FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No S142/2010
ANTHONY JOSEPH LUIS HILI APPLICANT
AND
THE QUEEN RESPONDENT
Matter No S143/2010
GLYN MORGAN JONES APPLICANT
AND
THE QUEEN RESPONDENT
Hili v The Queen Jones v The Queen [2010] HCA 45 8 December 2010 S142/2010 & S143/2010
ORDER
Matter No S142/2010
1.Special leave to appeal granted on grounds one to six inclusive of the draft notice of appeal.
2. Appeal treated as instituted and heard instanter, and dismissed.
Matter No S143/2010
1.Special leave to appeal granted on grounds one to six inclusive of the draft notice of appeal, but refused on ground seven.
2. Appeal treated as instituted and heard instanter, and dismissed.
On appeal from the Supreme Court of New South Wales
Representation
J T Svehla with R J Webb for the applicants in both matters (instructed by Snelgroves)
P W Neil SC for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hili v The Queen Jones v The Queen
Criminal law – Sentence – Principles – Federal offences – Applicants pleaded guilty to federal offences – Prosecution successfully appealed on ground of manifest inadequacy against head sentences and recognizance release orders imposed by sentencing judge – Court of Criminal Appeal stated that "the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66% [of head sentence]" – Whether any judicially determined "norm" for ratio between time to be served in custody by federal offender and length of head sentence imposed – How consistency in federal sentencing to be achieved – Whether sentences imposed by sentencing judge manifestly inadequate – Whether Court of Criminal Appeal's reasons sufficient.
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The applicants seek special leave to appeal against sentences imposed by the Court of Criminal Appeal of the Supreme Court of New South Wales, following a successful prosecution appeal against sentences that had been imposed on them in the District Court of New South Wales. The applicants had pleaded guilty, in the District Court, to offences committed in evading income taxation.
Proceedings and sentences in the District Court
Mr Hili pleaded guilty to one charge of obtaining a financial advantage by deception from a Commonwealth entity (the Commissioner of Taxation) contrary to s 134.2(1) of the Criminal Code Act1995 (Cth) ("the Code"). Mr Jones pleaded guilty to three charges: one of defrauding the Commonwealth contrary to s 29D of the Crimes Act1914 (Cth) ("the Crimes Act"), one of obtaining a financial advantage by deception from a Commonwealth entity (the Commissioner of Taxation) contrary to s 134.2(1) of the Code, and one of money laundering contrary to s 400.4(1) of the Code.
The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hili v The Queen [2010] HCA 45
Case
[2010] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by the applicants, Hili and others, against decisions of the Court of Criminal Appeal of New South Wales. The applicants had pleaded guilty to federal offences. The prosecution had successfully appealed to the Court of Criminal Appeal on the ground of manifest inadequacy concerning the head sentences and recognizance release orders imposed by the sentencing judge.
The High Court was required to determine whether there exists a judicially determined "norm" for the ratio between the period of mandatory imprisonment to be served by a federal offender and the length of the head sentence. It also considered how consistency in federal sentencing is to be achieved, and whether the sentences imposed by the sentencing judge were indeed manifestly inadequate, as found by the Court of Criminal Appeal. The sufficiency of the Court of Criminal Appeal's reasons was also a point of contention.
The High Court ultimately dismissed the appeals. While acknowledging the Court of Criminal Appeal's statement regarding a "norm" for mandatory imprisonment between 60% and 66% of the head sentence, the High Court did not endorse this as a rigid rule. Instead, the Court emphasised that sentencing involves a complex exercise of discretion, and the pursuit of consistency in federal sentencing requires careful consideration of all relevant factors in each case, rather than the application of fixed mathematical ratios. The Court found no error in the Court of Criminal Appeal's conclusion that the original sentences were manifestly inadequate.
Orders
Orders of the court
Matter No S142/2010
1. Special leave to appeal granted on grounds one to six inclusive of the draft notice of appeal.
2. Appeal treated as instituted and heard instanter, and dismissed.
Matter No S143/2010
1. Special leave to appeal granted on grounds one to six inclusive of the draft notice of appeal, but refused on ground seven.
2. Appeal treated as instituted and heard instanter, and dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J