Hawkins v The Queen

[1990] HCATrans 173

Ah	·!.h,~USTRALIA,1~
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IN THE·HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S136 of 1989

B e t w e e n -

DAVID CHARLES HAWKINS

Applicant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

Hawkins 1 10/8/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 AUGUST 1990. AT 10.20 AM

Copyright in the High Court of Australia

TOOHEY J:  Mr Toomey, when you say "appropriate", do you

mean dictated by the statute or do you mean

something other than that?

MR TOOMEY:  I am sorry, does Your Honour mean in the

application of the formula?

TOOHEY J: . Yes, of the remissions to the non-parole period.

MR TOOMEY:  No. The formula which was applied,

Your Honour, under regulations which formerly

applied when the Probation and Parole Act was in
force, but which regulations are no longer in
force. It applies by way of a transitional
determination by the Court of Criminal Appeal

because of the difficulty created by cases coming

on appeal to be dealt with under the Sentencing

Act, the primary sentence having been pronounced

under the Probation and Parole Act.

BRENNAN J:  In other words, the Court of Criminal Appeal

gives those who have been sentenced before 25

September the benefit of. the remission provisions

to which their sentence was then subject.

MR TOOMEY:	That is so, Your Honour, but it goes a step further; if they recast the sentence they do it by
arriving at the appropriate head sentence and non- parole period under the old provisions, they apply the remissions under the regulations to the non-
parole period and they pronounce the result of that as the minimum term under the Sentencing Act.
BRENNAN J:	When there is a reimposition of sentence?
MR TOOMEY:	That is so, Your Honour, and what the Crown is

conceding in this case is that in following that

formula which is not challenged His Honour simply

made an error in saying 10 years instead of eight

years.

BRENNAN J:  Well then that is something which could be

rectified by the Court of Criminal Appeal, is it

not?

MR TOOMEY:  It could be rectified and it could be rectified

under the Criminal Procedure Act section 19,

Your Honours.

DEANE J:	And what does that say?
MR TOOMEY:	It says that if a sentence was imposed which

ought not to have been, or a sentence was not

imposed which ought not to have been, that may be

corrected by the court.	It is effectively a slip
rule, Your Honour.	May it please Your Honours.

Hawkins 10/8/90

MASON CJ: Thank you, Mr Toomey. Yes, Mr Maurice.

MR MAURICE:  Thank you, Your Honour. I hand up our outline

of argument but there are still some matters which

we wish to pursue on this appeal beyond the

application of the provisions of the Sentencing Act

to the applicant's case, and with that outline I

hand up a letter from the Department of Corrective

Services, a copy of which has been given to our

learned friends, which recalculates a range of
sentences translating them from the new regime to

the old.

MASON CJ:	Yes.
MR MAURICE:	It is possible to summarize Mr Justice Lees'

judgment, which effectively became the Court of

Criminal Appeal's judgment, in this way we would

submit, Your Honours: firstly, we disagree with the

judge's findings about the applicant's mental state
at the time of the commission of the offences and
its relevance to his conduct during that period.

We also disagree with his findings about the

applicant's failure to explain the missing

$1.2 million.

Secondly, we have a duty to consider the

evidence independently for ourselves and to give

effect to our own view about the facts when

considering the adequacy of sentence and,

effectively, that Chief Justice Barwick's dictum in
Griffiths only limits us so far as the sentencing

order itself goes. Thirdly, that in any event the evidence about the abnormal condition of hypomania

is irrelevant to penalty, but then the sentencing

judge so treated it.

Fourthly, the failure of the applicant to

explain what happened to $1.2 million is somehow

relevant to penalty. Fifthly, little weight should

be given to personal circums~ances and other

subjective features when sentencing solicitors who

commit frauds. Sixthly, the aspect of general

deterrent should have been the paramount

is had to the date of the applicant's eligibility for release on parole.

consideration when fixing the non-parole period. regard

Seventhly, because of delay, in any other

case, we would have to seriously consider not

resentencing the applicant but because he was a

solicitor we must not be seen to be allowing our

judgment to be influenced by considerations

personal to him. And lastly, we should sentence

the applicant to the minimum term, less remissions,

which we think the district court should have

Hawkins 10/8/90

imposed had the new sentencing regime been in force

at the time. And presumably, they took that

approach because he was a solicitor again.

The special leave points are really outlined

in the affidavit of my instructing solicitor but if

I could recase them this way, Your Honours.

Firstly, the nature of an appeal under section SD

of the Criminal Appeal Act, with particular

reference to the Court of Criminal Appeal's power

to interfere with findings of fact. Secondly, the

relevance to penalty of an offenders inability to

account for the proceeds of crime.

Thirdly, the duty of the Court of Criminal

Appeal to give reasons when resentencing on a Crown

appeal and fourthly, whether in the administration

of criminal justice solicitors who defraud stand in

a class of their own when it comes to firstly, the

weight to be attached to subjective features when

setting minimum terms; secondly, the weight to be

attached to personal considerations in the exercise

of judicial discretions, such as the discretion

conferred by section SD to resentence and thirdly,

taking account of matters normally taken into

account when resentencing on a· Crown appeal.

The Court of Criminal Appeal's decision would

appear to be now leading authority, not only on the
sentencing of solicitors but the approach to be
taken to dealing with them at various stages in the

criminal justice system. This case will presumably

be the first, or one of the first, to be handed up

to the next district court judge in New South Wales

who has the task of sentencing a solicitor guilty

of criminal fraud.

Fifthly, there are some interests of justice

points in this case. Firstly, the unwarranted

violation of the sentencing judge's findings on

important matters, and secondly, the introduction

of some extrinsic material into consideration on

the appeal, and I am referring here to a statement

concede it was the fact - that the $1.2 million had

to which I will be taking the Court later, where

not been traced to this day. The sentence imposed

by the court is equivalent to a non-parole period of 17-and-a-half years, or thereabouts, under the system in force, until nine-and-a-half months after

the applicant was sentenced by the district court.

If a non-parole period of 10 years had been

imposed by the sentencing judge, the applicant

would have been eligible for release after serving

five years and nine months. If a non-parole period

of 14 years had been imposed, as Your Honours have

Hawkins 4 10/8/90

been told, he would have been eligible for release

after 8 years and 24 days, and those calculations

appear on the Corrective Services' letter that I

have handed up.

As it was he was eligible for release next

. · week, or the week after, on the sentence originally

imposed by the district court judge. It is perhaps

important to bear in mind that he has been in

custody since 12 March 1987, so that at the time

when the Court of Criminal Appeal heard this

appeal, some 12 months after he was originally

sentenced, he had been in custody for 32 months.

DEANE J:  Mr Maurice, have you really done justice to the

judgment of the Court of Criminal Appeal which was
an extempore one, in that, as I read it, what

His Honour did was stress the great importance of the deterrent aspect of sentencing in a case like

this; point out that no reference at all had been

made by the sentencing judge to that aspect; examine

the personal factors and then at the top of page 64

in effect say, "In that context the sentencing

judge's discretion has miscarried because it

appeared that he had not taken any account at all of

the deterrent factor."?

MR MAURICE:  Yes.

DEANE J: Well now, if that is so, the process that they

have followed is somewhat different to the one you

suggested.

MR MAURICE: Well, Your Honour, the Court of Criminal

Appeal's whole view of the case was affected by the

different view of the facts which they took to the

primary judge.

DEANE J: Well, that was really what I was raising with you.

It seemed to me that if you look at page 60, the

starting point was in a case such as this

deterrence is all important and here we find a

sentence in which no reference at all is made to

the trial judge's remarks on sentence to that aspect and they then examine the facts to see

whether there was some hidden regard paid to that

aspect of sentencing and they conclude there was

not.

MR MAURICE: Yes.

DEANE J: Well, now, does that not lead to a threshold

situation where a Court of Criminal Appeal was

entitled to interfere with the sentence?

MR MAURICE:  Your Honour, it is a conclusion, in our

respectful submission, not likely to be arrived at

Hawkins 5 10/8/90

that a person who holds office of a district court

judge in New South Wales is unaware of the

importance of the aspect of general deterrence as

one of perhaps five principal considerations when

sentencing people. And at various stages in his

judgment - - -

DEANE J: That is not what they are referring to. They are

referring to the special importance of the aspect

of deterrence when embezzlement by a solicitor is

involved and that is what, as I read their
judgments, they are saying that they conclude the

trial judge did not take account of.

MR MAURICE:  Yes, well, in our respectful submission, that

conclusion was not open to them and it is a

conclusion which they reached only after they had

in effect substituted their own views of the facts

and said, "Well, how on earth on that view of the

facts could you have arrived at a head sentence of

14 years?" but our submission is that the
sentencing judge was entitled to form the views of
the facts which he did.

An important part of the case in mitigation that was put on behalf of the applicant was the

psychiatric evidence about an abnormal state of

hypomania which led to a state of affairs where he

was hypomanic over a period of years and at one

stage in his remarks the judge pointed out, "out of

control - out of touch which reality" and his

judgment was obviously seriously effected. Now,

that is a consideration which, in our respectful

submission, bears not only upon the setting of a

non-parole period but also upon the head sentence.

It, to some extent, diminishes the

responsibility, perhaps not to a great extent, but some extent, of the applicant during the period in

which these offences were committed. But it is

also important, in our respectful submission, to

see how the Court of Criminal Appeal has taken

deterrents into account in two ways - twice, in

effect - and this, we say, demonstrates the error

in their approach. On a head sentence of 20 years,

it could be clearly be said that 15 years was the

maximum non-parole period which could have been

expected; that is a 3-4 ratio or 75 per cent of the

head sentence. At least, in my experience, it is
not done to impose a non-parole period or fix a
non-parole period which is greater than that in

relation to the head sentence.

One can deduce from this, that the Court of

Criminal Appeal has allowed one year for the

subjective features of the case. I should,

perhaps, make this point at this stage: that it

Hawkins 6 10/8/90

appears that the court has fixed a head sentence of

15 years by taking into account the remissions

which the applicant would have obtained had the

correct sentence been imposed in the first place
because the Sentencing Act abolishes not only
remissions on non-parole periods, it abolishes

remissions on head sentences as well.

It appears that the Court of Criminal Appeal -

this is not articulated in the judgment - has taken

the view that section 4 of the Commonwealth

Prisoners Act, which has now been repealed, picked

up only part of the Sentencing Act, the facultative

part which enabled a State court sentencing a

Commonwealth offender to fix a minimum term but not

the rest of the baggage of a Sentencing Act, for

example, the requirement that the minimum term be,

in effect, 75 per cent of the total sentence and

that the minimum term be the first part of the

sentencing order made and, indeed, the first part

calculated. That is a view which has been

which we have given a reference to in our list, but

subsequently rejected by the Court of Criminal

it does appear from the way in which the sentences

were cast in this case, the operative sentences

being for the Commonwealth offences, that the Court

of Criminal Appeal has treated itself as freely

imposing a head sentence, notwithstanding the

Sentencing Act, and one which did not bear the

relationship to the minimum term required by

section 5(2) of the Sentencing Act, but that is in

the nature of an educated guess because they have

not made clear at all their approach to the .

relationship between the Commonwealth Prisoners Act

and the Sentencing Act.

I come back to the point then that they have

allowed one year out of 15 for the subjective
features in this case, and they have justified that

approach by reference to the aspect of general

deterrence.

Our submission is that this means that general deterrence have been taken into account twice,

firstly in fixing a head sentence of 20 years, and

secondly, in determining the proportionality

between the non-parole period and the head

sentence.

MASON CJ:  Now, Mr Maurice, it would be unwise of you to

assume that we are familiar with the provisions of

the Sentencing Act and the Commonwealth statute,

and in particular the interrelationship between the

two of them and the problems that are said to arise

from endeavouring to apply them together.

Hawkins	10/8/90
MR MAURICE:	I apologize, Your Honour, for making that

assumption. In this case the applicant was charged

and pleaded guilty to a number of Commonwealth

offences and to a number of State offences. A

schedule of those offences is set out on pages 51

to 52 of the appeal book, and on pages 52 and 53

are set out particulars of other offences which the

applicant asked to be taken into account.

MASON CJ:  Now, the first three counts in the indictment

were Commonwealth offences. They were the only

Commonwealth offences in the indictment?

MR MAURICE:  Yes, Your Honour.

MASON CJ: But there were additional Commonwealth offences

that were taken into account in the schedule?

MR MAURICE: 

That is so, Your Honour, yes. And the way the

court structured - applying the totality principle
in seeking to arrive at a global result, the way
the court structured its sentence appears at page

65. It did so by making the effective sentences those which applied to the Commonwealth offences,

that is, the first three counts.

In relation to the State offences, that is

counts 4 to 9, it fixed terms which it is entitled

to do under section 6 of the Sentencing Act, five

years on each count to be wholly concurrent with

each other and to be wholly concurrent with the

sentences imposed in relation to the first three

counts so that they are within the sentences

imposed in relation to the Commonwealth offences.

It could have and, indeed, at one stage it did

relist the matter, Your Honour, for the purpose

of recasting -

MASON CJ: Rearranging.

MR MAURICE:  Rearranging.

MASON CJ: Yes, that appears at pages 68 and 69 of the

application book.

MR MAURICE:  Yes. The course proposed, we would suggest -

it is not a matter of great moment on this appeal

but it would have been impermissible inasmuch as it

seemed that what the court had in mind then was to

make the State offences the effective ones - - -

MASON CJ:  First of all, would you tell us what was wrong

with what was done initially?

MR MAURICE:  Is Your Honour referring to the way in which

the Commonwealth offences have been dealt with?

Hawkins	10/8/90
.	MASON CJ: Yes.
MR MAURICE:  Your Honour, since this judgment was handed

down the matter of the relationship between the

Commonwealth Prisoners Act and the Sentencing Act

has been dealt with by the Court of Criminal Appeal

in the case of Alfred Pilau Oti. It is an

unreported judgment of the court in which the

Chief Justice presided on 1 June this year. I

should just refer Your Honours to section 4 of

the - - -

MASON CJ:	Of what?
MR MAURICE:	Section 4 of the Commonwealth Prisoners Act and

it appearing at page 4 of the judgment of the

court. Over a period of years that section has

been treated as picking up the provisions such as

the -

MASON CJ:	The State law.
MR MAURICE:	Yes, in the Probation and Parole Act which was

repealed by the Sentencing Act. And what

effectively the court held in this case - and this

really appears in a passage appear at the bottom of

page 10 and going on to the following page:

Once it is accepted that a minimum term under

the State Act is "a lesser term of
imprisonment" within the meaning of s 4(2) of

the Commonwealth Act then, by virtue of

s 4(2), the Court is to have regard to s 5(2)

of the State Act.

I should take Your Honours to the State Act, that

is the Sentencing Act. Section 5(1) deals with

setting minimum terms of imprisonment and

additional terms and it specifies an order in which

this exercise is to be carried out.

MASON CJ: So it is the reverse of what it used to be?
MR MAURICE:	It is the reverse of what it used to be and it

was described by the minister in his second reading speech as sentencing from the bottom up rather than from the top down. And then, in subsection (2), it provides that:

The additional term must not exceed one-third

of the minimum term, unless the court decides

there are special circumstances.

(3) If a court sets an additional term that

exceeds one-third of the minimum term, the
court is required to state the reason for that

decision.

Hawkins 10/8/90

I should - we are dealing with the matter

generally - refer you to schedule 2, in particular

clause 8. Schedule 2, if I could describe its

function generally this way: it provides for the

recalculation of the sentences of persons sentenced

prior to the commencement of this Act so that

instead of going on accumulating remissions under

the old system a minimum term became substituted

for their old non-parole period and it was generous
in the way it operated.

But clause 8 has been - and in particular, of course, clause 8(2) - has been interpreted by the

Court of Criminal Appeal as not having any

application to persons who were sentenced prior to

the commencement of the Act but who came up for

resentence before the Court of Criminal Appeal

after that Act came into force; in other words,

the legislation applies in relation to persons who

were sentenced before the commencement of the Act,

unless it is a mere matter of correction under
section 19 of the Criminal Procedure Act and the

decision in which the court reached that conclusion

is Boris Joseph Valentini, it is number 27 on our

list, an unreported judgment of the court of
6 December 1989, and I was not proposing to take

the -

MASON CJ:  Mr Maurice, for the moment I do not understand

why this Court should be concerned with the matter,

or this aspect of it. It was relisted before the

Court of Criminal Appeal, as appears from page 68

in the application book. The court indicated that

it was aware of the difficulties in this respect

and apparently was willing to do something about

it.

MR MAURICE:	Yes.
MASON CJ:	Now, we suffer from this difficulty, amongst

others, that we do not have the advantage of any
consideration by the court below of the

interrelationship of these statues - we are not
familiar with them.	Why was the matter not taken

up before the Court of Criminal Appeal and dealt

with?

MR MAURICE:  Well, my understanding, Your Honour - I did

not appear on that occasion - my understanding is

the opportunity was not really there. The problem

for this applicant is the first time any

consideration was given to the application of the the matter was before the Court of Criminal Appeal

and normally he would have had, if he was

dissatisfied with the way in which the Act was

applied to the facts of his case, he would have had

Hawkins 10 10/8/90

. . an· opportunity to appeal to some intermediate appellate court, but he has been deprived of that.

I am not suggesting that this Court really

should concern itself with these matters. The

concession made by my learned friend effectively

covers them. I am merely explaining, Your Honour,

by way of background, the orders that the court

made and how they were arrived at, and our

submissions have now, in view of the concession,

completely withdrawn from any consideration of the

Sentencing Act and its interrelationship with the

Commonwealth Prisoners Act.

MASON CJ: That is fully covered by the concession made by

the Crown?

MR MAURICE:  It is fully covered by the concession,

Your Honour.

BRENNAN J:	We are concerned only with the totality of the sentences, are we? Head sentence and what used to
be called non-parole would now be called minimum?
MR MAURICE:	Yes, Your Honour, yes.

BRENNAN J: And whether there was any error of principle

affecting the imposition of those sentences by the

Court of Criminal Appeal?

MR MAURICE: Well, it is conceded that there was,

Your Honour, and that the very least result is that

the matter should be either dealt with here or remitted back to the Court of Criminal Appeal.

BRENNAN J: Yes in relation to these statutory provisions?

MR MAURICE: Yes, Your Honour, and the matter can be - ~ -

MR MAURICE: But those apart - - -?

MR MAURICE:  Those apart? Your Honour, our principal

contention is that the Court of Criminal Appeal

should never have interfered with the sentence

imposed in the first place and that its whole

approach to a section SD appeal was affected by

error.

DAWSON J: All we need to know is the head sentence was, in

effect, 20 years and the minimum sentence was, or

should have been, eight years - I say it is 14

reduced to eight.

MR MAURICE:  Yes. In a series - I am sorry Your Honour.

DAWSON J:  I am puzzled and do not understand it for one

moment but when sentencing now, in the light of the

Hawkins 11 10/8/90

Sentencing Act, you express each of the two

components with the remissions taken off?

MR MAURICE:  No, Your Honour, in a similar decision of the

Court of Criminal Appeal it says that it has ruled

that when sentencing under the Sentencing Act, one

does not pay any regard to the remissions which

· were previously available on non-parole periods or,

indeed, head sentences and that is the decision of the court in Maclay. It is an unreported decision

and it is on our list of authorities, but they have

recognized that there may be some exceptions to

that and subsequent to the decision in this case it

has become well recognized that when the Court of Criminal Appeal quashes a sentence imposed before

the Sentencing Act came into force it must do, as

my learned friend has already outlined, look at

what should have been the head setence; what

should have been the non-parole period; endeavour

to translate that into a new form of sentencing

order, a minimum term plus an additional term, but

take account of the remissions which would have

been available to the offender had he been

sentenced correctly in the first place.

DAWSON J:  How does it take account of the remissions? What

does it do?

MR MAURICE: Well, by obtaining information such as the

information that is contained in that letter from

the Department of Corrective Services there, so

that if the court determines that the appropriate

non-parole period should have been 14 years, for

example, instead of setting a minimum term of 14

years it will see what remissions would have been
granted to the offender and deduct them from the

hypothetical non-parole period and then fixed that

as the minimum term so that, in this case, having

determined that the proper non-parole period was 14

years it would, by reference to that sort of

information, have fixed a minimum term of eight

years.

DEANE J: Would it not simply prevent a person being

prejudiced by having appealed by itself taking

account of what the operation of the second

schedule would have been if he had not appealed, or

if that sentence had been imposed originally?

MR MAURICE: Yes, Your Honour.

DEANE J:  Which seems to be what the clause 8(2) of the

second schedule envisaged; that the Court of

Criminal Appeal would take account of it, therefore

there was no need for the direct application of it.

Hawkins 12 10/8/90

MR MAURICE: Well, Your Honour, the difficulty with that is

that that decision in Valentini - - -

DEANE J: Well, do not let me lead you on to another point

if that is unnecessary.

MR MAURICE:  It is given a very narrow operation to that,

Your Honour. I merely point out that has been held

to apply only to section 19 of the Criminal

Procedure Act, which is the slip section, and not

to have any wider application to cases such as

this - I am sorry, Your Honour, I have

misunderstood what you said. But, I should perhaps

also point out that the Commonwealth Prisoners Act

was repealed with effect from 17 July and it has

been replaced by a comprehensive code of sentencing

legislation and there has been no appeal, on the

information we have, against the decision in Oti

and it is regarded, as I understand from my learned

friend for the purposes of this appeal, as being

correct.

BRENNAN J:  Mr Maurice, is there any reason why we should

not deal with this case simply on the basis that

what has happened is that the accused has been

resentenced to the amounts that appear now in the

Court of Criminal Appeal's judgment; that there is

a problem about ensuring that whatever was said on

that occasion is made consistent with the statutory

provisions; that can be done by the Court of

Criminal Appeal; and the question left for us is whether or not the amounts so adjusted are in accordance with sentencing principles?

MR MAURICE: Yes, Your Honour, or whether the Court should

have interfered in the first place?

BRENNAN J: That is right.

MR MAURICE: That is so, Your Honour.

BRENNAN J: Well then, can we deal with that?

MR MAURICE: Yes, Your Honour.
DAWSON J: And the figures are 20 with a minimum of 14.

MR MAURICE: Figure of 20 with a minimum of 14.

DAWSON J: Well, I am not sure we need to concern ourselves

with that.

MR MAURICE: Yes, but the reason I had taken that up,

Your Honour, was to point out that if there were no

subjective features in this case, the maximum non-

parole period that could have been expected would

have been 15 years. So that one can say, "The

Hawkins 13 10/8/90

Court has allowed one year out of 15 for subjective features" and have justified this by reference to the aspect of general deterrence. But we say this

is an error of principle because it means that they

have taken into account the aspect of general

deterrence twice, but taken it into account in

setting a very high head sentence and have taken it

into account again with reference to the

proportionality between the head sentence and the

non-parole period.

This was a case in which the sentencing judge found, and was entitled to find in our submission,

that there were strong subjective features and

those were the words he used to describe the case
of mitigation I have just put up, and in that

respect it is clear from a reading of his remarks,

in our submission, that he was much influenced by

the evidence of the psychiatrist, Dr Clark, and by

the corroboration which was afforded to that

evidence by a range of witnesses, including another

medical practitioner, who was a client, who had

lost money as a result of the applicant's conduct,

prison staff who spoke about the applicant's

rehabilitation, following psychiatric treatment in
prison, during the 18 months or so it took before
he was sentenced in the district court, other legal
practitioners and his ex-wife.

Moreover, he reached the view that although

the applicant was unable, at that stage, to trace
the whereabouts of $1.2 million he accepted that he
had not retained any of the proceeds of his crime;
the applicant gave evidence on oath. An important
feature ot His Honour's finding is that he found

that part of the reason for the applicant's

inability at that stage - and investigations were

still going on; he was in gaol and he was co-

operating with the Law Society in seeking to trace

what had happened to the funds; his dealings were

multifarious over a period of years - but he found

that his condition of hypomania, as described by Dr

Clark in his report, afforded some explanation as	to why the applicant was unable, at that point in
time, to have accounted for that money.

But he was faced, in our respectful

submission, with the task of deciding whether he

had retained some of the proceeds of his crime or

deciding whether he was unable to reach that
conclusion. There was no intermediate position
which he could adopt for the purpose of penalty.

In our submission, if the Crown relied upon the

fact that he had retained some of the money as an

aggravating circumstance then it had to prove that.

Hawkins 14 10/8/90

Not only did it not prove it, it did not seek

to prove it. It is recorded in His Honour's

remarks that it was accepted on both sides that he

had not retained any of the proceeds of his crime.

I was going to take Your Honours to this shortly,

but the Court of Criminal Appeal's judgment can give a false impression about the extent of the

q,,iestioning on his issue. There, in fact, were

only three questions asked of the applicant by the

Crown concerning this $1.2 million; none of them,

on their face, challenging his assertion in any

direct way and certainly the trial judge was best

placed to arrive at the conclusion that it was

accepted on both sides of the records.

BRENNAN J: Where are those questions, Mr Maurice?

MR MAURICE: At the bottom of page 29, Your Honour, the

third last question. That is as far as that

questioning went.

TOOHEY J: It seems to have been fairly resolutory

cross-examination there; looking at the question on

page 30, at line 10, when he was asked whether he

banked any moneys in Hong Kong and the answer was:

I withdrew two amounts from American Express.

And that seems to have been the extent of the

questioning.

MR MAURICE: Yes, Your Honour, they may have related to

another matter.

TOOHEY J:  It is a troubling aspect of it, Mr Maurice. You

put it as if somehow there was an onus on the Crown

to demonstrate that the applicant had retained the

money. I am not sure that that is so but can we

take it - perhaps we cannot - that the disposition

of this very considerable sum, although it could

not be particularized is to be found somewhere

within the transactions that are described or is it

possible on the evidence that there are other

transactions which were simply not adverted to

which might explain where this money went?

MR MAURICE:	Your Honour, the applicant himself, endeavoured through questions put to him by his counsel to
explain as best he could what he knew about this
money and why he was not at that stage able to
account for it. But the full picture certainly was not, as to all of the transactions in which the applicant had been engaged over the period of years during which these offences were committed, before the Court.

Hawkins 15 10/8/90

TOOHEY J:  No, but you could understand, perhaps, one

picture would be that there are a range of persons

with whom the applicant had dealt financially and,

perhaps, dealt on many occasions and the complexity

of the transactions made it impossible to trace

each step but it could be said that somehow or

other the money got lost in that area.

MR MAURICE:	Yes.
TOOHEY J:	On the other hand, it may be that it is simply

not possible to reach that conclusion at all.	You
simply have an unexplained situation as to this
very considerable sum.

MR MAURICE:  I think the latter is probably the case,

Your Honour, but the evidence was that there were

ongoing investigations into the applicant's affairs

which may yet reveal what had happened to that

money.

BRENNAN J: And had it revealed it by the time it got to the

Court of Criminal Appeal?

MR MAURICE: Well, Your Honour, in our respectful

submission, that is not properly a matter which the

Court of Criminal Appeal could take into account although it appears to have done so.

BRENNAN J: What is the fact that they were not entitled to

take into account?

MR MAURICE:  Whether any progress had been made in tracing

these moneys in the period between the time of

sentence and the time that the appeal was heard.

This after all, Your Honour, was a section 5D

appeal brought for, presumably, the limited purpose

described in Griffiths and, more recently, by some

members of this Court in Malvaso, in other words,

not an appeal designed to ensure that the applicant

got his just desserts, but to correct some error.

BRENNAN J:  But once they discoved there was an error were

they not then entitled to look to the facts of the

case?

MR MAURICE:  We would submit, no, Your Honour, not on that

type of appeal. I did want to refer the Court to

section 12 of the Criminal Appeal Act. It may not

be a direct application to this situation,

Your Honour, but at least it flags, in our

respectful submission, the correct approach. It is

a section which deals with supplemental powers of

the court to:

(a) order the production of any document -

Hawkins 16 10/8/90

and to:

(b) order any person who would have been

compellable witnesses at trial to attend -

and give evidence on an appeal and to appoint

special experts, that sort of thing, but at the

very end, it contains this proviso:

Provided that in no case shall any sentence be

increased by reason of, or in consideration of

any evidence that was not given at the trial.

DAWSON J: Where is it that you say the Court of Appeal took

into account the fact that the ongoing

investigations had not or had revealed something?

MR MAURICE:  The reference, Your Honour, is at page 56 commencing at line 21.

MASON CJ: But does that refer to anything that came into

existence after the matter was dealt with by the

sentencing judge?

MR MAURICE:  No, Your Honour. I have sought instructions on

it and my instructing solicitor and counsel who

were in attendance at the time were at a loss to

know where this information came from.

MR TOOMEY:  Perhaps I can assist Your Honours. My learned

junior, who appeared before the Court of Criminal
Appeal, says he was asked what his instructions

were as to whether any of the money had been traced

and said from the bar table that his instructions

were that it had not.

MR MAURICE: Well that, no doubt, solves that riddle.

DAWSON J:  It does not appear that the Court of Criminal

Appeal were attempting to undermine any of the

findings of the sentencing judge. What they were

attempting to do was discover the circumstances in

which he made those findings to discern whether he	could have placed any great weight on them because
they accept the finding that the accused had not
"stashed away" - as they put it - any money for
himself but what the Court of Criminal Appeal seems to be saying was that was not a very strong finding, not something that would have influenced
you greatly in 1 the circumstances. But it did
not attempt to say there was any error there, as I
read it anyway.

MR MAURICE: Yes, well if I can deal with that point,

Your Honour. Of course, the "positive finding", as

it is referred to, that he had not concealed any of

the proceeds of his crime really had only this

Hawkins 17 10/8/90

consequence, in our submission, that that was not

an aggravating feature to be taken into account in

determining penalty.	It did not entitle him to any
merit marks.

DAWSON J: Yes.

But the Court of Criminal Appeal seems to have

said, the overwhelming impression, in our

respectful submission, on reading Mr Justice Lee's

judgment, that somehow the fact that he could not

account for this money ought to be taken into
account. And what we are referring there to,

Your Honour, is what appears at pages 61 to 62, and

particularly at line 24 where His Honour refers to

the difficulty he had in understanding how the

sentencing judge came to a positive conclusion.

MASON CJ: Well, it is very difficult to understand, is it

not? When there is $1.2 million missing, not

accounted for, it is very difficult to accept a

bland statement that is in the form of a positive

assertion that "I have nothing stashed away". The

only inference available surely is that there is a

possibility.

MR MAURICE:  He had to make a finding on it one way or the

other, in our submission, Your Honour, and he was

entitled to make the finding he did.	It was not as
if - - -

DAWSON J: That is something the Court of Criminal Appeal

does not dispute. It said, "All right, well he

made that finding. We accept that, but we have to

look at the circumstances in which he made that

finding to understand why he imposed the sentence

which he did."

MR MAURICE:  Yes.

DAWSON J: And they come to the con~lusion that even if he

did make those findings in those circumstances it

that the important thing here was deterrence and	is not enough to displace the view that they held
that had been disregarded.

MR MAURICE: Well, if I could just complete this,

Your Honour. We do say that effectively what they

have done is to say that he should have been

sentenced on the basis that there still attached to

him a suspicion that he may have retained some of

the proceeds of his crime, a matter which could

not be established on the probabilities, but which

still remained an unanswered question.

BRENNAN J:  No, no, they say, "Well, we accept that

finding." But it is not a finding in all the

Hawkins 18 10/8/90

circumstances to which His Honour could have

attached much weight.

MR MAURICE: Well, Your Honours, could I just refer finally

on this to what appears at page 62, line 9, where

the court says:

But the point is the Crown Prosecutor

cross-examined the respondent about the money

and had been unable in any questioning to have
an answer to the question "Where is the $1.2

million?"

What follows after that apparently should be in

another paragraph, but by saying, "the point is",

they are suggesting that some significance attaches

to the fact that the whereabouts of this money

remained unexplained at that point in time. It has

to leave the applicant with the impression that he
has been resentenced on the basis that there

attaches to him a suspicion that he is still

hanging on to $1.2 million, that he has it

concealed somewhere. And that is not a proper

basis for sentencing anyone, in our respectful

submission, Your Honour.

If it was not what they intended, then they

have failed to make clear, and there is a clear

duty in these circumstances, in our respectful

submission, to make clear the findings which lead

to the imposition of custodial sentences of this

magnitude.

BRENNAN J: Here is $1.2 million acquired by some kind of

fraudulent conduct from somebody else. It is

somebody else's money. And it is acquired by
somebody who occupies a position of confidence by

reason of his status as a solicitor. And he comes

to the court and says, "It is somebody else's

money. I got it by fraud, but I cannot tell you

where it is." Now, it may·be that there is no

positive inference that he stashed it away, but it

kind of check on other people's money to know where is an undoubted inference that he did not keep any it has gone.

MR MAURICE:  Certainly, Your Honour. We would not - that

his affairs were in a complete mess, Your Honour,

we would not quarrel with.

BRENNAN J:  And in the light of the problems of deterrence

that must surely weigh?

MR MAURICE:  If it was stated that way, yes, indeed,

Your Honour, but the overwhelming impression we

respectfully submit is to be derived from this is

that he has been sentenced on the basis of a

Hawkins 19 10/8/90

suspicion and that the original sentence had been

disturbed on that basis as well.

BRENNAN J:	An absence of any accounting by him as to what happened to the $1.2 million.
MR MAURICE:	Your Honour, it is important that I refer

Your Honours to what the sentencing judge said in

connection with this issue. It appears at page 38

commencing at line 20 and His Honour speaks about

it as being:

A most important consideration is, what has

become of the money.

Because the Crown apparently	was not pursuing it he
did not put it to one side;	he looked at it
independently of the Crown's	agitation of the issue
before him and he said:

In a case such as this, the prisoner's

evidence must be regarded, if not sceptically,

at least with great scrutiny ..... Such assets

as remain, he is co-operating with the Law

Society and identifying so that they can be

realized for the benefit of his victims.	He
was involved in high pressure, high risk

business dealings with room for being taken

down by associates.

One possible explanation for the loss of the money

was that an associate had taken it.

He was accustomed to calling frequently daily,

on his bank manager with large amounts of cash

from his businesses. He says his ventures

were out of control, he was uncertain where

the losses were going, and he was relieved

when the whole thing came to an end.

Then follows this important sentence:	I am about to refer to the subjective features
of his case. Much can be drawn from them
which I believe corroborates his assertions on
this objective aspect. His psychiatrist has
described this as a a remarkable case.
Consequent on extraordinary stress on an
already unusual personality, he plunged into a
manic state of frantic over-activity, a frenzy of ego bolstering, quite out of touch with
reality. His referees of impeccable
credentials, describe a change of personality
in this period. There is no suggestion on
either side of the record that he has hidden
the money away, or was living an unusual
lifestyle.

Hawkins 20 10/8/90

If that were the case, it was quite impermissible for the Crown before the Court of Criminal Appeal

on a section S(d) appeal to be agitating that

His Honour should have arrived at some different

conclusion, in our respectful submission. If it

was not a live issue as far as the Crown was

concerned before the sentencing judge, then it

ought not to have been allowed to be a live issue

before the Court of Criminal Appeal.

TOOHEY J: Well, I wonder if you are not elevating it beyond

the importance which the Court of Criminal Appeal

attached to it, Mr Maurice. I mean, at the end of

the day however you view it, there is a very

substantial sum of money which has gone and for

which the accused, the present applicant, can give

no satisfactory explanation. You do not really

have to go much further than that do you?

MR MAURICE:	No, Your Honour. Well, the other significant interference with the trial judge's findings that
we rely upon is in relation to the psychiatric
evidence and if I could take Your Honours to that.
At an early stage in Mr Justice Lee's judgment he made clear his departure, in our submission, from
the view which the sentencing judge had taken of the offences and the offender. If I could take
Your Honours to page 55, in the second paragraph on
that page, beginning at line 11, where His Honour
says:

The offences were committed between

October 1983 and February 1987, and it is

pertinent on this appeal to remark that there

is not the slightest doubt that the respondent

was from the very inception fully aware of the

dangerous game that he was playing, and

equally fully content to take the risk

attached thereto.

MASON CJ: Well, that must have been so surely?

MR MAURICE: Well, not if one has regard to the findings

which the - it is to be qualified significantly, in

our respectful submission, Your Honour, by the

findings which the sentencing judge made in

relation to this abnormal state of hypomania, when

he talks about him being out of touch with reality,

in a frenzy of activity and the impression which,

obviously, this sentencing judge formed was that he

was very much out of control.

BRENNAN J: Insane?

MR MAURICE:  No, not at all, Your Honour. The psychiatric

report on this is clear, Your Honour, it is very

adequately reflected in the sentencing judge's

Hawkins 21 10/8/90

remarks on sentence and it went in without

objection, there was no request that the

psychiatrist be produced to cross-examination and

his remarks speak for themselves, Your Honour. If

I could take you to a further passage - I have just

read how he spoke about the "extraordinary stress"

and he "plunged into a manic stage of frantic

overactivity". He refers again to this issue, at

page 41, or perhaps I should take Your Honours to page 40, line 16, where he spoke about Dr Clark's

evidence, and he refers to a:

Dr Freiberg the psychiatric registrar who had

then been treating the prisoner weekly for

6 months at the Metropolitan Remand Centre.

MASON CJ: Well, then there is a reference to these events

in his life?

MR MAURICE:  Yes.

MASON CJ: Well, where is the particular passage you ought

to take us to?

MR MAURICE:  Take Your Honour to page 41, line 8, where he

refers to the doctor's diagnosis of:

"manic defence" ..... he was in a state of

increasing hypermania until eventually he

could not go on and confessed to the

authorities.

And then he refers to the personality change of

which others had spoken:

erratic, occasionally apathetic and reckless.

And there were physical symptoms too, referred

to - - -

MASON CJ:  Why does that deny that he was aware of the

dangerous game that he was playing and that he was

content to take the risk?

MR MAURICE:  We respectfully submit that he is almost out of

control, Your Honour. There is an antipathy, we

would respectfully submit, between being fully

content and being out of control in a state of

hypomania, out of touch with reality.

DEANE J: The end of the next paragraph might be of some

assistance to you, an explanation distinguishing

this case from one of cold blooded fraud.

MR MAURICE:  Yes, Your Honour.

Hawkins 22 10/8/90

DAWSON J:  It is the sort of case which you commonly get of

someone who gambles money and then loses and then gambles again to try and recover it; there is an

aspect of mania always about that.

MR MAURICE:	Indeed, Your Honour, and the more it is seen to play a part in the criminal misconduct the more
~ignificant it becomes, in our respectful
submission, in fixing minimum terms when one looks
at his prospects for rehabilitation and the fact
that there is some explanation for his conduct, it
is not, as His Honour suggests here simply cold
blooded.

DAWSON J: But the fact that a solicitor puts himself in

that position, that is the important thing and that

is as the Court of Criminal Appeal saw it.

MR MAURICE: That is taken into account, Your Honour, in

which that - the non-parole period.

fixing the head sentence of 20 years, in this case. proportion

DAWSON J:  I know you said that at the beginning. Why

cannot you take it into account twice if you think

that is appropriate?

MR MAURICE:  You do, Your Honour, but our respectful

submission is that when setting a non-parole

period, as this Court pointed out in Bugmy very

recently in relation to minimum terms for persons

serving life imprisonment in Victoria,

considerations like that do not have the same

weight or that they have to give way to other

considerations when a minimum term is being fixed.

So if there was this aspect of a man whose ability

to control his own actions was significantly

affected by a state for which he was not

responsible - this was not a self-induced

condition - then it is a matter which deserves

merits, serious considerati9n.

TOOHEY J: You say it was not self-induced. I am just not

clear from reading the material whether this was a
situation in which the applicant was in serious
financial difficulties and therefore forged a bill

or a security in order to meet some sort of

contingency. It really seems to have the aspect of
a - the whole series of transactions that went on

over, what, two years - - -

MR MAURICE: Longer than that, Your Honour.

TOOHEY J:	I thought they
MR MAURICE:	Three years.

Hawkins 23 10/8/90

TOOHEY J:  I thought it was from October 1984 to

January 1987.

MR MAURICE:  I think he conceded that he has begun doing

this perhaps as late as early 1982 or the beginning

of 1983.

TOOHEY J: _It is not even clear that each step was, as it were, to cover up the one that gone on before as

opposed to simply embarking upon a series of

transactions designed to produce some financial

return. I am not asking you to go to any detail at

all but what is the general picture in that

respect.

MR MAURICE:  He was investing in a number of enterprises,

Your Honour, and particularly, as I understand the

facts, hotels - investing in hotels and borrowing

very substantial sums of money with enormous

interest bills that had to be met.

TOOHEY J: But borrowing by means of forged documents?

MR MAURICE:  Yes.

TOOHEY J: That is, in a sense, what I was putting to you

that he forged these documents in order to embark

on particular transactions rather than to cover up

or perhaps make good some loss that had been

incurred momentarily and under some stress.

MR MAURICE:  No, it was not that situation, Your Honour,

although he had got into a robbing Peter, paying

Paul momentum.

TOOHEY J:  It is an aggravation or an aggravating feature in

this case, I would have thought.

MR MAURICE:	Yes, indeed.
BRENNAN J:	Mr Maurice, these are all very interesting

submission to make, no doubt, to a Court of

Criminal Appeal but once we dispose of the

statutory problems what is there left apart from a

difference in weight that is given to relevant

sentencing factors by the Court of Criminal Appeal

and your point about a finding of fact? Is there

anything else?

MR MAURICE:  We submit it is a very important point,

Your Honour, that the approach which the Court of

Criminal Appeal should adopt on a Crown appeal

against sentence - to a revision of the sentencing

judge's findings of fact.

BRENNAN J: Well, I appreciate that point but if we just put

that point aside, is there anything else in the

Hawkins 24 10/8/90

case apart from an argument by you that the wrong

weight was attributed by the Court of Criminal

Appeal to factors which are relevant to sentencing?

MR MAURICE:	Yes, having decided, Your Honour, that the sentence was manifestly inadequate, the Court then
had to address the question of whether it should
intervene and resentence. This was a case which
called for very careful consideration of how that discretion should be exercised for a variety of
reasons but principal amongst which was the delay
which had occurred in bringing the appeal on.

It is not to the point, in our respectful

submission, that the delay was perhaps nobody's

fault. The point is that it was not the

applicant's fault: twelve months had passed; he

had been in custody at that stage for 32 months -

that is at the time he came up before the Court of

Criminal Appeal - and he had, over that period of

time, the expectation that he would be eligible for

release on parole on 18 August this year.	So that
for him the end was in sight.

Now, the Court of Criminal Appeal recognized

the weight which would normally be attached to a

consideration of these factors that said, "Because

you are a solicitor, in effect, or because you were

a solicitor at the time, we are not going to attach

any significance to it in this case". In our

respectful submission that is an wholly extraneous

consideration; it should not have been taken into

account; it involves a double element of punishment

as we have pointed out in our submissions but it
also sets a precedent for the approach which courts
should adopt when dealing with solicitors in the
criminal justice system, not just at the sentencing

point but at all stages.

It reflects an overt concern by the court that

it should be seen to be being soft on solicitors;
not that it should actually be soft.	Now, that is

a factor, in our respectful submission, which

should not have influenced the Court's

consideration at all. It should not have been

dealt with, when it came to exercising this

discretion, any differently from any other

offender. The relevant considerations should have

been simply weighed up and a decision made.

DAWSON J: That is merely to say that the court imposed an

excessive sentence by placing too much weight on

one consideration. Now, this Court has never

interfered with excessive sentences. An excessive

sentence must always result from the court placing

more emphasis on one consideration than other.

Hawkins 25 10/8/90

MR MAURICE:  I understand Your Honour's point, with respect,

but we say that this is erecting a new principle.

If this judgment goes into circulation and people

say, "Well, this solicitor who is charged with

fraud or pleaded guilty to fraud; he is asking the

court to exercise a discretion; we must be

particularly wary about exercising a discretion in

his favour because we are concerned about public

perceptions that we may be soft on solicitors".

BRENNAN J:  Is that not just another way of saying that

where there is a case which calls out for deterrent

punishment one cannot take other countervailing

circumstances into account too heavily. One of the

cases which does call for heavy deterrence are

cases of fraudulent solicitors. I mean, it may be

the same with other trustees, for example.

MR MAURICE:  If that were all there were to it, Your Honour,

we could not possibly quarrel with it but, in our

respectful submission, it goes beyond that. If I

could take Your Honour to the critical passage on

this? It is at - - -

BRENNAN J:  I am not suggesting that the view that is

expressed by the Court of Criminal Appeal is

expressed in a way which should command universal

assent. All I am suggesting is that the

underlying problem is one of the weight to be
attached to deterrent sentences or the importance

of deterrence in sentencing, I should say.

MR MAURICE:	Of course it is our submission that it goes beyond that, Your Honour.
BRENNAN J:	Yes.
MR MAURICE:	The passage that we wanted to take Your Honours

to is at page 64 where His Honour acknowledges, in

effect - adopting counsel's expression, "the human

agony" - that was a factor and it would normally be

a factor justifying the court in not resentencing.

He said, at line 20: 

For myself I consider that that submission made in any other case would be of

considerable weight, and in saying that I do
not deny the emotional concern no doubt

engendered in this prisoner by having to wait

that period -

and then the critical part -

but this court has a duty to make clear to the
public that solicitors who default in the

fashion demonstrated in this case cannot

Hawkins 26 10/8/90

expect to have personal considerations placed

in the way of the public interest.

In other words, it is not a matter of making

it clear to other solicitors who may be minded to

defraud; it is a matter of making it clear to the

public.

DAWSON J: What is wrong with that? It is important that

the public can have confidence in the law and those

who are concerned with its administration.

MR MAURICE: Well, Your Honour, it is an important

consideration when determining the adequacy of the
sentence, but it is not a proper basis for
dismissing entirely considerations which normally
at this stage of the exercise, would be matters of

great weight.

DEANE J: Is it a personal consideration, or is it a defect

in the administration of justice?

MR MAURICE: Well, with respect, Your Honour, we would adopt

what Your Honour said. It is that, as well as a

personal consideration and it is fundamentally that

if one has regard to what has· been said by some

members of this Court in relation to Crown appeals

and the aspect of double jeopardy. And it was

particularly so, and this man had been in custody,

at the point of time these remarks were delivered,

for 32 months.

TOOHEY J: Well, it is fair enough to point to the sentence

and the use of the words in any other case, but I

would be. surprised if His Honour had meant that it.

was only in this type of case that personal

considerations might have to yield to some broader

consideration. I mean it would be very easy to

substitute for the words, "that solicitors who

default in the fashion demonstrated" et cetera,

some other category of offender which would not, I

think, be inconsistent with what the Court of

Criminal Appeal said in this case.

MR MAURICE:  Your Honour, we say that the Court becomes

manifest from that and from another passage where

His Honour refers to the public, that the concern

is one of of the courts being seen to protect one

of their own, a member of the legal profession. So

it is effectively a consideration peculiar to legal

practitioners.

TOOHEY J: That is reading a great deal into it, Mr Maurice,

I think.

MR MAURICE: Well, with respect, Your Honour, there is

another passage which supports that view and that

Hawkins 27 10/8/90

is at page 59, line 14, where His Honour talks

about:

In considering the adequacy of sentence, the

aspect of deterring others in the legal
profession and making clear to the public that
the legal profession will not be protected in

the courts against frauds of any kind.

BRENNAN J: Is that not thoroughly justified? What does

"deterrence" mean, except making manifest to the

public that this kind of conduct will not be

tolerated, and when it is the case of officers of

the court, members of the legal profession who by
reason of that status have a confidence reposed in

them which the courts ordinarily support, when that

confidence is abused, as it is, then should not the

public be told that the court will do justice in

the case?

MR MAURICE:	Yes, indeed, Your Honour, but all of what Your Honour said, with respect, in our submission,
is taken up in the words "the aspect of deterring others in the legal profession".
DAWSON J:	To put it quite bluntly, there is a duty to make

it quite clear that the law does not treat its own

in any favourable way and that is in the public

interest that that should be made clear and I think

that is what they are saying. There is nothing

wrong with that.

MR MAURICE:  Indeed, Your Honour, but here they have said - I am talking about page 64 now - it is our

submission this is the proper interpretation of

what His Honour said - we would otherwise have

attached considerable significance in any case of

similar gravity, similar magnitude with the same

personal circumstances and subjective features, we

would have attached considerable weight to this in

addressing the question of ·whether we should

exercise our discretion to resentence but because

he is a solicitor we will not.

DAWSON J: A solicitor who defaults can expect little mercy

in the courts.

MR MAURICE:  Your Honour, if that is the proper principle,

then I can go no further but, we submit, that it is

not and that it is an aspect of double penalty.

The way in which that is taken into account is in

terms of the sentences imposed, not the way the

Court exercises its discretion at this stage of a

Crown appeal.

DAWSON J:  The reason is because there is a public aspect to

the matter which is not present in other cases.

Hawkins 28 10/8/90

MR MAURICE:  If that is the correct view, Your Honour, then

I can take it no further but I have made our point

as clear as I can in relation to that.

Your Honours, I think I have canvassed the matters that we would wish to cover.

DEANE J:  Mr Maurice, can I take you to page 65 - it is a

minor matter but should one, as it were, at line 5,

put in the agreed statement, that is that the head

sentence should be 20 years?

MR MAURICE:  No, Your Honour. The way it was discussed

between my learned friend and I - he having the
benefit of somebody who had took a note at the time

- is that the statement was made at approximately

the commencement of the paragraph beginning at the

bottom of page 64.

DEANE J: Well that achieves the same result. I was quite

puzzled as to where the 15 years had suddenly been

plucked from.

MR MAURICE:  It is puzzling, Your Honour. I have

endeavoured to explain it. It is, we would

suggest, an attempt to make an allowance for

remissions on head sentence.

DEANE J: Well now, if that is so, why under this agreement

that the minimum period becomes 8 years, does not

the head sentence become 12 years?

MR MAURICE: Well, Your Honour, if one follows Oti - and I

understand we are both agreed that it should be

followed, the principle laid there by the Court of

Criminal Appeal in Oti - in this case the

"additional term", as it is now described under

section 5(2) of the Sentencing Act should be one-

third of the minimum term.

DEANE J:  I see.

MR MAURICE:  The problem with this is that - and if you

follow that prescription, as Oti says you should -

you fix the minimum term first and then add an

additional term equal to one-third of the minimum

term.

DEANE J: Then, why does the head sentence stay at 15 years

instead of, as I said, becoming something like

12 years?

MR MAURICE:	It would become, Your Honour - if we were looking at one offence, it would be expressed this
way.  We fix a minimum term of 8 years and an
additional term of 2 years and eight months.

Hawkins 29 10/8/90

DEANE J: ·· So the head sentence will become 10 years

eight months?

MR MAURICE:  Yes, Your Honour.

DEANE J: But, as I followed what we were asked to do, the

head sentence would have remained unaltered?

MR MAURICE:	No, Your Honour.
DEANE J:	I misunderstood then.
MR MAURICE:	I do not know that my learned friend intended

to suggest that, Your Honour. The concession is

that the statutory formula about the additional

term should simply apply to the minimum of 8.

DEANE J:  If we were to do this, what should the head

sentence become?

MASON CJ:	10 years.
DEANE J:	10 years and eight months or 10 years?

MR MAURICE:  10 years and eight months, Your Honour. But,

it is, if I could say with respect, Your Honour,

inappropriate to be talking about head sentences

any more. One just talks about additional terms.

It could be achieved this way, Your Honour - - -

DEANE J: Except, the more difficult it gets the less reason

there is for us to save time and trouble by doing

it instead of letting it go back to the Court of

Criminal Appeal.

MR MAURICE:  I can suggest an easy course for doing it,

Your Honour, which I think my learned friend is in approximate agreement with. If I could just take

you to page 65, where the sentences for counts 2, 3
and 4 have been expressed, one ignored in relation
go all of those the terms of_ imprisonment imposed

and simply said, in relation to the first one, a

minimum term of three years with an additional term

of one year; the same for count two, a minimum

term of three years with an additional term of one

year; and for count three, a minimum term of two

years with an additional term of eight months.	And
those all to be cumulative.

It is also necessary, Your Honour, however

under the Sentencing Act, to express a release

date -

DEANE J:  It is becoming compelling that if we are not going

to interfere completely it should go back to the

Court of Criminal Appeal -

Hawkins 30 10/8/90

MR MAURICE:	Yes.
MASON CJ:	I must say for my part, Mr Maurice, I do not think we should engage in this exercise.

MR MAURICE: Well, the Court would find it - simply to pick

out the concession my learned friends proposed then
our submission would be, that the direction should

be that the matter go back to the Court of Criminal sentence on the footing that the non-parole period

should have been 14 years.

TOOHEY J: But does it require a direction from this Court?

MASON CJ: It does not require a direction from this Court;

the Court of Criminal Appeal indicated that it was

prepared to take action itself and what is more the

parties can initiate action under section 19 of the

Criminal Procedure Act, can they not?

MR MAURICE:  No, Your Honour, in my respectful submission,

section 19 does not cover this case, it is a very

narrow section, Your Honour. There is certainly

some ambiguity about it and may I say this,

Your Honour, when it was relisted before the Court

of Criminal Appeal it was not relisted for the

purpose of, as I read the rather elliptically

expressed remarks of judges who sat on that

occasion, it was not relisted for the purpose of

adjusting the minimum term so as to effect a proper

translation from a 14 year non-parole period, it

was relisted because of the problems of relating

section 4 of the Commonwealth Prisoners Act to the

Sentencing Act. And all that was proposed was to

elevate the state sentences to become the effective

sentences and to apply the statutory ratio - 3:4

ratio - so that what we would have got was a

minimum term of 10 years with an additional term

of - whatever that works out at - three years and

three months.

DEANE J: Well, if you failed on other matters would what

you would ask, if we were not going to get involved

in it, be that you be granted leave restricted to

enabling the matter to be remitted to the Court of

Criminal Appeal so that the sentence could be amended in accordance with the agreed adjustment?

MR MAURICE:	Yes, Your Honour.
DEANE J:	If the Court of Criminal Appeal saw fit to so to

do?

MR MAURICE:  Yes, Your Honour.

Hawkins 31 10/8/90

TOOHEY J:  In giving that answer, Mr Maurice, are you

implying that without a direction from this Court

the matter cannot get back to the Court of Criminal

Appeal?

MR MAURICE:	That would be my suggestion, Your Honour, yes. Section 19 of the Criminal Procedure Act - - -
TOOHEY J:	It is section 19, is it?
MR MAURICE:	I do not think it is, Your Honour -

section 24.

TOOHEY J:  My Act seems to come to a sudden stop at

section 18.

MASON CJ:  There are later sections but I cannot find

section 19 amongst them.

MR MAURICE:	It is section 24, Your Honour.
MASON CJ:	In what amending Act was that?
MR MAURICE:	It was previously section 19, Your Honour.
MR TOOMEY:	I think it was Act No 170 of 1989, Your Honour.

I am afraid I do not have the - those are proposed

amendments. It is still in fact section 19. It is

proposed to change the number. The service is

ahead of the law because the amending Act has not

yet been proclaimed, Your Honour, and it is still

in fact section 19.

MASON CJ:  In what particular statute do we find

section 19?

MR MAURICE:  It is still the Criminal Procedure Act.

MASON CJ: Of 1986?

MR MAURICE:	Yes, Your Honour.
MASON CJ:	Well, my copy seems to come to an end with

section 18.

MR TOOMEY:	May I hand up to Your Honours a copy?
MASON CJ:	Yes.
MR TOOMEY:	Your Honour the Chief Justice

might look at section 24 in the volume I hand up.

MASON CJ:	I have section 19 of 1988 now.
TOOHEY J:	I must say at a quick glance, Mr Toomey, Act

No 170 of 1989 does not seem to have much to do

with anything.

Hawkins 32 10/8/90

MR TOOMEY:  No, I may have misread it, Your Honour, on

the -

MASON CJ:	It is Act No 96 of 1988.
MR TOOMEY:	Yes, thank you.
MASON CJ:-	Yes, Mr Maurice.
MR MAURICE:	Well, it is my submission, Your Honour, where

it talks about correcting a penalty that is

contrary to law that would only permit in this

instance adjusting the head sentence, to use the
old language. It would not permit the reduction of
the minimum term. That is something that is only

done because of a line of authority subsequently

developed in the Court of Criminal Appeal about

how, in the exercise of discretion, these matters

should be dealt with. So it has to be made clear,

in our respectful submission, when the matter is

remitted back that it should be dealt with that

way. There is nothing further unless the

Court - - -

MASON CJ: Yes, thank you, Mr Maurice. Yes, Mr Toomey.

There are two aspects of the matter that you might

assist us on. The first is the significance of the

12 months delay - what do you have to say about

that? And then secondly, what do you wish to put

to us in terms of rectification of the order?

MR TOOMEY:  May it please Your Honours. Your Honours, in

respect of the 12 months delay, we have two things

to say. Their Honours considered it not only at

page 64 as my learned friend has taken you to, but

also at page 49 the learned presiding judge said at
line 22:

I would point out that the delay in bringing this matter to the court rests in no way with the Commonwealth Director of Public

Prosecutions, nor his State counterpart, but

was due entirely to the absence of the reasons

for sentence of the learned sentencing Judge

until about September of this year.

The important fact, however, is that the notice of appeal from the Commonwealth was

filed on 22 December 1988, just a short period

after the sentences were in fact imposed and

the respondent thus had notice that the

sentences might be increased.

That deals with the aspect of the hope of the

there respondent, here applicant, that indeed what

he would serve would be a non-parole period of six

Hawkins 33 10/8/90

years which would indeed have translated into three

years and five months in gaol. He knew a very

short time after the announcing of the sentence - I

think the sentence was pronounced on 2 December -

so less than three weeks after the pronouncing of
the sentence he knew that that sentence was

challenged by the Crown on the grounds of

inadequacy.

DEANE J: It is, none the less, not just a personal

consideration?

MR TOOMEY:  No, Your Honour.

DEANE J: It is a defect in the administration of justice

that should never occur and which will be

prejudicial to the accused or to the prisoner.

MR TOOMEY:  Yes. Your Honour, there are a number of

matters. We would submit that it is of some

importance that the delay was caused by the failure

of the trial judge to give his reasons. There is

one other factor which, remembering that this is an

application for special leave and it is

discretionary, the learned presiding judge and

those who sat with him were of the view that the
appropriate sentence to be served was 10 years. In

fact, the concession made by the Crown means that he will serve eight years and one would certainly

think that no more than that would have been taken

off in the appropriate sentence pronounced by

Their Honours.

DEANE J: Unless one were to take the view that in appeals

against sentence if the prosecution and the
administr·ation of justice cannot provide that
things be done properly the court should not

intervene.

MR TOOMEY:  Yes, Your Honour. I suppose one must make

allowance for personal frailty of primary judges

deal with the appeal because there was nothing to	and the simple fact is• that the system could not
deal with.

DEANE J: There comes a stage when that must be so; whether

that stage is reached in this case is a debatable

question, I suppose.

MR TOOMEY:	Yes, Your Honour, and may we say this with great respect, we would say that this is not the case for
special leave to be granted on that point. As to
what ought be done, Your Honours, we would submit
that, indeed, section 19 of the Criminal Procedure
Act does cover the point.

Hawkins 34 10/8/90

If the law, as pronounced in the State of New

South Wales, is that in resentencing, after the

Sentencing Act someone who has been sentenced primarily before the Sentencing Act, if the law is

that his minimum term pronounced under the

Sentencing Act shall be no more than he would have

served with remissions had he in the first instance been given the appropriate sentence the first time, then that is the law and the sentence imposed by

Mr Justice Lee and the judges who sat with him,

where they said 14 years was the appropriate non-
parole period in the first place, ought as a matter

of law, the common law expounded by the Court of

Criminal Appeal of New South Wales, to have been

eight years.

In other words, the Court has pronounced a

sentence contrary to law. Contrary to law can not

only mean contrary to statute, it is contrary to

law. The fact that this law was expounded after

the decision of the Court of Criminal Appeal in

this case makes no difference. As

Sir Garfield Barwick said, I think in Pusey v

Mt Isa Mines, the law is always the law, once it is

found that that is the law it always has been the

law, and so in this case with the pronunciation of

the sentence in the way it was, it was contrary to

law and can be corrected under section 19 of

Criminal Procedure Act, and we would urge

Your Honours to dismiss the application for special

leave and to remit the matter on the Crown's

undertaking to take the matter before the Court of

Criminal Appeal and to propose the substitution of

a minimum term of eight years.

TOOHEY J: Are you inviting us to remit the matter?

MR TOOMEY: For that - I think not - - -

DEANE J: Well, we would need to grant special leave to

allow that.

MR TOOMEY:  I think it is not necessary, with respect,

Your Honour. We will undertake to take it before

the Court of Criminal Appeal.

TOOHEY J:  I understand that, but inviting us to refuse the

application for special leave but at the same time

remit, you put us in something of a dilemma.

MR TOOMEY:  No, with respect, Your Honour, we do not invite

you to remit. We invite you to dismiss the

application for special leave on the Crown's

undertaking to take the matter back before the

Court of Criminal Appeal, under the Criminal

Procedure Act for the purpose of correcting the

sentence to what ought to have been done.

Hawkins 35 10/8/90

DAWSON J: And, of course, if the Crown did not do that the

applicant could do that anyway.

MR TOOMEY: That is so under section 19(2), Your Honour.

Either party may apply for it to be re-opened.	May
I point this out to Your Honours, that - - -

BRENNAN J:  Mr Toomey, there is a difficulty about that, is

there not and that is that if the Court of Criminal

Appeal was to take a narrow view of section 19 and

say that they had no jurisdiction to entertain it,
the applicant would then be in a position of having

burnt the bridges and ought the order of this Court

be, assuming that the Court is otherwise in favour

of the Crown, to adjourn the application for

special leave pending, or make the application.

MR TOOMEY:  Indeed, with great respect, that would plainly

be appropriate, Your Honour, and then if indeed the

Court of Criminal Appeal were prepared to deal with

it, we would ask Your Honours to dismiss the

application.

BRENNAN J: Yes.

MR TOOMEY:	May I say just one thing further, Your Honours, on why the matter should go back to the Court of
Criminal Appeal? The head sentence - I am sorry, I
am doing that which Mr Maurice correctly said one
ought not to do.  The Sentencing Act, Your Honours,
provides that there is a minimum term pronounced
and an additional term. The additional term may
not be more than one-third of the minimum term except in special circumstances. Now, it may be
that in.circumstances where $6.7 million dollars
was taken, none of it has been recovered, and
$1.2 million has not been accounted for, it may be that the Court of Criminal Appeal might wish to
impose a head sentence which imposes lengthy
supervision of the applicant either for purposes of aiding recovery or other purposes.

So, with great respect, we would adopt what

Your Honour Mr Justice Brennan has suggested and

submit that that would be the appropriate course

for this Court to follow.	May it please
Your Honours.

MASON CJ: Yes, Mr Toomey. Yes, Mr Maurice.

MR MAURICE: Nothing in reply, Your Honours.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 12.09 PM SHORT ADJOURNMENT

Hawkins	36	10/8/90
UPON RESUMING AT 12.19 PM:

MASON CJ: Except as to one matter to which we shall refer,

we are not persuaded that there was any error of

principle on the part of the Court of Criminal

Appeal and we would, but for that matter, refuse

the application for special leave to appeal.

However, it is common ground between the parties

that the Court of Criminal Appeal was in error in
fixing a minimum term of 10 years in view of a
minimum term of eight years.

We will grant special leave to appeal, allow the appeal, and remit the matter to the Court of

Criminal Appeal to vary the sentence imposed in

such manner as may be appropriate.

AT 12.20 PM THE MATTER WAS ADJOURNED SINE DIE

Hawkins 37 10/8/90