Harris v The Queen

[1990] HCATrans 230

_..

-!J 1,AUSTRALIA,,~ -..,.).~ »~-««-<-'-....

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M9 of 1989

B e t w e e n -

WILLIAM STEPHEN HARRIS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Harris 1 5/10/90

AT CANBERRA ON FRIDAY, 5 OCTOBER 1990, AT 12.01 PM

Copyright in the High Court of Australia

MR W.B. WOINARSKI, OC:  May it please Your Honours, I appear

with my learned friend, MR J.R. CHAMPION, on behalf
of the applicant. (instructed by O'Connor

Sullivan Pty)

MR M.S. WEINBERG, QC: If the Court pleases, I appear

together with my learned friend, MR P. COGHLAN, on
behalf of the respondent. (instructed by the

Director of Public Prosecutions)

MASON CJ: Yes, Mr Woinarski.

MR WOINARSKI: Perhaps if I may hand up five copies of our

outline.

MASON CJ:  Your outline of submission overstates it, does it

not? As I understand what the sentencing judge did

and the Court of Criminal Appeal affirmed, was to

take into account that the applicant betrayed a

position of trust and that he sought to seduce

officers of the Customs and the Australian Federal

Police from doing their duty? That is what they

took into account.

MR WOINARSKI:  We would say, Your Honours, with respect,

that when one looks at the sentence imposed by the

sentencing judge, His Honour Mr Justice Ormiston,

in fact what happened was that because he was a

policeman he got a greater sentence than otherwise

would have been imposed upon him. The Court of

Criminal Appeal dealt with the matter very briefly

and really, in effect, said what Your Honour has

just in summary said.

But it does appear if one looks at - I was not

going to take the Court through the whole of the
plea, but if one looks at the plea there is a large
amount of time spent dealing with the question of

the applicant having been a policeman at the time

of the commission of the offence. That really

seems, with respect, to Your Honour the

Chief Justice to be the very nub of the sentence

that was imposed upon the applicant.

MASON CJ: But it is the material factor, is it not?

MR WOINARSKI: Well, Your Honour, we would seek to say that

it may be in some circumstances but not in this

particular instance.

MASON CJ:  Why?

MR WOINARSKI: Well, Your Honour, that can perhaps be dealt

with this way. There are some offences where it

could be said that the fact that the offender is a

policeman really happens to be simply his

occupation and we would say it has no other

Harris 2 5/10/90

relevance in the commission of the offence.	We
would say this is an instant case of that.	To take

an example well removed, a police officer off duty

driving along a road exceeding the speed limit, the

fact that he is a policeman, we would say, has

really no relevance at all. It just happens to be

his occupation. There is the extreme case which we would say is the third category, and I will come to

the middle one in a moment, where you have a

policeman who uses the fact that he is a policeman

to commit an offence and we could, perhaps, give

the Court two extreme examples in that regard:	a
police officer who goes to a bank in his uniform
and under the pretext of checking the bank's
security systems disarms them; makes sure that
none of the tellers are armed with weapons or in
any way can protect themselves and then uses his

service revolver to set about robbing the bank; or

the other extreme example, for example, police in

apprehending a violent fugitive use it for the

purposes of an execution-style killing. Now, in

those circumstances, it is quite clear the fact
that the offender is a police officer facilities

the very commission of the crime which the court

has to consider.

We say there is a third category which is,

perhaps, best demonstrated by the South Australian decision in Creed where the police officer, in the

course of his employment as a police officer,

learns certain things. In Creed he learnt the

address of one of the particular ladies that he, in

fact, raped and then in his private capacity using

the knowledge he has learnt as a police officer

goes off and commits the offence.	Now, we say that
that is the middle category.

Now, we say, it was our submission, that in

this particular case what you have here is simply

the fact that the offender, the applicant, was a

police officer per se and he does not fit into

either the second or third category, he fits into

the first category.

McHUGH J: Well, how does that fit in with what the trial

judge said at 192 , about line 6:

I am satisfied that Melbourne had been chosen

as the port of entry ..... because ..... the

willingness of you, Mr Harris, to arrange for

certain Customs officers or policemen to turn

a blind eye to the consignment on its arrival

at Tullamarine -

and he goes on. Is he not using his position as a

policeman or was that not - - -

Harris 5/10/90

MR WOINARSKI: Well, Your Honour, with respect, the role

that was played by the applicant could have been

played by any person. It was simply any person who

had those contacts could have played the role that

the applicant played. There was no

significance - - -

MASON CJ:  Presumably he had them in his capacity as a

police officer. That is what the sentencing judge

said at page 203 at line 25:

It could only have been through your position

in the Police Force that you came to know of

others, either Customs officials or Federal

Police, I know not which, who were likewise

willing to break the very special trust

imposed upon them as law enforcers.

MR WOINARSKI:  Well, Your Honour, with respect, when one

just considers that statement of His Honour the

learned trial judge, with the greatest of respect

to him it cannot stand up to scrutiny because it is

quite clear that any ordinary member of the

community can come to know either Australian

Federal Police officers or Customs officers and do the very thing that the applicant was alleged to

have done. It matters not, in our submission, that
he was a police officer because the clear fact is

that it was not something for him to obtain those

contacts or obtain that knowledge that he had to be

a police officer.

DAWSON J: Is not there a consideration that those who we

look to to uphold the law when they break the law

are somehow in a more blameworthy position?

MR WOINARSKI:  Your Honour, that would seem to be the

attitude that has been adopted certainly by the

Court of Criminal Appeal in Victoria, that there is

a special position either of trust or that the

fact that you have taken the_ oath of a police

officer puts you in a special category and the oath

situation is to be seen in the court's decision in
Wright, (1968) VR.	That is what they say.

GAUDRON J: But that must be right, must it not,

particularly when as a police officer, being a
police officer you are involving yourself in a

criminal enterprise of this nature? I mean, it is

one thing to distinguish the policeman who off duty

is involved in a car accident and has perhaps a

higher concentration of alcohol in his blood than

he should have. It is quite another thing to

involve yourself in a criminal enterprise, the

participants of which are criminals?

Harris 4 5/10/90

MR WOINARSKI:  Your Honour, may we answer that by saying

this, and we do not say this in any stupidity. It is the duty of every citizen to uphold the law and it is not really appropriate, with the greatest of

respect to Your Honour, to adopt the argument you have and say that a police officer falls within a

special category. The simple fact is that it is

every citizen's duty to uphold the law and to say

simply because you are a policeman you are in a

special category, in our submission, begs the

question.

GAUDRON J: But do you not, with those people with whom you

are dealing, thereby bring the legal processes into

disrepute?

MR WOINARSKI:  To answer that we would simply say anybody

who does that, police officer or otherwise, does exactly the same thing. It seems to us that for

some reason which we cannot quite fathom,

everybody - and we see this with the members of the

Bench - and we do not say this with disrespect -

automatically seems to want to say that a police
officer does fall within a special category but

when one comes to look at the fact that it is every citizen's duty to uphold the law it really does beg

the question, in our respectful submission, to say

that a police officer is in a special category.

TOOHEY J: But you do not have to go that far, Mr Woinarski,

in the present case, do you, because of the very
nature of the criminal undertaking in which the

applicant uses his contacts in the police force and

in the customs to do what he did?

MR WOINARSKI:  Your Honour, the answer to that is perhaps

best demonstrated by this, that with the exception

of the applicant himself there was no body who
could give evidence of a positive nature that the

applicant in fact had the contacts he asserted he

had. He told people he had.those contacts but

there was no evidence at all - - -

McHUGH J: Except his own admission, from his own statements

about it, his own phone calls and things of that

nature.

MR WOINARSKI:	The point about it is, Your Honour, he - that is why we say, "with the exception of the applicant
himself".  He asserted that he had these contacts
but there was no evidence that the Crown could ever
produce that in fact substantiated it. There were
telephone intercepts on, I am sure, at some stage,
the applicant's phone but there was just no
evidence that he, in fact, had any such contact and
the applicant's behaviour was absolutely consistent

Harris 5 5/10/90

with his assertion of those contacts when, in fact,·

he did not have them.

Indeed, when one looks at what actually

happened with respect to this particular attempted

importation and the manner in which they went about

trying to get it out and the various phone calls

between the various parties one comes, we would

say, with the greatest respect, to a conclusion he

probably did not have any contacts. But it is

equally consistent both ways.

TOOHEY J:  Was that put to the Court of Criminal Appeal,

Mr Woinarski, that the applicant may simply have been boasting?

MR WOINARSKI:  Your Honour, there is a passage - I cannot

remember whether it is in the trial judge's

sentencing remarks or during the course of the plea

or in - - -

DAWSON J: It was read just a minute ago, "He may have said

in his blustering way that he had more contacts".

MR WOINARSKI:  Yes, that is the passage. I cannot quite

remember whether it was the trial judge or the

Court of Appeal. I think it was the trial judge.

MCHUGH J: It is 192 at line 20.

MR WOINARSKI:  Thank you, Your Honour, I just could not

quite remember the passage. Yes, 192. Yes, thank

you, Your Honour Mr Justice McHugh.

MR WOINARSKI:  Your Honours, can we very briefly just

outline some facts to you.

MASON CJ:  What is this designed to do because we are

familiar with the facts?

MR WOINARSKI: Yes, Your Honour, but when I say, "some

facts", I just wanted to very briefly point out how

we say one can demonstrate the fact that he was a

police officer was in fact used before turning to

the authorities and some more submissions about the

general matter, Your Honour.

MASON CJ: Yes, you want to refer to the sentencing judge's

remarks.

MR WOINARSKI:  What we wanted to refer to initially,

Your Honour, was this: that the applicant was

sentenced to a term of imprisonment of 14 years

with a minimum term of 12 years before being

eligible for parole and his role is set out at

page 245 and 246 of the appeal book in the summary

that was prepared by the Crown. I am sure the

Harris 6 5/10/90

Court is familiar with that and I will not take the

Court to that.

At the same time, Your Honours, as appears in

the appeal book at page 255, a co-accused who had pleaded guilty, by the name of Templer - and I am reading line 19, Your Honours:

was a principal organizer -

this is the judgment of the Court of Criminal

Appeal -

of the importation. He was a friend of Morris

and he recruited his friends Burns and Kelly

to assist.

He then sets out points in relation to those and

what happened was, as appears at page 252 at

lines 11 and on, Templer and Kelly pleaded guilty:

and asked for certain other offences, viz. one

of trafficking in amphetamines, one of

trafficking in cannabis resin and two of

handling stolen goods to be taken into

account.

And further down at line 21:

Both Templer and Kelly admitted prior

convictions. In due course Templer was

sentenced to be imprisoned for twelve years

with a minimum of nine years -

so that what one has is that an organizer with

prior convictions and having other matters taken

into account gets 12 years with a minimum of nine;
the applicant with no prior convictions and no
other matters being taken into account but

admittedly after a trial gets 14 with a minimum of

12. We do not use that as a parity argument. What

we say is that that does demonstrate the very real

increase that the applicant was given simply

because he was a policeman because it was not

suggested even by the Crown, although they put him

in a special category, that the applicant was one

of the organizers of the importation. As we say,

that does demonstrate just how much the effect of

his being a policeman was given both by the trial

judge and the Court of Criminal Appeal.

It is quite clear, in our submission, that

much was made of the fact that the applicant was

indeed a police officer. One can see that, for

example, during the plea, at page 89, where

His Honour, in the middle of the page, asked my learned junior, who appeared for the applicant:

Harris 7 5/10/90

And it is the added factor, is it not, of it

being done by a policeman, which is the

significant element for the purpose of

sentencing your client?

Again, during the course of the sentence there are

passages on page 195a, line 7:

Assuming there to be an element of

exaggeration in your description of your

contacts, nevertheless the whole scheme boldly

to take the consignment directly through a
major airport would not have ben conceived or

planned if you had not offered to break your

duty and persuade Customs or other police

officers to ignore their obligations. Not

only was such a course as reprehensible a

course as any police officer could ever embark

upon, but it was fraught with risk and

difficulty in its execution.

And again at pages 203, His Honour had this to say, at line 24:

It could only have been through your position

in the police force that you came to know·of

others, either Customs officials or Federal

Police, I know not which, who were likewise

willing to break the very special trust - The "very special trust" being the reference in

reality to his being a police officer and on page

204 line 5:

You ·are a disgrace to the Police Force which

you served so long and you deserve the utmost

condemnation.

And on page 205 at line 9, His Honour says:

I must, however, say that this offence called

your special position of trust than that	for condign punishment, greater because of
appropriate to the case of Mr Templer.

MASON CJ:  The passage on 195(a) is very significant, is it

not, because it suggests that the applicant only

achieved his position in this conspiracy by virtue
of an offer that he made to act, in his capacity as a police officer, to suborn others from their duty?

MR WOINARSKI: Well, Your Honour, that is the way that

His Honour the learned trial judge took it, but we,

as we have already stated to this Court, say that

when you analyse out the role that the applicant

played, it did not have to be played by a police

officer. It could have been played by any member

Harris 5/10/90

of the community who had those contacts. It just

so happened that the particular member of the

community who became involved in this particular

conspiracy was, in fact, a police officer.

McHUGH J: Yes, but as a matter of probability, it is the

fact that he was a policeman that would have given

him these contacts and it would have made it easier

for him to understand and know the personalities of

the corruptible officers involved.

MR WOINARSKI:  Your Honour, as I understand it and I am

subject to correction here, there are a number of

other players in the conspiracy, some of whom were

deceased at the time of the trial. One of the

persons with whom he stood t.rial was Jones and he

and she were long friends and she certainly would

have known he was a police officer. Templer, I

understand, came to know that he was a police

officer in the Victorian Police Force, but as far

as I am aware, none of the other players knew that

he was a policeman.

McHUGH J:  I think the trial judge expressly found there

somewhere or other that the other people did know.

MR WOINARSKI:  He was referred to as Captain and it may be

that Templer passed that on, but it seemed from a
large number of the telephone intercept tapes that

that was certainly kept very quiet amongst the

various other conspirators. Certainly he was

always referred to as Captain, not our man in the

police force or anything like that.

McHUGH J: Well uncle was another name he was called, was it

not?

MR WOINARSKI:	Yes, but he certainly was not referred to as our friendly police officer or anything along that
line, but it is difficult, Your Honour, without
having gone through all the evidence which, of
course, is not before the Court, to know exactly
how far that can be supported by the evidence, but
that is certainly my understanding from what I have been told by my learned junior, who was in the
trial.

Now, Your Honours, I was going to take the

Court to the brief passage where the Court of

Appeal Appeal dealt with the matter and that appears at page 291 of the appeal book line 10 and

it is dealt with very briefly:

It was submitted that the judge placed

undue emphasis on the fact that Harris was a

police officer. We do not agree. Few

offences can be more serious or more inimical

Harris 9 5/10/90

to the protection of the public and the

administration of justice than the corruption

of a policeman by one of their number. And

that is what Harris set out to do: he sought
to corrupt customs officers as well. His

Honour was entirely right in saying that he must receive condign punishment.

The reality is that the Full Court has

confirmed the attitude adopted by the trial judge

as to the importance of the applicant having been a

police officer when they came to consider his

sentence and they accordingly went on to dismiss
the appeal against sentence.

Now, Your Honours, what the Full Court did and what the learned trial judge did was really to

follow the Court of Criminal Appeal's earlier

precedents, and they are set out in the outline of

our submission, Reg v Wright (No 2) (1968) VR - - -

MASON CJ: But what is the point of going to these cases,

Mr Woinarski?

MR WOINARSKI: Well, Your Honours, if Your Honours have had

an opportunity to read them, we will not take the

Court to them.

MASON CJ: But what are they going to establish?

MR WOINARSKI:  Your Honour, what they establish is that our

Court of Appeal has said that when sentencing an offender an aggravating circumstance, and one which

results in him being sentenced to a heavier

imprisonment than otherwise would follow, is the

fact that at the time of the offence he was a

police officer.

MASON CJ:  But we are not really concerned to go to those

cases, are we? We have what the Court of Criminal

Appeal said in the instant case.

MR WOINARSKI:  Certainly, Your Honour. The reason why we

refer the Court to it is that those are the

authorities in Victoria which the court has

certainly followed. We say that those authorities

are wrong, and that is the real reason why we refer

the Court to them. We say that this Court should

overrule that principle that has been laid down in

those three cases.

MASON CJ:  But why do we need to consider those three cases

which no doubt partly depend on their own facts?

Why can we not deal with this case in the light of

what the Court of Criminal Appeal says about the

facts of this case?

Harris 10 5/10/90

MR WOINARSKI: Because, Your Honour, there is a question of

general principle here, and that is the part in the
sentencing process that the fact that the offender
is a police officer plays, and that is a question

of general importance. And it is not, with respect

to Your Honour, a matter that one simply can look

at the particular case. We say that there is a

question of real and general importance that

relates to the general administration of justice

throughout Australia. It is not only in Victoria.

It is a matter that is raised in virtually all

States at the present time.

MASON CJ: But in this case it appears that the view formed

by the sentencing judge and the view formed by the

Court of Criminal Appeal related to the particular

participation by the applicant in his capacity as a
police officer in this conspiracy, and what he did

or offered to do in furtherance of that conspiracy.

Why need we be concerned with what has been said in

other cases?

MR WOINARSKI:  Your Honour, we do not have to be concerned

with it, and we are content to continue without

worrying about them. But it is not, with the

greatest respect to Your Honour, quite as

Your Honour puts it.

Quite an amount of the plea was spent both by

counsel appearing on behalf of the applicant and

counsel appearing on behalf of the Crown making

detailed submissions to the trial judge as to the
part or the importance or what weight should be
given to the fact that the offender was a police

officer, and those authorities, amongst others, were referred to the learned trial judge. They

were certainly referred to the Court of Criminal

Appeal, and with respect to Your Honour - - -

MASON CJ: But on a special leave application we are not

concerned with what was put to the sentencing judge

unless there is some particular reason for us to be

concerned about it. Here we have what the

sentencing judge or what the Court of Criminal

Appeal said.

MR WOINARSKI:	Yes, Your Honour, but may we just reiterate this: it is quite clear from what the learned
sentencing judge said that this applicant was given
a greater sentence because he was a policeman, not
simply because of his role in the conspiracy, not simply because of his part that he played or what
he was to do in the conspiracy.  It is quite clear
that he was given more because he was a policeman
and for that reason alone.

Harris 11 5/10/90

McHUGH J: No, it is not because of that reason alone. It

was because through his position in the police

force he came to know others, either custom

officials or federal police, who were willing to

break the very special trust which was fundamental

to the whole scheme.

MR WOINARSKI:  Your Honour, even taking that as a fair

summation of the facts, the point still is that he

was a police officer and it is because he was a

police officer and he had those contacts that he gets more. I mean, His Honour the learned trial judge, as we pointed out in the course of the plea,

at page 95, could not have made it more clear - not

page 95 - - -

McHUGH J:	You read it to us before.·
MR WOINARSKI:	Yes, page 89:

it is an added factor, is it not, of it being

done by a policeman, which is the significant

element for the purpose of sentencing your

client?

Not simply that the applicant played a particular

role but it was an applicant - - -

McHUGH J: But that is a remark made during discussion with

counsel and it is what the trial judge says at

page 203 and page 192 - - -

MASON CJ: They are the two passages we have been to,

Mr Woinarski.

MR WOINARSKI:  Yo·ur Honours, we can only make our

submissions and we say it is quite clear from the

passage that are there and quite clear from what

the Court of Appeal itself said, at page 291, that

he was getting more because he was a police

officer.

It was submitted that the judge placed undue

emphasis on the fact that Harris was a police

officer. We do not agree.

TOOHEY J:  Yes, but you must read on.

MR WOINARSKI:  It is qualified, Your Honour. It is quite

clear that they are saying it is a very important

factor for sentencing that Harris was a police

officer and indeed we would submit that that is the

whole feeling one gets throughout the whole of the

trial judge's sentencing remarks when he deals with

Harris, the fact that he was a police officer.

That was the significant factor and indeed with

respect to what occurred to Templer, the only real

Harris 12 5/10/90

difference, the only explanation for the difference
is that he got that much more because he was a

police officer.

DAWSON J:  But what is wrong with that - I know we are

shifting to another ground - but after all when a

person who is a policeman is convicted of an

offence like this he brings great discredit on the

whole of the police force, a body in which the

community is entitled to think that it has

confidence; just as when a solicitor commits an

offence which is one of dishonesty, whether it is

in the course of his practice or not, it brings

discredit on the body of solicitors and you may

take that into account?

MR WOINARSKI:  Your Honour, it seems that the position of

the police officer has often been, by analogy,

related to that of a solicitor and we would say

that that is different. There are good reasons why

a solicitor and a police officer are in quite

different categories. A solicitor, to start,

initially is an officer of the court. He is in a

quite different position than a police officer is.

Normally a solicitor is chosen by the client. The

client needs some legal advice, he goes to the

solicitor and he goes to him in circumstances where

he knows that he can speak to him openly, freely,

and the client often will say things or give things

to the solicitor which he would not give to his

best friend and the extent of that respect and the

extent of that relationship between the solicitor

and the client is really acknowledged by the

doctrine of legal professional privilege.

DAWSON J:  Of course there are differences, but here you

could not but say that this man had not only

damaged his own reputation by doing what he did but

damaged the reputation of the police force.

MR WOINARSKI:  Your Honour, just as any man, when he

commits a crime, damages the reputation of his

employment, his category of employment.

DAWSON J:	I do not think that is necessarily so.
MR WOINARSKI:	Well, Your Honour, it must, we say, flow

equally - - -

DAWSON J:  I mean, if I am employed as a wharf labourer and

I am convicted of some crime, it does not make much

difference, but the police force is a body to whom

the community looks to uphold the law.

MR WOINARSKI: With the greatest respect to Your Honour

Justice Dawson, the fact that a wharf labourer

commits and crime, and Your Honour says it does not

Harris 13 5/10/90

really affect the standing of wharf labourers that

much, really does show the very fact that the

community has wharf labourers at a fairly low

respect, simply because they commit a lot of

crimes.

DAWSON J:  Well, I could have given the example of a

tractor driver, or anything, but they are not

people to whom one looks to uphold the law as one

does look to the police force and when one of that

body does the very opposite and commits a quite

serious criminal offence, then the reputation of

the body is damaged and the man is responsible for

that.

MR WOINARSKI:  Your Honour, that is true, but we say that

applies equally to any class or category of

employment, and it must.

McHUGH J: But surely it goes beyond that because the person

is put in a position of trust and he abuses that
trust - and that is what this officer did on these

position as a constable of police, a

findings, he abused his position by taking of his

advantage of a relationship he had formed with

detective.

MR WOINARSKI:  And it is of no difference, with the

greatest respect, Your Honour - I know we can talk

of differences, but with the greatest respect it is

no different from any other honourable member of

the community committing an offence. As we say,
there seems to be a pressure on police officers.

He is just an ordinary member of the community and

the whole community has a duty to uphold the law

and if any one of us breached the law then it is

the same effect that flows through, be it a police

officer, be it a member of this bench, be it a

solicitor, be it any occupation; it must flow

through.

Police officers really are regarded, we say,

certainly by the courts, as being in a category

which really does not exist. They have been put

there but it is a category which really does not

exist. They are quite different from solicitors;

they are quite different from a number of other
positions of trust with whom they have been equated
because most of those positions of trust it is the

very fact of the position which gives rise to the

offence at all times. I mean, a solicitor for

example - most of the offences where the breach of

trust and a solicitor arise, relate to the very

nature of the relationship between the solicitor

and client, defalcation of the trust account or

something like that. That is normally where one

Harris 14 5/10/90

sees the suggestion in a report that he has been in

serious breach of trust.

MASON CJ:  Now, Mr Woinarski, it is only a special leave

application - - -

MR WOINARSKI:  Yes it is, Your Honour.

MASON CJ: And we have been over this ground at some length.

MR WOINARSKI:  I follow that, Your Honour. We are doing

what we can to persuade the Court

MASON CJ: Yes, I realise that.

MR WOINARSKI:  And we are trying to answer the questions the

Court has raised with us.

MASON CJ: But there is a point at which repetition ceases

to achieve anything.

MR WOINARSKI:  Certainly, Your Honour. We do not propose,

or wish to do that. Now, there is another aspect

of this, Your Honours, and that is that we say that

to impose a more severe penalty on an offender, as

occurred here, is a contravention of the

proportionality principle of sentencing that this

Court has laid down in Veen v Reg (No 2) and which

it is again repeated in a number of cases

subsequently. And what we say, in this regard,

Your Honours, is that in Hoare - and if I may just

briefly cite something to the Court from Hoare

v Reg, (1989) 167 CLR 349 - the Court, in

approximately the middle of the page, had this to

say just below the reference to Maguire and Enos.

Secondly, a basic principle of sentencing law

is that a sentence of imprisonment imposed by a court should never exceed that which can be

justified as appropriate or proportionate to
the gravity of the crime considered in the

light of its objective circumstances.

Now, in Hoare's case the Court was considering

whether or not a sentencing court could take into

account remissions or time that would come off and

what the Court went on to say, reading on is:

It would represent a departure from that basic

principle if a judge, instead of imposing a

sentence within the limits of what represented
appropriate or proportionate punishment for
the crime, were to "impose a longer sentence
merely because the offender may possibly earn

remissions for good conduct".

Harris 15 5/10/90

We would paraphrase that slightly and say it would

represent a departure from that basic principle if

a judge instead of imposing a sentence within the

limits of what represented appropriate or

proportionate punishment for the crime were to
impose a longer sentence merely because the

offender was a policeman at the time of the

commission of the offence.

Now, Your Honours, it is submitted that the

mere fact that the applicant was a police officer

at the time of the commission of the offence was

not an objective circumstance.

McHUGH J:  But that was not what he got sentenced for. He

got sentenced, among other things, because he was

procuring others to ignore their sworn duties as
part of a plan carried on over several months to

bring a huge quantity of drugs into Australia

without detection. That is what he got sentenced

for.

MR WOINARSKI:  Your Honour, it is not a ground of appeal,

and we just say this with a word of caution, what

he should have been sentenced for was being

involved in a conspiracy to import a prohibited

import. It does seem to us, with the greatest

respect, that some of the matters which Your Honour

has put to us and which appear in the judgment,

really were not appropriate for the court or the

sentencing judge to take into account. We just say

that as a word of caution because, of course, we

are not able to raise any of those matters as they

are not any part of the application before the

Court.

This Court has never, as far as we are aware, attempted to set out what are the objective

circumstances of the offence, and indeed the Court

of Criminal Appeal in Victoria said that very thing

in a case of Dickinson which was before this Court

earlier this year in May. That, we say, is the

other area of special application of this case:

just what are objective circumstances so far as the

principle of proportionality is concerned? When

does something become part of objective

circumstances and when is it not part of objective
circumstances? Certainly there seems to be some

suggestion in South Australia - - -

McHUGH J:  But these matters are not raised in your draft

notice of appeal, are they?

MR WOINARSKI: Well, Your Honour, we would submit that they

are given that the two grounds of appeal concern
the first is the fact that the applicant was a

member of the Victorian Police Force at the time of

Harris 16 5/10/90

the commission of the offence is an aggravating

factor; and secondly, undue weight. It really

falls, we would submit, in the first ground.

Your Honours, I was going to refer very

briefly if we may to Moyse's case, (1988) 38 A Crim

R 169, and the passage we desire to refer the Court

'to is in the judgment of Mr Justice Jacobs at page

171 commencing at the very bottom, where His Honour

says that:

One must then turn to the grave

circumstances of aggravation. The learned sentencing judge described them as follows:

And His Honour then quotes from the sentencing

judge:

at the time these offences were committed

you were Detective Chief Inspector in

charge of the Drug Squad. That is to

say, you were the more senior police

officer in South Australia involved with

the direct suppression of the trade in

illicit drugs. In this office you

maintained a high public profile.

And His Honour the sentencing judge then set out

the various aspects of Moyse's participation in the

police force and then went on to say on page 172:

I have had occasion to look at some

remarks made by Mr Justice Lee in the

Court of Criminal Appeal in New South Wales concerning the case of one Jackson who betrayed

his position as a Minister of the Crown.	Mr
Justice Lee said these words:

Democracy can only survive when ordinary

men and women have faith in the integrity of

those whose responsibility is the preservation

of the integrity of Parliament and all its

workings. If I may transpose those words to your

case, the system of criminal justice can only
survive if ordinary men and women have faith in

the integrity of the Police Force, of this

Court and all other courts and their workings.

You have done much to undermine that trust and

faith.

And His Honour Mr Justice Matheson then said:

I would not wish in any way to dissent

from or qualify one word of that, but in having

regard to "the personal circumstances of the

Harris 17 5/10/90

offender" which are such potent factors of

aggravation in this case, one must have regard

as well to the punishment the appellant has

inflicted on himself.

And it is our submission that what His Honour

Mr Justice Matheson was saying there is that those

matters are matters - the fact that Moyse was a
police officer, the crimes he committed related to
the very service within the police force -

His Honour is saying that they are matters personal

to the offender, in that case Moyse, and we would

rely on those as being supportive of the fact that

the fact here that the applicant was a serving
police officer at the time of the commission of the

offences, or indeed taking even the worst view that

this Court has taken in the course of this argument

of the applicant's role as a police officer in the
conspiracy, they are not objective circumstances
and accordingly the principle of proportionality in

sentencing has been breached.

Now, Your Honours, unless there is some other

matter that the Court wishes to raise with us we

cannot take the matter any further.

MASON CJ:  Thank you, Mr Woinarski. The Court need not

trouble you, Mr Weinberg. The Court is not

persuaded that there was any error of principle on

the part of the Court of Criminal Appeal in this

matter. The application for special leave to

appeal is therefore refused.

AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE

Harris 18 5/10/90