Ibrahim v The Queen M57/2001

[2002] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M57 of 2001

B e t w e e n -

CHAIRI IBRAHIM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 10.14 AM

Copyright in the High Court of Australia

MR J.H. KENNAN, SC:   May it please the Court, I appear with my learned junior, MR M.C. FISHER, for the applicant.  (instructed by Brendan Wilkinson)

MR D.J. LANE:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Kennan.

MR KENNAN:   If your Honour Court pleases.  In our submission, the special leave application should be granted in this case because of the general or public importance of a number of issues.  First, the issue of the circumstances in which the Court of Appeal can use its powers under section 568(4) of the Crimes Act to increase the sentence in the absence of an appeal by the DPP against leniency.  The matter was referred to in Neale’s Case.

GLEESON CJ:   When you say “increase a sentence” Mr Kennan, the effective sentence that was imposed on your client, at first instance, as compared with the effective sentence imposed following the appeal was what?  What was the difference?

MR KENNAN:   In case it was four – effectively four with the three, your Honour.

GLEESON CJ:   Why do you say “increase”?

MR KENNAN:   Because, your Honour, the applicant was in a very strong position to have the sentence reduced by reason of the very considerable error made by the sentencing judge in the County Court on count 4, that is, he mistook the penalty and thought that the penalty was 25 years instead of 2 years.  The applicant, therefore, would ordinarily have expected a significant reduction in ‑ ‑ ‑

HAYNE J:   Why?  Why could there not have been a degree of tailoring of the individual sentences where the prisoner had been convicted or pleaded to a number of offences?

MR KENNAN:   This was not such a case, your Honour.  The sentence imposed by the learned trial judge on the first three counts was a sentence of three years and it was the position before the learned sentencing judge, both of the prosecution and the defence, that they should be all concurrent.  That was a matter that was never in question, and when his Honour came to impose the sentence on count 4, mistaking the maximum penalty, 2 years for 25 years, he imposed a sentence of 3 years and then tailored that to meet the overall circumstances to produce a sentence of 4 with the 3, but it was not a case where there was compression, as it were, of the sentences on counts 1 to 3 to give a shorter sentence on those counts than would otherwise have occurred.

In those circumstances, given the significance of the error on count 4, the applicant was in a position where he was approaching the court in circumstances where he would ordinarily have expected a significant reduction in respect of count 4, the sentences on counts 1 to 3 not being in contention and, indeed, what the Court of Appeal did in respect of this matter was to accept the overall Crown submission in the Court of Appeal that the total sentence should be left as it were and they made an error, in our submission, in approaching the matter in this way that they then worked out a device, in effect, to get to the total sentence of 4 with the 3 by changing the concurrency orders on counts 1 to 3.

Now, those concurrency orders on counts 1 to 3 had never previously been in issue and, indeed, it is ironic that the court changed the concurrency on count 1 and ordered that it commence 12 months later when the facts on counts 1 and 2 were precisely the same, they related to a quantity of drugs in the same satchel on the same date and there was absolutely no basis whatsoever for changing the concurrency in respect of those counts.  Concurrency had never been in issue before the sentencing judge in the County Court.  The Crown, at that stage, had suggested that it was appropriate to make the sentences on counts 1 to 3 concurrent.  On the hearing of the appeal the Crown did not suggest that that concurrency be altered, it was never an issue, and in altering that concurrency the Court of Appeal gave no reason for doing so, except that it appeared to have decided at the outset that it would not disturb the total sentence.

What we would say, your Honours, is that it does not matter, in a sense, whether the prisoner’s liberty is threatened or changed by an increase in the total sentence or that his liberty is threatened by an action of the Court of Appeal in relation to some counts that would otherwise deprive him of the reduction in sentence that he was entitled to in respect of the error made on the fourth count.  Either way, the prisoner has lost liberty that he expected to have and his ‑ ‑ ‑

HAYNE J:   Let us just unpick that a bit.  The primary sentencing judge made an error.  That seems to be the premise for the argument, does it not?

MR KENNAN:   On one count, your Honour.

HAYNE J:   Yes.  Did that not mean that the Court of Appeal was bound to set aside the sentences, all of the sentences, and re‑sentence the accused again?

MR KENNAN:   Not necessarily, your Honour.  The Court of Appeal, in our submission, in dealing with an appeal against severity and having found that there was a incontrovertible point in favour of the prisoner in relation in relation to severity on one count was not entitled to increase the effective sentences on the other counts unless the court found error in those other counts.  The court found no error in the sentencing of those other counts.

HAYNE J:   The Court of Appeal at page 84 in paragraph 5 notes that:

It was agreed -

presumably by both sides ‑

that in those circumstances, the whole of the sentencing exercise of the learned judge should be set aside, including the sentences on counts 1 to 3 ‑ ‑ ‑

MR KENNAN:   That was a statement made, your Honour, by the Court of Appeal after reading the written submissions and after reading the report of the sentencing judge.  It was not a statement made after hearing from counsel from each side and reaching an agreement on the spot as it may appear to indicate.

GLEESON CJ:   Mr Kennan, people keep telling us about the principle of totality.  Bearing in mind the principle of totality, how could the error in relation to count 4 have failed to be reflected in the results of counts 1 to 3?

MR KENNAN:   Because, your Honour, the principle of totality really relates to issues where a court has gone through and on a count‑by‑count basis passed a series of sentence, each properly calculated for the offence which the sentences were imposed, and then review the aggregate sentence and consider whether the aggregate is just or appropriate.  I am referring to what your Honour said in McL’s Case at paragraph 15, referring to the principle from Thomas’s Principles of Sentencing.

GLEESON CJ:   Before the primary judge settled on a final effective sentence in the present case, it was the judge’s obligation not just to get out a calculator and total up the numbers that had already been reached but to review the whole of them.

MR KENNAN:   Yes, your Honour, but the correct approach was to consider appropriate sentences in respect to each of the counts, then to apply the principle of totality by reviewing the aggregate sentence and to determine whether the aggregate was “just and appropriate”.  That is a confusion, with respect, with the phrase “the total criminality involved”.  What has happened here, with respect, your Honour, is the two concepts have effectively been run together.  The principle of totality applies where there has been a series of offences and where, if an appropriate sentence is passed for each offence without considering the aggregate, in the total sentence reached may be “just and appropriate” and in some cases – McL, I think, was one of them – at first instance, the principle of totality may lead to a compression of some of the individual sentences that would not otherwise have occurred, but this is not such a case.

What the court did here was to refer to a total of criminality which is another concept altogether.  It did not, as it was required, in our submission, find any fault with the manner in which the judge had fixed the penalties on counts 1, 2 and 3, nor was it a case where the judge or the Court of Appeal found that the judge had applied the principle of totality to compress those sentences so that if there was a change on count 4 there might effectively then be an expansion as a result of the absence of the compression.  That was the case in McL’s Case where a number of convictions were quashed and the end sentence ended up exactly the same, 12 with a 10, as in the first case, despite some of the convictions having been quashed, but in this case, your Honour, there is no suggestion that on counts 1 to 3 that they had been any other than appropriate sentences for those counts and it was not a case where the principle of totality had compressed those.

What had happened was in relation to count 4 the sentence was another three years and his Honour dealt with that in finding that that might lead to too long a sentence by making part of that concurrent with the sentences on counts 1 to 3.  Now, that falls away when it is then seen that there was this error of a magnitude of 25 to 2 on count 4 which then ought to have led to a reduction in sentence on that count and the sentences on counts 1 to 3 be left alone.

It is to be noted, if the Court pleases, that there were appeals on foot in this case against all of the counts, that is, there were appeals against counts 1 to 3 on the basis of manifest excess and there was an appeal on count 4 on which leave was granted in relation to the obvious sentencing error made.  But in circumstances where, if the Court pleases, there was absolutely no question really raised by the sentencing judge or even in the written submissions of the Crown before the Court of Appeal that there was any inadequacy of the sentences on counts 1 to 3, nor was is suggested to the Court of Appeal that the principle of totality had been applied to compress those sentences, it was then an extraordinary result, if we may say so, your Honour, for the court to find that there was this error on count 4 and use effectively that incontrovertible point of the prisoner, in the prisoner’s favour, which would ordinarily have entitled him to liberty that he did not otherwise have, use that incontrovertible point against him by then saying, “Well, because you have got a strong point on that we are going to go behind it, look at counts 1 to 3 and without notice to you and without giving reasons, increase the sentences on counts 1 to 3, even though those sentences and the adequacy of those sentences had never been in dispute”.

It is for that reason, your Honours, that we say that there were – the sentence on counts 1 to 3 looked at were in fact increased by 12 months. There was nothing, in the circumstances of this case, that would lead a court to the conclusion, or ought to have led the court to a conclusion that it fell within the category of case referred to in Neal’s Case.  That was a very special case, or a rare case.  There ought to have been notice by the Court of Appeal to the applicant that the question of the concurrency on counts 1 to 3 was in issue.

It is the same position in that respect of McL’s Case where this Court accepted that procedural fairness apply, even though the end total sentence was the same in both cases.  The Court found that procedural fairness ought to have been given and in fact was given in that case, and we would say in this case we were denied the opportunity to argue the point about concurrency and if the point on concurrency is looked at, what the court did in segregating out the sentence on counts 1 to 2, there is no legal basis, we would say, for that having occurred.  We were denied, by the action of the court, the opportunity to argue that point. 

We also say, your Honours, as a matter of principle ‑ and there are a number of cases, I think, including Dinsdale’s Case, which your Honours would be familiar with, recently, going back to Griffiths Case, a judgment of Chief Justice Barwick, that the Court of Appeal must identify in exercising this or equivalent sections, error before changing the sentence.  Now, in one sense it is true that error was identified but it was an error in the prisoner’s favour in respect to count 4.

What the court did was to use that to attack the whole sentence and go to counts 1 to 3 and give a sentence on those counts adverse to the prisoner and, by using that approach, denied the prisoner of the reduction in sentence that he would otherwise have been entitled to expect by reason of having been sentenced on the basis of a maxim penalty of 25 years instead of a maximum penalty of 2 years.  We say that the approach of the court on the basis of taking it and looking at total criminality and fixing a total sentence as a first step and then revisiting individual counts and concurrency is the wrong approach and, indeed, your Honour the learned Chief Justice would be aware, of course, of what your Honour said in McL’s Case at paragraph 32 about the absence of general or global sentences in the case of multiple offences being virtually unknown in Victoria and may not indeed be permissible.

We say that was also a serious error in the approach and contrary to the principles that have been expounded by this Court.  We say that of course the traditional standards that have been referred in a number of cases by this Court in the administration of the criminal justice that the notions of fairness and decency underlie the common law principle against double jeopardy underpin this argument in the prisoner being denied the opportunity to argue in relation to the appropriateness of the concurrency and in the prisoner effectively having his sentence remain the same when he was otherwise entitled to a reduction by reason of an effective increase on counts 1 to 3.

We say that, in addition, if the sentence on count 4 that was applied by the Court of Appeal is looked at by itself, that that constitutes a gross violation of sentencing principle because we say that that was a sentence of 12 months.  The maximum penalty was 2 years; that I was conceded under section 16G of the Commonwealth Act in the hearing before the sentencing judge in the County Court by the Crown, that the appropriate reduction is in the order of one‑third ‑ this being a State where there are no remissions ‑ that giving an effective maximum sentence of 16 months and to impose a sentence of 12 months on what was a first offender without either the court or the trial judge having found any aggravating circumstances in either the nature of the offence or the circumstances of the offender is a gross violation of sentencing principle, that is, he ended up with 75 per cent of the maximum when we say that if proper sentencing principles had have been applied it may well be, as was submitted to the court, that this was not a case where any period of imprisonment at all might have been imposed if that count was looked at by itself, or if there was, it was to be a small amount.

On that basis, if the Court pleases, he was therefore entitled to a reduction of 12 months, or thereabouts, in his sentence and the actions of the court in increasing the sentences on counts 1 to 3, effectively, by varying the concurrency without reason and without warning deprived him of that.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Kennan.  We not need to hear you, Mr Lane.

The Court is of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal in this matter, and the application is dismissed.

AT 10.33 AM THE MATTER WAS CONCLUDED