fact, in my submission, the whole driving force behind his judgment is taking the standard non‑parole period as the starting point, requiring identification of precisely where we stood in respect of it, and then shall we say oscillating down, 10 to seven to six and a half, each calculated by reference to level of culpability, plea, other subjective circumstances, so there is no doubt, in my submission, that this judgment involves multi‑tiered sentencing.  Not only that, it involves multi‑tiered sentencing in a deliberate way, in an assertive way that any other view, any other way of reasoning about it is erroneous.

It is not an exercise of sentencing, giving full weight to discretionary factors which his Honour the Chief Justice found a way to make this section work so that it did not exclude from considerations or give undue weight to any particular consideration.  So, no, your Honour, we would not agree that his Honour has done anything else but adamantly, assertively and articulately put himself in a position where he has said this is to be done by reference to the standard non‑parole period. 

You start there and you move from there, downwards or upwards, the head sentence comes with that, you knock something off for the plea, you knock something off for the objective circumstances, and then you come up with a sentence, and that is all wrong, in my respectful submission.  Not only that, the District Court is being chastised for not doing this exercise and this point was argued in the Court of Criminal Appeal. 

So we say in this case there are two quite compelling reasons why the Court should grant special leave.  They are related.  In terms of a vehicle, in respect of the McIvor question, if there is ever going to be a case this is an appropriate case.  This case raises a question which seems to be a secondary argument in Muldrock and this case raises a question about the standard non‑parole period which was squarely put in the Court of Criminal Appeal and not addressed.  There is not a word about the argument that we put about the standard non‑parole period cases and their failure to comply with the decision in Way, not a single line on the subject, and we argued it.  So those, in our respectful submission, are the reasons why special leave should be granted.

CRENNAN J:   Are you going to say anything about ground 2.3, at application book 115?

MR GAME:   Sorry, 115?

CRENNAN J:   Yes.  This, I take it, is a reference to paragraph 115 on ‑ ‑ ‑

FRENCH CJ:   I think yours is at 91, is it?

MR GAME:   Yes, I did say something about that, your Honour.  What I said was that it is a – I dealt with that as I – in a sense passing – I did not mean to pass over it, but I dealt with that at the point at which his Honour said at paragraph 115, that the decision of this Court refusing special leave provided “substantial support for the Crown position”.  Now, the refusal of special leave in that case is of no relevance whatsoever to anything.

CRENNAN J:   Well, it seemed in the context of the whole of the judgment to be a rather en passant comment.

MR GAME:   Not at all, your Honour, because his Honour then said a little bit later – and I do not mean to be – sorry, that was far too forceful of me and I apologise – but his Honour said the “support for competing views” at paragraph 118, and then 126 – no, it is not 126 – it is mostly at 118 – the effect of it is, in my submission, that what his Honour is doing is bringing together all of the things that are said to support ‑ ‑ ‑

CRENNAN J:   The Crown position.

MR GAME:   ‑ ‑ ‑his position and that is one of them that is given some prominence, bearing in mind that Bulfin does not support the proposition he puts; even if it did it has been overtaken by other recent authority, and then all you are left with is his Honour’s own decisions in which his Honour has not considered the question, and this is pointed out forcefully and articulately by Justices Allsop and McCallum.  If the Court pleases.

FRENCH CJ:   Thank you.  Ms Bashir, I see your grounds of appeal are identical?

MS BASHIR:   Yes, your Honour, I adopt what Mr Game has said.  I would like to just make one small point in response to Justice Crennan’s questioning as to whether or not the standard non‑parole period was used as a starting point and if I could take your Honours to the judgment in Way at page 196, paragraphs 151 to 152?

FRENCH CJ:   Yes.

MS BASHIR:   Your Honours, it is our contention that at paragraphs 85 and 86 and 139 and 140 of Justice Hulme’s judgment he was applying precisely the process that was held to be incorrect in Way, and to that extent we say that there is a direct conflict between the Court of Criminal Appeal’s judgment in Way and the Court of Criminal Appeal’s judgment in this case as to what is and is not appropriate in resentencing and sentencing. 

It is raised in special leave question number 3 in terms of how you determine manifest inadequacy.  We have also raised it in our submission in

reply as extending to the very sentencing process and the process of resentencing on a Crown appeal.  At paragraph 155 in Way it was held that such a process is “too rigid”, it allows the standard non‑parole period to dominate the rest of the process, and it means that sight is lost of circumstances justifying the imposition of a less severe sentence.

In the case of Mr Quinn, it is apparent in paragraph 139 that his Honour starts with the standard non‑parole period of 10 years; he then takes off 20 per cent, as he has indicated back in paragraph 73 – that brings it down to eight years.  That is an error in itself because the 20 per cent should come off the head sentence.  We then get a further discount, it must be of two years, for our subjectives because we end up with a non‑parole period of six years, and that is set out in paragraph 143, and that is despite the fact that there is no opposition to the finding of special circumstances where there had been a proportion of 50 per cent – it has now gone up to a proportion of 66 and two‑thirds per cent.

Could I also just direct your attention to paragraph 134, which is at appeal book 79 because his Honour there uses as a basis for rejection of the Crown appeal and rejection of the ground on parity his use of the maximum penalty, and Mr Game took you to the passage which was directly in conflict and where his Honour applied the same error that he had applied in Markarian, so the maximum penalty, then the standard non‑parole period where we say his approach is in contrast to Way, and by the extent of inadequacy of the sentences which he has determined we say in the wrong method and by an incorrect application of principle.  That is in contrast with the manner that President Allsop and Justice McCallum took which is reflected in paragraphs 22 and 23 of their judgment.  So we say that this case is in direct conflict with Way and that that is a reason for a grant of special leave.

FRENCH CJ:   Yes, thank you, Ms Bashir.  Yes, Mr Temby.  Incidentally, Mr Temby, what was the resolution of the disparity between the sentences announced in paragraph 143 and those actually imposed?

MR TEMBY:   The matter went back before the Court of Criminal Appeal, reasons have not yet been given, but the result is that the sentences are as in paragraph 144, which are the orders that were taken out and not in 143.

FRENCH CJ:   There was some reference in the Court of Appeal also to the word “reserve”.  I do not know quite what the significance of that was.

MR TEMBY:   No, well, I cannot ‑ ‑ ‑

FRENCH CJ:   They said they would make no further orders in relation to it.

MR TEMBY:   That is right, and the orders are as extracted which are consistent with paragraph 144.

FRENCH CJ:   Yes, thank you.

MR TEMBY:   Your Honours, each of the appellants takes as a starting point in the written submissions that the respective sentences imposed “achieved parity”, is the phrase used, with a sentence imposed on a co‑offender, Taylor, but is that right?  The sentences were not equal, they were not for the same offence and they were not for the same level of involvement in the conduct for which the three men were to be sentenced.  Further, the sentencing judge did not avowedly, or if you like expressly, sentence either of the applicants by a process of relative comparison with Taylor.  In no sense did he take the Taylor sentence as a starting point, and nor should he have done so.

His Honour at first instance did recognise as one of the significant factors in sentencing a fairly large number of participants that of achieving some level of parity or at least comparability between the sentences handed down to various offenders – that is at appeal book 22 about point 40 – and he said something almost the same 10 pages earlier.  As your Honours know, there were in this case day labourers who were dealt with largely without being sent to prison, and then there were others who moved up the line.

CRENNAN J:   I think application book 48, paragraph 51, it is there explained that Quinn was the principal and it is stated that involved at a senior level were both Green and Taylor.

MR TEMBY:   That is right, and it is further stated, with respect, that Green was involved at a more senior level than was Taylor; that is right.  Now, all that was said and the process that was undertaken at first instance was completely unremarkable and consistent with principle, and so was, we submit, what happened at the Court of Criminal Appeal.  As your Honours know, the appellate court took a more serious view of Quinn’s conduct and that of Green than did the sentencing judge, and they were entitled to do so.  It is a mere question of degree that arose, and of course, all judges said that the sentences imposed on the present applicants were manifestly inadequate.

The question that the court below, immediately below, had to consider was whether having arrived at the conclusion that the sentences imposed were unduly low, they should nonetheless refrain from interfering with them as this was a Crown appeal.  They did not follow that course by majority, but the fact the appeal was close and might have gone the other way does not justify a grant of special leave.  We suggest there is no large principle of law in this case which demands consideration and perhaps restatement.

The decision of the court appealed from is consistent with these propositions, each of which is in turn consistent with received principle, firstly, that sentences imposed will not likely be interfered with, particularly as a result of Crown appeals; secondly, but such sentences will be increased or decreased as the case may be if manifestly wrong; thirdly, a consideration of the sentencing process at first instance and on appeal is what is commonly called parity, that is to say, maintaining a comparability between persons involved in the same criminal enterprise; fourthly, that circumstances, of course, alter cases and both the degree and manner of involvement and also the charge or charges laid and the maximum penalties available for them will be prime considerations.

Now, at the end of the day we submit there is something like appropriate relativity between the sentences imposed on each of Quinn, Green and Taylor, taking them in descending order of involvement.  As to Quinn, he was the principal in the entire enterprise, clearly deserved a heavier sentence than Green or Taylor, which was the result, and as to Green, he was at a management level or if you like a partner in the enterprise but more seriously involved than was Taylor.  The question of relative ages also arises as between them, Taylor having been 19 at the time the offences were committed and Green 24.

FRENCH CJ:   So you would say this is not a case about the application or non‑application of some constraining principle affecting Crown appeals, you say it is just a matter of a different view of the weight to be given to particular factors?

MR TEMBY:   Just so, your Honour.  With respect, there are two cases effectively which are urged upon the Court as demanding that this matter be granted special leave and be fully argued.  One is Markarian, which is a Court of Criminal Appeal decision, and the other is McIvor, again a decision of that court.  I am sorry, I am reminded by Ms Bashir, Markarian is a High Court case. 

Now, as to Markarian, no member of the Court of Criminal Appeal took either the maximum term or the statutory non‑parole period and reasoned down from it, which would be a mistaken approach because while that is a factor, maximum term and standard non‑parole period, it is one of a number of factors, all of which have to be taken into account; we agree with that.

CRENNAN J:   Well, I suppose there were the references to starting point, but they may be no more than references when you look at the way the actual exercise was undertaken.

MR TEMBY:   With respect, there are references, but it is quite apparent that a multiplicity of factors was taken into account, and it is not as if it was just some sort of mathematical process that was undertaken.

CRENNAN J:   Or automatic whilst ignoring subjective considerations.

MR TEMBY:   Yes, quite so, your Honour.  While noting, of course, that the statutory non‑parole period was here not fully applicable because of the pleas of guilty, which is to say it was a guidepost only, one can see that in the result in each case the full penalty imposed was well below the maximum, which is to say eight and five years respectively as against 20 years, and the non‑parole period was substantially below the standard on a plea of guilty, which is to say five years in Quinn’s case and three years in Green’s case as against 10 years.  It is also to be noted in relation to Markarian that the Court has granted special leave in a case called Muldrock which will raise at least substantially the sort of arguments which have been touched upon today.

Now, coming to McIvor, what did that case decide?  The ratio was that if two offenders involved in the same criminal enterprise are convicted of the same offences and given the same sentences, and if the objective circumstances of the crimes and the subjective circumstances of the offenders are at least much the same, then the sentence imposed on one will not be increased on a Crown appeal while that on the other remains undisturbed, even if both sentences are manifestly inadequate. 

We do not seek to question that statement of principle, your Honours, and it does not arise in this case because of the distinct differences which were reflected in different sentences which were imposed not just on appeal but indeed at first instance.  The submission is that there is insufficient in this case to justify a grant of special leave.  If it please the Court.

FRENCH CJ:   Thank you, Mr Temby.  Yes, Mr Game.

MR GAME:   If the Court pleases.  First of all, parity is not confined in the way that it was put by Mr Temby, and the court did not suggest that it was.  We see that at paragraph 134, an acceptance that it will create disparity, and at paragraph 100 in the judgment of Justice Hulme, an acceptance that parity applies, and particularly in the case of Mr Green.  He was on the same level of the management in this thing.  He had a better subjective case than Mr Taylor and the notions of parity, it is accepted - is accepted by the

whole of the court except for Justice McCallum, applied to this case.  So that response to our submissions, in our respectful submission, does not run.

Secondly, this case was decided on the basis that McIvor was wrongly decided and on the basis that Borkowski and Cvitan were wrongly decided, and by Justice McClellan on the basis that Borkowski did not stand for the proposition which Justice Howie in Borkowski explicitly stated, and is set out in the judgment of the majority.

The question of parity in this case feeds directly into the question of the standard non-parole period because of the way in which – that is, as it were elevated against the respondents in the context of it being said by Justice McClellan in particular that there is a different sentencing regime.  Actually, there is only a head sentence of 10 years more, five years more in respect of commercial – this case was commercial, so it is 20 years as opposed to 15. 

So in our respectful submission, the judgments are written directed to questions of principle in respect of parity.  Those questions truly arise.  In respect of the standard non-parole period, as I have said, we raised and ran and argued the question about the proper construction of section 54B.  That question also arises.  In respect of the sentences, and your Honour the Chief Justice’s first question to Mr Temby, on 11 March, we received correspondence from the court as to why the sentences should not be increased, having regard to the slip rule.  After some correspondence, we managed to get the matter back before the court and after ‑ ‑ ‑

FRENCH CJ:   There was correspondence with the Registrar.  I think I have seen an affidavit.

MR GAME:   Yes, and then there was full argument about the matter.  The court on 11 March dismissed the Crown’s application to revisit the sentences, but has reserved its reasons as to whether or not and how it comes about as whether that is a matter of discretion, or whether or not the slip rule can apply to that situation.  But it is of significance in this case that it would appear that Justice Hulme was actually thinking in terms of the sentences at paragraph 143, because the correspondence suggests he is asking why should the sentences not be fixed in terms of paragraph 143?  Once you see that, you can see that all of the cascading errors that we assert about the application of the standard non-parole period fall into place, because that is how he got there.  He got there through that process.  In terms of sentence, our original sentence, the non-parole period expires on 16 May this year and it has been extended by one year.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  Yes, Ms Bashir.

MS BASHIR:   Your Honours, Mr Crown said to the Court that the maximum penalties for the crime were appropriately applied as an appropriate reference point.  That was not the case in the case of Mr Quinn.  If I could take your Honours back to appeal book 59, paragraph 86, his Honour there refers to both the correct “maximum penalty of 20 years”, and the “standard non-parole period of 10 years”.  He works out from the standard non-parole period of 10 years in applying section 44 which, without special circumstances, means there is a 75 per cent non‑parole period, he works out from that –

a total sentence of 13 years and 4 months –

so that is directly referable to the standard non‑parole period, and then he refers to the maximum penalty for cultivating less than 1000 plants, and at the top of page 60, states –

At least in the case of Mr Quinn, his criminality was no less than a worst case of growing a commercial quantity for which a maximum period of imprisonment of 15 years is prescribed –

that is, the use of another maximum penalty for the lesser offence is precisely the error that this Court recognised in Markarian.  If I can then take you, if you keep those numbers in mind, and I then take you to paragraph 139, which is the starting point paragraph, we see them all again.  We see the 10 years which is the standard non-parole period, the 13 years and four months which is the bottom-up approach, which has been expressly disapproved in the Court of Criminal Appeal and does not recognise special circumstances, and we see the 15 years, which is the maximum penalty for a different offence.  They are the starting points for this sentence.  We say that the maximum penalty was not correctly applied, and in fact, exactly the same error as this Court recognised in Markarian has been visited on the applicant, Quinn.

FRENCH CJ:   Thank you.  We will adjourn very briefly to consider our position.

AT 1.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.25 PM:

FRENCH CJ:   In each of these applications, there will be a grant of special leave in relation to ground 2.1, that is the disparity ground.  We do not consider that the interests of justice warrant the grant of special leave in relation to any of the other grounds.  I think this would be about half a day to a day, Mr Game.

MR GAME:   Yes, your Honour.

FRENCH CJ:   Mr Temby?

MR TEMBY:   I would express no different view, your Honour.

FRENCH CJ:   Yes, all right.  Thank you.  We will adjourn now until 2.15.

AT 1.26 PM THE MATTERS WERE CONCLUDED