Griffiths v The Queen

[1989] HCATrans 167

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S42 of 1989

B e t w e e n -

RAYMOND ROLLAND GRIFFITHS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

Griffiths

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 AUGUST 1989 2 AT 11. 18 AM

Copyright in the High Court of Australia

C2T 14/1 /SH 1 9/8/89

MR M.L. SIDES, QC:  May it please the Court, I appear with

my learned friends, MR M.J. IERACE and MS V.M. BELL,

for the applicant. (instructed by W.J. Robinson,

Director, Legal Aid Commission of New South Wales).

MR R.O.BLANCH, QC:  May it please the Court, I appear with my

learned friend, MR P.G. BERMAN, for the Crown.

(instructed by S. O'Connor, Solicitor for Public

Prosecutions)

BRENNAN J:  Mr Sides.

MR SIDES:  Thank you, Your Honour. I handup the outline of the

applicant's written submissions, Your Honours.

BRENNAN J:	Yes, Mr Sides.
MR SIDES:	Your Honours, this application is for leave to appeal
from orders made on 23 March this year in the New
South Wales Court of Criminal Appeal in relation to
a Crown appeal against a sentence imposed by Judge Madgwick sitting in the district court on 19 September 1988. The appeal was allowed and the
sentences imposed by Judge Madgwick related to six
incidents there being one count of armed robbery with wounding; five counts of armed robbery plus
nine other related offences.

His Honour, having regard to the principle of

totality, set an overall head sentence of 12 years

which was fixed in relation to the armed robbery with
wounding and other sentences were imposed which were

made concurrent. His Honour fixed a non-parole period

of four-and-a-half years in relation to this sentence.

Two of the offences, the armed robbery with

wounding and one other armed robbery, were committed

after 1 January 1988 and hence fell within the terms

of 20A of the PROBATION AND PAROLE ACT which commenced

on 1 January and affected parole periods in relation

to serious offences.	Armed robbery and armed robbery
with wounding are made serious offences in schedule 5
of the PROBATION AND PAROLE ACT.	The effect of 20A

of the PROBATION AND PAROLE ACT is to require, in

relation to serious offences committed after

1 January 1988, that the non-parole period be fixed

by_ statute at three-quarters of the head sentence.

DEANE J: Remissions apply to that non-parole period as well as

the head sentence.

MR SIDES: They do, Your Honour, yes, subject, of course, to

the power in 21(a) to refuse them. Your Honours,

subsection 21 (3) of the Act provides that section 20A can

be departed from but only if the court determines the circumstances

justify that course.

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MR SIDES (continuing): His Honour, at the time of hearing the

evidence, reserved the matter to consider it overnight

and the next day pronounced the sentences that I

have indicated. It was not until then that
section 20A was drawn to his attention and His Honour
exercised the discretion given to him under

section 21(3) and left the non-parole period as he

had initially indicated. I should say to Your Honours

that, in the appeal book in His Honour's reasons, it

appears that he indicated, orally, a non-parole period
of six years; that is an error on the transcript,

Your Honours, and it is clear and it was agreed by

the Crown in the Court of Criminal Appeal that, in

fact, the non-parole period he set was four and a

half years which appeared from the back of the

committal for sentence document which, unfortunately,

is not included in the appeal book.

Your Honours, when the matter came on by way of

Crown appeal in the Court of Criminal Appeal, that

Court found that His Honour had fallen into error

in relation to the head sentence and they found
that the head sentence was manifestly inadequate
so far as it purported to reflect the totality of

criminality with which His Honour was dealing.

Their Honours indicated that they would set a

head sentence of 15 years. They ultimately proceeded

to do this by way of quashing the 12 year sentence

in relation to the armed robbery with wounding, and

substituting a sentence of 15 years.

All the other sentences were to remain the same. They also declined to exercise the power under

section 21(3) of the PROBATION AND PAROLE ACT so

that, automatically pursuant to the legislation, as

a result of this appeal, the non-parole period was

three-quarters of the head sentence, namely 11 years

and three months. This application, Your Honours,

therefore gives rise to an important question of law

relating to the interpretation of section 21(3) of

the PROBATION AND PAROLE ACT: that is, the

discretion that is given by that Act to sentencing

judges.

It is clearly, in our respectful submission,

an important provision. Section 20A, so far as

New South Wales is concerned, is a novel provision.

It provides for the fixing of a non-parole period, not by the judge, as had been the case in relation to all offences, but by the operation of a legislative

provision at least at a prima facie level. So,

clearly, in our submission - - -

DAWSON J: What is the question of law?

MR SIDES:  The question of law, Your Honours, is whether the

terms of the discretion in section 21(3) should

be limited in the fashion in which the Court of

Criminal Appeal sought to limit it. It would be our

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submission to Your Honours that they read into that

provision limiting words that the terms of the

provision do not justify. They found, Your Honours,

that to give meaning to the provisions it should be

interpreted to apply only to exceptional cases and

we would respectfully submit to Your Honours that the

terms of the legislation are clear; that if the

legislature had desired that the discretion only be

exercised in exceptional or special circumstances

such an intention could have been clearly expressed

by the use of such terms.

BRENNAN J:  Mr Sides, is not section 21(3) an exception to the general rule prescribed by section 20A?

:MR. SIDES: Yes, Your Honours.

BRENNAN J: Well, then, if it is an exception the case which

falls within it is relevantly an exceptional case,

is it not?

(Continued on page 5)

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MR SIDES: It is an exception in a sense, Your Honour. It

is an exception in a sense that the non-parole
period, if the exercise of the discretion is given,

is not the normal but the court said, Your Honours,

that it was to be applied in exceptional

circumstances; not that when it was applied it

was an exception to the norm but it was to be applied

in exceptional or special circumstances.

If I could take Your Honours then to that part of Their Honours' decision. It is at the

bottom of page 44:

The evident purpose of the amending

legislation was to establish a statutory norm

in relation to non-parole periods in respect
of serious offences, and to provide that such

norm could be departed from, but only in

exceptional cases. It is undesirable to

attempt to make an exhaustive list of the

cases that might be regarded as exceptional.

However, two things can be said. First, such

cases must be relevantly exceptional. In

other words their special features must relate

to matters otherwise proper to be taken into

account in fixing a non-parole period. Whilst

it would be unduly rigid to say that such

matters could not possibly include matters

that were also relevant to the head sentence,

they would be matters which have some special

significance in relation to the non-parole

period. Second, they must be of s~ch weight

as to justify departure from a statutory norm.

The sentencing judge must pay due regard to the intention of Parliament reflected in

s 20A.

But clearly we would submit, Your Honours, that

they are limiting the exercise of the discretion

to cases which exhibit exceptional features.

McHUGH J:  But is not your real point what appears at page 45

line 21? Is that not the highest you can put your

case?

MR SIDES: Line, sorry, Your Honour?

McHUGH J:  Line 21 on page 45:

in any event, following the legislative

amendment, the mere fact that an offender's

prospects for rehabilitation are "better than

average" would not justify a departure from

the period prescribed bys 20A. The features

of the case do not exhibit the special or

e~ceptional circumstances required to justify

an exercise -

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MR SIDES:  Your Honour, that would be a fall-back position

but if, in fact, the correct interpretation to
be given to the legislation is that which was given

in the court below, we would submit that somebody

who had above average prospects of rehabilitation

would fall into the exceptional category, sufficient

to give rise to the exercise of the discretion.

McHUGH J: That may be the case but you have to accept, do

you not, that a case has got to be exceptional

to depart from 20A?

MR SIDES:  No, Your Honour, not if one goes back to the terms

of the legislation. It does not have to exhibit,

in our respectful submission, exceptional or special

features.

McHUGH J: · I am using the term "exceptional" in a sense

is that it departs from the standard. Three-quarters
is the standard parole period which the legislature

seems to have specified. You have got to show

something to depart from that normal standard,

do you not?

MR SIDES:  Yes, Your Honour.

McHUGH J: And if you do then your case is exceptional by

the general standard.

MR SIDES: If it departs from it it is an exception to the

norm but we would respectfully submit that as it

has been interpreted by the court below they have

indicated, we would submit, by the way in which

they have approached it that it has to be a case

that has exceptional features which we would

respectfully submit is something other than something

which departs from the norm. ·

BRENNAN J: Perhaps you are reading more into it than

Their Honours have said?

MR SIDES: Perhaps that might be so, Your Honour.	Your Honours, if I might go perhaps to the heart	of the submission and perhaps importantly to the
reasoning process by which the court arrived at
their interpretation. If Your Honours go further
up page 44 to line 7, Their Honours say:

(Continued on page 7)

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MR SIDES (continuing):

In practice, there are factors, peculiar to individual offenders and out of the ordinary,

which have been regarded as making a case

special and as justifying a non-parole

period unusually disproportionate to the

head sentence.

Again, Your Honours, they are looking to something

that is special or exceptional. Something cannot

be within the normal flow, and in that sense be an

exception to the norm, but not be exceptional, in our

respectful submission. Except:imal, in our submission,

would connote a very high degree of departure from

the norm.

Your Honours, they are there talking about the

approach to setting of non-parole periods prior to introduction of 20A, and they reason that there are cases where the ordinary, or the normal non-parole

period which they refer to in the previous paragraph

as being something less than 75 per cent, is
departed from where there are special circumstances,

and they give examples of this in three instances,

and I think it is illustrative, Your Honours, to go to

the examples they give.

The first is REG V VACHALEC, which was an appeal

against a sentence from a man who had been given, I

think, by the trial judge three and a half years with

15 months non-parole.

BRENNAN J:  What are we looking at when we look at these cases,

Mr Sides?

MR SIDES:  I am sorry?

BRENNAN J: What are we looking for when we look at these

cases?

MR SIDES: Well, Your Honours, what I am attempting to	demonstrate is that the three cases that were referred	to by the Court as being illustrative of situations in
the existing non-parole scheme, where special
circumstances justified a departure from what was the
normal range of non-parole periods in relation to
head sentences. Now, we would - - -

McHUGH J: Their Honours specify what they mean though. Do they

not give it as an illustration, offenders health,
nature of the offence, or informant on other

prisoners?

MR SIDES:	Yes, but the point that I am making, Your Honours, is
that those factors do not give rise to situations where, in the past, there has been a departure from what was
regarded as the norm, or the normal disproportion between

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the head sentence and the non-parole period, because

those factors that they spoke about affected both the
head sentence and the non-parole period, and,

YoLr Honours, perhaps the best illustration of that is the decision in PEREZ-VARGAS, where there were

two appellants, one Peres-Vargas and one Stephens.

At first instance they had both received head sentences
of 12 years with eight years non-parole, and because
of their assistance to - or in the case of Perez-Vargas

because of his assistance to the authorities, the

Court of Criminal Appeal intervened and they reduced

his head sentence to ten year~ and his non-parole

period to six and a half, so that the disproportion
between the head sentence and the non-parole period

is preserved at roughly the same which it was

set by the initial sentencing judge. And the same

can be said for Stephens~ his sentence was upset on

appeal, for two reasons.

Firstly, because he had assisted the authorities

and the Court found to a greater extent than his

co-offender, Perez-Vargas, and secondly, because the

Court of Criminal Appeal found his criminality was

less than Perez-Vargas. In interfering with the

sentence, the Court of Criminal Appeal set a
head sentence of seven years and a non-parole period
of four and a half years. Now, again, Your Honours,
the disproportion between the head sentence and the

non-parole period is roughly the same as that which

had been set by the sentencing judge at first instance.

If one goes to BURCHALL's case, which is a case

of child sexual assault with some very strong

subjective features, the Crown appealed against a

sentence that had been imposed at first instance of

18 months, which the learned sentencing judge had

directed to be served by way of periodic detention.

The Court of Criminal Appeal intervened, but left

the sentence at 18 months.

(Continued on page 9)

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MR SIDES (continuing):  Now, Your Honours, that was the

highest non-probation period they could possibly
have set because there had to be a six months

differential between the head sentence and the non-probation period but, again, Your Honours,

it is two-thirds of the head sentence. There is

not a great disparity and certainly nothing like

a disparity substantially less than what was

applying in normal cases under the PROBATION AND

PAROLE ACT before it was amended by 20A. The

point in VACHALEC, Your Honours, the 3% years with

15 months which was not disturbed on appeal, the

Court did say, by reference to TODD's case, which

was a Queensland case, that health was a relevant

factor. They did not say, Your Honours, that health

was only a relevant factor to a non-parole period

and significantly the Queensland legislative scheme

is different; the court pronounces a sentence and

the legislature provides for an automatic non-parole

period to be 50 per cent. And, as I understand it,

the legislature also provides that the judge can

make a recoilll!lendation that the non-parole period

should be less than 50 per cent of the head sentence.

No such recoilllilendation was made in TODD's case.

Now, we would say, Your Honours, from all of

those illustrations, there cannot be extracted from
it which the Court of Criminal Appeal sought to
extract from them in their reasoning process.

Particularly, if one goes to page 45 where they talk

about the features that would give rise to the

exercise of the discretion as being "relevantly

exceptionar'and they go on to say:

In other words their special features must relate to matters otherwise proper to be

taken into account in fixing a non-parole

period. Whilst it would be unduly rigid

to say that such matters could not possibly

include matters that were also relevant

to the head sentence, they would be

matters which have some special significance

in relation to the non-parole period.

Well, Your Honours, as the three cases to which they

refer on the previous page demonstrates, there are

no such features, in our respectful submission, and

there is, in our submission, a logical reason for
that because Their Honours themselves cited the

decision of this Court in REG V POWER and the

relevant passage that I would refer Your Honours to

is at page 43 of the appeal book and it is this,

that non-parole periods are provided:

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for the mitigation of the punishment of

the prisoner in favour of his

rehabilitation through conditional freedom,

when appropriate, once the prisoner (has)

served the minimum time that a judge

determines justice requires that he must

serve having regard to all the

circumstances of his offence.

But, clearly, as Your Honours would know, POWER

lays down the appropriate approach so far as New

South Wales is concerned that sentencing judges

should take to the setting of a non-parole period

and, in so doing, they should take into account all

of the circumstances which, of course, Your Honours,

in our respectful submission, are the same

circumstances he takes into account in setting the

head sentence. In setting the head sentence,

different factors might be given different weight

than they might be in setting the non-parole

period but, none the less, they are all relevant in

our respectful submission. It is hard, if not

impossible, to imagine a situation where there are

factors that are not relevant to both the head

sentence and the non-parole period.

BRENNAN J:  I suppose you say that if POWER's case says that

the purpose of the non-parole period is to favour

rehabilitation, ,and- the Court now says that the

prospects of rehabilitation being better than

average do not justify departure from the periods
prescribed by section 20A, the effect of 20A
unwittingly must have been to have repealed the

principles applicable under POWER's case.

MR SIDES:  Yes, Your Honours. It must be the case because,

Your Honours, in POWER's case the non-parole period is fixed by the sentencing judge. This legislation does not affect the process of setting the head -

McHUGH J:  The Court of Criminal Appeal seems to think it

did, Mr Sides. If you look at page 44,

Their Honours took the view there was punitive

legislation. At line 5, they say:

The amending legislation was plainly

intended to have a punitive effect.

What is your submission about that?

MR SIDES:  Well, Your Honours, I think, as I recall it,

POWER says too, in setting a non-parole period -that

punishment is a factor to be taken into account in

setting the non-parole period.

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MR SIDES (continuing):. But, Your Honour, what, with our

respectful submission, the Court of Criminal

Appeal has really overlooked in this case - if

one goes back to page 42 - they say:

A possible, but unacceptable, view of the provisions is that they achieve practically

nothing. One could read subs 21(3) literally

as meaning that the only restriction on a

judge's power to specify a shorter period

than that required bys 20A is that he

determines that circumstances justify a
shorter period and, noting that judges
only ever fix a non-parole period which they
regard as justified by the circumstances,

conclude that the amendments achieved nothing.

And they go on to say that they cannot apply such

an interpretation if that is the effect of it and

they refer to NOKES's case. But, Your Honours,
what they have overlooked, in our respectful

submission, is the fact that this legislation

clearly so far as serious offences are concerned

changes the approach to the setting of non-parole

periods in New South Wales. Whereas they were

set by the court according to the principles

espoused in POWER's case prior to 1 January 1988,

they are now fixed not by a judicial exercise of

a discretion but by the operation of legislation.

These amendments were not intended to affect the way in which the judges approached the setting

of a head sentence. That must be taken to be set

in accordance with established principles but what

it does is, having established the head sentence,

the non-parole period is then automatically set

by operation of 20A, not by the exercise of a

discretion of the sentencing judge. He has lost

that discretion entirel½ subject, of course, to

21(3).

Now, it would be our respectful submission to Your Honours that you can give effect to 21(3)

without reading it down in the fashion in which

we submit the court below has done. We would

submit to Your Honours that - but only - if I

can take Your Honours to the subsection and it

might be appropriate to read it in whole,

subsection (3) says:

Notwithstanding section 20A, a court or the

Board when specifying a non-parole period

with respect to a serious offence, may specify

a shorter period than required by section 20A,

but only if it determines that the circumstances

justify that course.

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Now, we would respectfully submit that the words

"that cour e" clearly indicate a course apart

from that ich is prescribed in 20A, which is

the norm or the prima facie non-parole period fixed by the operation of the statute and, if effect is given to the words "but only if", it

clearly means that the court does not depart from

20A simply because 1f it were setting a non-parole

period pursuant to the principles in POWER's case

it would have set some different non-parole period

than that prescribed by 20A, it - - -

DEANE J: Mr Sides, just to get it in p~rspective, what are the	mathematics of the application of full remissions
to a non-parole period of three-quarters? Does
it - - -

MR SIDES: It is the same as for all other sentences.

DEANE J: But what is the effect? It reduces the actual

non-parole period served to about a half.

McHUGH J:	Seven and a half, does it not?
MR SIDES:	No, a third, Your Honours.  The effect is a third.
McHUGH J:	Yes, a third, but it will reduce this to seven
and a half.
MR SIDES:	In this instant case, yes.
McHUGH J:	Yes.
DEANE J:	So, the three-quarters

which means, effectively, the norm non-parole period

is one half of the head sentence. Is that right?

MR SIDES: Well - yes, Your Honour, I - - -

DEANE J:  You start with one; you reduce it to three-quarters;

you take off a third if he gets full remissions
which reduces it to two quarters.

section takes as the norm is · a non-parole period., So, what the

if full remissions are obtained, of half the head

sentence.

(Continued on page 13)

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MR SIDES: Yes, that is assuming that a court is entitled to

have regard to remissions.

DEANE J: Well, a court may not be but the legislature - - -

MR SIDES: The legislature is, yes. But, of course, that must

be seen in the context, Your Honour, of other

offenders whose offences are not classified as

serious are also getting the third remission.

DEANE J:	I do not think much turns on it, I was just trying
to understand for myself the legislative policy
involved.

MR SIDES: Well, Your Honours, the legislative policy, we

would say, is clear from the terms of the legislation.

It picks out serious offences involving violence.

There are murders, armed robberies, serious drug

offences, kidnapping, serious sexual assaults, and
those sorts of things and it is clear that it was

intended, as the court below has said, to be

punitive. That is clear, we would submit, and that

is a matter that a court, in exercising its discretion

under section 21(3), would have regard to.

The fact that Parliament has seen fit to apply

a special category - or a special law - as to the

operation of non-parole periods in relation to

serious offences, in our respectful submission, is
clear and it would be clear to sentencing judges,

and that they could exercise their discretion. It

would not mean, in our respectful submission, as the

paragraph that I read to Your Honours on page 42 of

the appeal book fran the court below seems to suggest,
that it renders section 20A meaningless because

judges will continue to apply power and give

non-parole periods of less than that because they

think that is the appropriate non-parole period.

But, if they were to do that it would mean that

they were totally ignoring section 20A. The discretion

could not be exercised, it would be our respectful

submission, turning a blind eye to section 21A and
what was intended to be achieved by it.	It would not

be every case that came before a court that would

fall into it. If one were to take a couple of

examples: for instanc~ let us say an alcoholic person

who has come before the court on a serious offence

who has, prior to the time of his sentencing, made

some attempt to overcome his addiction to liquor and

the court feels that because of the nature of the

offence a severe penalty is called for but, none the

less, can see that this particular individual might

need a lengthy period of supervision by the

probation and parole service once he is released to ensure that his road to recovery takes an even keel

and it might require a period much longer than is

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provided by section 20A and we would submit that

that might well be a circumstance that would justify

departure from section 20A. But it would be that

a person who is an alcoholic could not be said to be

exceptional so far as-tl:l;persons coming before the
criminal courts are concerned.

Similarly, Your Honours, on the other hand: a young offender who was slightly mentally disabled,

the court, if he cormnitted a serious offence, would

no doubt say that it called for a severe punishment

to be expressed by way of a head sentence but might

see, because of the special circumstances that he is

in because of his age; because it is the first time

that he is in custody; there is no facilities for

such people in the custodial setting; that he requires

a very short non-parole period. Not because of the

need for him to be supervised by anyone in particular

on his release from custody, but just because of the

hardships that custody might have for a person such

as him.

Now, again, Your Honours, such an individual is

not exceptional when one is talking about the criminal

law and even those,unfortunately,cormnitting serious

offences. There are far too many such people coming

before the courts. The fact of the matter is,

Your Honours, we would submit, as the court below

has interpreted the legislation, those two individuals

would not fall within an exceptional class of case

that would give rise to the exercise of the discretion

as the exercise of the discretion, as in this case,

indicates.

(Continued on page 15)

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MR SIDES (continuing):  And whilst Their Honours below did

not actually decide in a positive way that they
disagreed with the observations of the learned
sentencing judge so far as this individual's

prospects of rehabilitation, but they go on to

say"the mere fact that an offender's prospects

for rehabilitation are'better than average'would

not justify a departure from the period prescribed

under section 20A"

BRENNAN J: That must be seen in its context, Mr Sides.

My brother Deane points out that on the previous page, page 44, there is a recognition at line 21:

the prospects of rehabilitation -

can be a relevant feature which brings the case

within 21(3). But what Their Honours are speaking

about at 45 is the situation where nothing more

can be said about the prospects of rehabilitation

than that they are better than average.

MR SIDES:  Your Honours, that emphasizes, in our respectful

submission, the interpretation that we are suggesting

the court has given, that if your prospects of

rehabilitation are average you do not fall within

the exercise of the discretion.	In other words,
you have got to do even better than that.	Your

prospects, it would seem, of rehabilitation have
to be excellent before you can fall within the

exercise of the discretion.

McHUGH J:  Not necessarily. I mean, an average is the mean

of a range. I mean, the range might be seven to

10 years. The average, to me, is 8½. The mere

fact that you might be better than 7, Their Honours

are saying, is not a reason for departin·g from

section 28.

MR SIDES:  Yes, Your Honour, but it also indicates, as I

said earlier, that they are really talking about

exceptional cases in the manner in which we contend

and we would submit there were some - although

the learned sentencing judge did not refer to them,

there were some compelling features in relation

to this offender that justified His Honour in coming

to the conclusion that his prospects of rehabilitation

were above average.

GAUDRON J:  The problem though you have even if you are

right in that, is it not, that the Court of Criminal

Appeal did not take the same view of the evidence?

MR SIDES:  No, Your Honour, but they did not see the

applicant who gave evidence before the learned

sentencing judge, as did his father.

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GAUDRON J:	But once the head sentence had been set aside, surely it was for the Court of Criminal Appeal
to make its own determination?
MR SIDES:	Yes, it was, Your Honour.
GAUDRON J:	And if there was no evidence there, if you can

call that evidence, then -

MR SIDES:	We would submit there was evidence, Your Honour.
GAUDRON J:	But that is a different consideration.

MR SIDES: Yes. But, I mean, this was a young man who,

having served a very short sentence, Your Honours,

was released from custody by mistake by those having

custody of him and surrendered himself later, which

was no doubt a fact that would be very persuasive

in a court in deciding that he had good prospects

of rehabilitation. And a man who, on his own evidence,

said that he gave up this very short period of

life of crime - I think it started on about

4 December and went through to the 8 January the

following year, the last offence being the shooting -

he gave it up after that because he was horrified

by what he had done. He was arrested, I think, about 10 days later when the police came to his

brother's place. He was not home but he arrived

home and he saw the police car. He could have

left the area and gone into hiding but he went

in and made a clean breast of it.

All these factors, in our respectful submission,

would justify a finding that he had above average

prospects of rehabilitation. And there was evidence

before the judge at first instance in relation

to his work record and evidence from his father

who was prepared to support him.

Your Honours, we would submit that all those

matters are evidence from which one can conclude

he had above average prospects of rehabilitaltion.

The other matter that we would submit to Your Honours

that would be of some concern is the manner in

which the Court of Criminal Appeal approached the

matter.

As I indicated to Your Honours at the outset,

there were the two offences that fell within 20A.

There was the armed robbery with wounding which

was the last of the series of offences and one,

I think, on 3 January which was an armed robbery.

So there were two offences. And the court said,

at page 38, in relation to the armed robbery with

wounding that it carried a maximum penalty of life

imprisonment.

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MR SIDES (continuing):  Right at the top of the page,

Your Honours, they say:

That crime alone, in the present case,

would have warranted a head sentence of

twelve years penal servitude.

And, on the following page, having reviewed the

facts, they say:

Taking all those facts into account we are nevertheless of the view that the seriousness both of the main offence -

to which I would submit they refer the armed

robbery with wounding -

and of the totality of the offences is

such that the head sentence imposed was

manifestly inadequate and that this Court

should fix a head sentence of fifteen

years penal servitude.

GUADRON J:	You do not complain about that?
MR SIDES:	Well, no, Your Honours, they were entitled to do

that but what one must bear in mind, Your Honours,

is that the learned sentencing judge had set the

12-year period and so doing, if one looks at page 39

of the appeal book, says:

I make it clear that I have been concerned

to punish the whole of the criminality

rather than with over much nicety to

specify particular sentences for particular

crimes.

Now, Your Honours, it is clear that he, applying

the principle of totality, set the penalty of 12

years, which he attached to the armed robbery with

wounding, fixed sentences to the other offences and

made them concurrent. And, it would be our

submission that the Court of Criminal Appeal did

the same. They had looked at the overall

criminality at page 39 and concluded that

His Honour had fallen into error - - -

GAUDRON J:  Well, although you do not complain, I have

some difficulty in seeing if 12 years is appropriate

to the armed robbery, why it then becomes 15 years?

MR SIDES:	Well, Your Honour, that may be so -
GAUDRON J:	That is not to say

that I would have the same difficulty if there

were aggregate head sentences or cumulative head

sentences.

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MR SIDES:  Yes, there is not, Your Honours, and having

indicated there that they were talking about the

totality of criminality for all the offences

would be reflected by a 15-year sentence, they

gave effect to that by saying at page 39 that a

sentence of 12 years would be quashed and in its

place would be a 15-year sentence and the

balance - - -

GAUDRON J:  And that very much affects the non-parole

period.

MR SIDES:	It does, Your Honours, because only two of them were qffected by 20A.
GAUDRON J:	But, then, I do not see how you can make that

argument if you make no complaint of error in what

was done as to the head sentence, is my problem

with that.

MR SIDES:  Your Honour, I do not complain that the Court

was entitled to come to the view that His Honour's

assessment of totality of criminality was wrong

and that Their Honours assessed it at 15 years; I
cannot complain about that but my complaint is how

they gave effect to it.

GAUDRON J:	Is there a grot.md of appeal in your draft notice of appeal that deals with that?
MR SIDES:	Your Honour, there is not a direct ground.
GAUDRON J:	I suppose you would say you are not bound by them?
MR SIDES:	We would submit, Your Honours, that this was

adequately covered by paragraph 2(b) and (c) of the

affidavit in support of the application which is at

page 51 of the appeal book. Your Honours, the

amending legislation makes clear in its terms that

the three-quarters non-parole period is to apply

only to offences occurring after the date of

commencement in subsection (4).

DEANE J:  But, have you not got a bit of a problem here and

that is even if you get this argument going, the

plain fact remains that the two most serious

offences here - not just the one but the two most

serious offences	were the two post 1 January
offences?

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MR SIDES:  No, Your Honour, because the one on the - - -

DEANE J: These are the two where he had a weapon.

MR SIDES: Well, they were all armed robberies, Your Honour.

DEANE J:  The earlier ones were toy pistols, were they not?

The last -

BRENNAN J: It was a sawn-off 22 - the last two offences.

MR SIDES: Yes, Your Honour.

DEANE J: Which means views might differ but - - -

MR SIDES:	Yes.
DEANE J:	- - - I would have thought that what would justify, on the totality principle, a sentence of 15 years would be
found essentially in the last two offences, both of
which were after 1 January.

MR SIDES. Yes, Your Honours, that is possible, but none the less

it is certainly not clear, we would submit.

BRENNAN J:  If the head sentence for the last offence was

reduced from the 15, which the Court of Criminal Appeal

imposed, to 12, and to give e.i;iect overall to the

Court of Criminal Appeal's view that 15 was the appropriate sentence for criminality, what one would

have to do would be to impose a sentence in respect of

the second-last offence, making it	cumulative
upon 12 years to bring it up to 15 -

MR SIDES	Yes, that would a possible approach, Your Honours.
BRENNAN J:	- - - and, if that were done then it would have

the same effect, so far as non-parole is concerned,

as the prison sentence had.

MR SIDES: Yes, Your Honour.

BRENNAN J: Well then, there is only one real problem, is there

not, and that is, whether or not the Court is entitled

to increase the overall sentence from 12 to 15, and

that is a point, as I understand it, which you concede

MR SIDES: Yes, Your Honour, that is so, but the other matter,

Your Honour, that I would submit is this, that we are

left with an overall sentence that is said to reflect

the criminality of the applicant in relation to

offences that are not covered by the legislation.

Now, it may be, Your Honours, that in relation to

situations such as this, where there are offences that

fall under 20A and some that uc not, that there may

have to be a different approach, or a more particular

approach to sentences in relation to the totality

C2T23/l/FK	19	9/8/89
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principle. Careful consideration might have to

be given because, although, in a mathematical sense

the 15 years could be achieved in the way Your

Honour has indicated, none the less, it was an

overall sentence that was designed to cover

criminality that was not caught by the legislation.

DEANE J: This is really an argument that the fact that you have

a series of offences to which totality applies

astriding the relevant date is, itself,

sufficient to make the case special or

exceptional.

MR .SIDES: Well, Your Honour, that would be so, I suppose.

DEANE J:	Was that point put to the Court of Criminal Appeal?
MR SIDES:	No, Your Honour, because we a~i:-eared - we were for the
respondent in the court below.
DEANE J:	But, you were resisting the application of the

sentence?

MR SIDES:	We were resisting the application to increase the
head sentence and the Crown was contending that the
discretion not apply, and we were resisting that.
DEANE J:	Well, it was an argument which could have been put.

MR SIDES: Yes, Your Honours, it was an argument which, as I recall,

was not ventilated in the terms that I am seeking to

ventilate it here, in the court below, and, as I recall

it, by neither myself or by Mr Howie, who appeared

for the Crown, the actual difficulties created that I

am ventilating before Your Honours now were not

drawn specifically to the attention of the Court of

Criminal Appeal, and I suspect, for the same reason

that Their Honours fell into the trap, as it were, that they were dealing with an overall sentence of

12 years, which His Honour the learned sentencing judge

had set to cover the totality of criminality.

McHUGH J:	The bottom line is that the three-quarter period
in the present case can only be justified if the two offences on 3 January, and the four offences, including
wounding, on 8 January, justified 15 years.

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MR SIDES: Yes, Your Honour, but not all the offences on

8 January were serious. It was only the armed

robbery with wounding.

McHUGH J:  Yes.

MR SIDES: But, even so, Your Honour, even assuming that those

groups of offences alone justified a head sentence
of 15 years, none the less the non-parole period

was designed to cover other criminality as well.

Now, it may be, Your Honours, that in effect, in a

situation such as this may well be a circumstance

that justifies a departure - if one looks purely

at total figures - from the statutory norm because

one can imagine with large numbers of offences

committed over an extended period of time there

is a great difficulty in a sentencing judge having

to sit down and try and, in a sense, unrealistically set figures for each without infringing the totality

principle but, rather, attempt to reflect the

criminality with an overall global head sentence

and exercise his discretion if he thought it

appropriate to give effect to the fact that some

of the criminality to be covered did not fall

under 20A by giving a non-parole period that was

somewhat less than 75 per cent. It would certainly

as a matter of practice be a much easier task for
the sentencing judge to approach it in that way
than trying to put each in a category without,
then, offending the totality rule so far as the

head sentence is concerned.

GAUDRON J:  Mr Sides, I still have difficulty in this. How

can you put this argument, really, without asking

that the head sentence be set aside?

MR SIDES:	Your Honour, the head sentence, as framed, of
15 years for the armed robbery with wounding would
have to be set aside, yes. That is so, Your Honour.

GAUDRON J:  Yes. You do specifically ask that?

MR SIDES:  Yes, Your Honour. I am sorry if I did not make

it clearer on the second occasion I answered
Your Honour's question earlier.

There is nothing more, I think, that I can put to Your Honours that would be of assistance,

if Your Honours please.

BRENNAN J:  Thank you, Mr Sides. Mr Blanch.

MR BLANCH:  May it please the Court, I hand up an outline

of the Crown's submissions.

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BRENNAN J:	Yes, Mr Bl~nch.
MR BLANCH:	Yes, may it please the Court. Speaking rather

to the matters that have arisen during the course
of my friend's submissions, it is our submission
that the case would only really raise a point of

law of importance for this Court to grant leave

if there were some point to be made arising from

the interpretation of the legislation and the

finding by the Court of Criminal Appeal that there

had to be some relevant exceptional circumstance

in order to depart from the statutory norm and,
in our submission, for the reasons in our outline
and for the reasons that have been put during the

course of argument, that is not so and it is

perfectly clear that in order to give the statute

meaning there has to be some relevant exception

shown and whether that is described as an exception

from the norm which my friend appears to accept

or whether it is described as an exceptional case,
in our submission, would be merely a matter of

semantics because if the case itself is one that can

be said to be an exception from the norm, then

it is appropriate to describe it as an exceptional

case.

The other point that arose during the course

of argument was the interpretation of POWER's case

but, of course, POWER was about the fact that the

fixing of a non-parole period was appropriate

to reflect the punitive aspect of sentencing and to fix a minimum period that the offender was to

serve in custody. Once again, this point arose

during the course of discussion with my friend

that the purpose of the legislation clearly is

to a punitive purpose and the Court of Criminal

Appeal in dealing with that - I am sorry I am

only reading out a passage that was in fact

referred to during the course of argument where

the Court of Criminal Appeal in fact acknowledged

the fact that the purpose of the legislation was

punitive and, once again, as has arisen during

argument, the relevant circumstance that came up

was the question of prospects of rehabilitation

and all the Court of Criminal Appeal was saying

was the mere fact that he was above an average

was not, in itself, a circumstance that that had

to be asessed.

(Continued on page 23)

C2T24/2/SH	22	9/8/89
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MR BLANCH·(continuing):  The Court of Criminal Appeal did

in fact assess it and, having assessed it,

concluded that it was not such as to - - -

GAUDR0N J: Is that right, Mr Blanch? I would have read

it otherwise, not that it was a factor which did

not have to be assessed, it was a factor which

could not be taken into the calculus.

MR BLANCH:  I am sorry, is Your Honour saying that the Court

of Criminal Appeal said that?

GAUDR0N J: That is as I read it.

MR BLANCH:  I would submit, Your Honour, that that is not

so. In fact, the Court of Criminal Appeal specifically

said, at page 44 in line 20 and at lines that

have been referred to:

There may be cases where particular and

unusual fealtures or the prospects of

rehabilitation of the offender would justify

a non-parole period that would - - -

GAUDR0N J:  Yes, but those features - would you then go to

be - if you then read it as against 4~ those features

must require that, I would read it, as the prospects

being better than average. If one takes the average
at 50 per cent, for example, the facts that your

prospects were 55 per cent, as I read page 45,

would not be taken into the calculus. If they exceeded

80 per cent then they may well be a special or unusual

feature to be taken into account according to what

was said on 44.

MR BLANCH:  I appreciate what Your Honour is saying but what

was said was that the mere fact that they were

better than average would not, by itself, justify

a departure but the court most certainly looked

at the - - -

GAUDR0N J:  But it does not say "would not by itself", it

says, "would not justify a departure".

MR BLANCH: It says, "the mere fact".

GAUDR0N J:	I am sorry, yes.
MR BLANCH:	And it is clear that the court was there saying,

on that page:

As was indicated above we are considerably

less impressed than was his Honour by what

he described as the "prospects for

rehabilitation" -

C2T25/1 /ND	23	9/8/89
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and the prospects for rehabilitation described

by His Honour were simply above average. When

that is all put together it simply indicates, in

our submission, that the Court of Criminal Appeal

looked at that. The Court of Criminal Appeal

recognizes that the prospects can justify - - -

GAUDRON J:  But made a decision in a context where - well,

almost by way of an aside in a context where it

decided or had decided that the relevant principle

was that the mere fact that they were better than

average would not be taken into the calculus and

they would - - -

MR BLANCH:  But the court did not bother to make the aside.

GAUDRON J: Sorry, and then went on to make an aside that they were not as impressed but there is nothing

which makes their lack of impression or the reasons

for their lack of being impressed explicit. It is as though they are saying, "Well, we haven't

had to look at it but at a prima facie glance we're
not impressed." It is as though the exercise would

have been different if the principle had been

differently stated.

MR BLANCH:  Your Honour, I think the answer to that is, in

our submission, that they did in fact advert to

it. They introduced that passage on page 45 by

saying:

As was indicated above we are considerably

less impressed than was his Honour -

They have obviously given thought to his problem.
They have acknowledge the fact that prospects for

rehabilitation can be a relevant exception. All

His Honour indicated in his reasons - the sentencing

judge indicated was that it was above average and

did not put it any more than that. They have

said they were not as impressed by that and they

were placed in the position where having imposed	a head sentence they did then have to look themselves
at fixing a non-parole period and whether to exercise
that discretion.

(Continued on page 25)

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MR BLANCH (continuing): It certainly cannot be said, in our

submission, that they have just ignored that

altogether. They have adverted to it and taken it

into account and, having done so, they have imposed

a sentence and a non-parole period which is entirely

within their discretion. It certainly cannot be

said that they have not given the appropriate

attention to the case or that they have failed in

their duty as a court of appeal.

DAWSON J: Their Honours did give some explanation of what

they had in mind, at page 39.

MR BLANCH: Yes, I was looking for that, Your Honour, because

they say, when they say that, "as we have indicated

before" and they did, in fact. The aspect of the

prospects for rehabilitation was somewhat vague in

the case. Well, the fact of the matter is, in our

submission, that the Court of Criminal Appeal was

well aware of the problem and adverted to it and

reached its conclusion on that basis. If it could

be shown that the court had not given any thought

to it at all, or had not exercised its discretion

or sought to exercise its discretion - - -

GAUDRON J: Well, as I read it, they did not, I am afraid. It

seems to me that if it had been decided that the

fact that the better than average prospects of

rehabilitation was relevant to the exercise of

discretion, then there would have been a necessity

to determine for itself whether or not there was

better than average prospects. But it. has been

decided that, as I read page 45, that was not relevant

to the exercise of the discretion; that something

in addition to that, in relation to rehabiliation,

was necessary befor& thediscretion could be invoked.

MR BLANCH: Well, it is our submission, that is reading too

much into what was said at page 45, Your Honour, and,

in our submission, it would need to go so far as to

say that there was no relevant exercise of discretion

at all in order to demonstrate an error in that way

and, in our submission, that does not appear from

what the Court of Criminal Appeal has done.

GAUDRON J: Yes, thank you.

MR BLANCH:	The only other matter that was raised was the question of the sentence itself - the question of the
head sentence - well, our submission simply is that
the relevant sentences to be evaluated were the two sentences to which the legislation did apply because the most serious offence was certainly the offence of robbery with wounding which the court indicated
was an offence that warranted a head sentence of 12 years. In our submission, there is no error at

C2T26/l/DR	25	9/8/89
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all in the court coming to the conclusion that a

sentence of 15 years, taking into account the

totality even of the sentences for the offences after

the legislation came into effect, was an appropriate

head sentence. Those are the submissions.

BRENNAN J:  Thank you, Mr Blanch. Mr Sides.

MR SIDES: Yes, I have nothing in reply, Your Honour.

BRENNAN J: The Court will adjourn for a short time to consider

what course it should now take.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.42 PM:

BRENNAN J: In the matter, the Court proposes to reserve its

decision and, accordingly, the Court will now

adjourn until 10.15 am tomorrow morning.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE

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