Imisides v The Queen

[1990] HCATrans 228

"'-l AUSTRALIA i.:- .J .>},.~ >'~-««'--'-~

--

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S24 of 1990

B e t w e e n -

KERRY IMISIDES

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 1990, AT 11.22 AM

Copyright in the High Court of Australia

Imisides 1 5/10/90

MR J.W. BLACK, QC: If the Court pleases, I appear for the

applicant, Your Honours, with my learned friend,

MR J.C. NICHOLSON. (instructed by M. Richardson,

Director, Legal Aid Commission of New South Wales)

MASON CJ: Yes, Mr Black.

MR BLACK:  Your Honours, we distributed the submissions

yesterday.	I would have hoped they have reached
Your Honours.

MASON CJ:	Ms Payne, you are appearing for the respondent.
MS D.PAYNE:	I appear for the Crown in this matter.

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

Prosecutions)

MASON CJ:  You distributed the bundle of submissions

yesterday, did you?

MR BLACK:  Yes we did.

MASON CJ: We do not appear to have them. Well, some of us

do.

MR BLACK:  I have three spare. May I hand those us.

MASON CJ:  If you hand one in that will do, Mr Black.

MR BLACK: There are two main differences in this case,

Your Honours. The first hurdle I have to get over

is that the application is out of time so I have to

seek Your Honours' leave to allow me to pursue it.

The grounds for the application for extension of

time are.at pages 96 to 98 of the appeal book.	In
essence, they amount to no fault at all on behalf
of the applicant, but delays in the system upon
which he is dependent for legal assistance.

McHUGH J: There is no explanation, is there, in the

affidavit, as to what happened in the four-month

period between the handing down of the judgment and

a copy being sent to the Legal - - -

MR BLACK:  No. I understand the gentleman referred to in

paragraph 3 no longer works for the Commission.	He
does not work in that department.	No, there is
not.

McHUGH J:	The judgment was given on 6 April 1989?
MR BLACK:	Yes, and the written judgment was received in

August.

TOOHEY J: That is rather ambiguous, is it not? It arises

out of the use of the passive rather than the

active?

Imisides 2 5/10/90

MR BLACK:  Yes. That is right. 6 April was the

hearing and - - -

TOOHEY J: It is not apparent whether it was sought before

then, or was sought and it was not available or

what the reason was for the delay.

MR BLACK:  It is not in the affidavits, Your Honours.

MASON CJ: Well, is it an inadequate explanation?

MR BLACK:  Well, Your Honours, I am faced with this

affidavit and I am not of the view I am entitled to

give evidence to Your Honours, even if I had it

available. I can make inquiries - 28 April the

copy of the judgment was requested, according to my

instructing solicitor's file.

MASON CJ:  Well is the suggestion that although it was

requested on that date for reasons beyond the

control of the commission it was not received until

11 August?

MR BLACK:	Yes.
MASON CJ:	That there was a delay on the part of the court.
MR BLACK:	Or on transcribing or having the judgment

approved, I expect.

MASON CJ:  Is that a common problem in terms of the

availability of judgments of the Court of Criminal

Appeal.

MR BLACK:	I am told it is.
MASON CJ:	Even in cases where it is suggested that a copy

of the judgment is required for the purposes of

appeal?

MR BLACK:  I am getting clear messages the situation is

considerably improved but I think, despite that, I

am sure the purpose was made known.

McHUGH J:  Well, when I was in the Supreme Court of New

South Wales the judgments of the Court of Criminal

Appeal used to be typed automatically and they were

circulated to all the judges. Is that still the

situation?

MR BLACK:	I cannot answer for that, Your Honour.
MASON CJ:	It only goes to show what a great loss has been

suffered by the Court of Appeal.

Imisides	5/10/90
MR BLACK:	The letter of request is dated 28 April

requesting the judgment. There is a reminder sent

on 17 July to the registry saying:

Please note, this judgment is required for the

purposes of a High Court appeal. Would you

kindly supply a copy of that appeal urgently.

I have those documents. So efforts were being made

by Mr Wallach, but I cannot really help further on

that. It is an unfortunate situation but all I can
say is that it is in no way the applicant's fault

and he is the one, of course, who is suffering.

MASON CJ:  Yes. Well you may as well proceed with your

application at this stage.

MR BLACK:  Thank you. The next thing I have to say is

that this is not a re T point. Your Honours, the

basic ground upon which special leave is sought on

this matter - as I say, it is not a re T point -

what we say here is that no justification at all

emerges from the Court of Appeal judgment as to

demonstrating where the trial judge fell into

error. We are up against their assertion that they considered the sentence to be manifestly inadequate but the result of their decision was to increase

the applicant's sentence four and a half times and

if I may use the same circular argument as I did

before, that form of increase demonstrates

something has gone amiss, we respectfully say, with

the Court of Appeal.

TOOHEY J:  You are now comparing, Mr Black, non-parole

periods, are you, and not head sentences?

MR BLACK:  What happened here was that both the sentence

and the appeal, yes, Your Honour, was before the

Sentencing Act.

McHUGH J:  Well, they doubled the head sentence and

increased the non-parole period four and a half

times?

MR BLACK:  Yes, that is right. The original sentence was

on 15 December 1988.	The pleas have been guilty
and there were a number of armed robberies.	The

details of those are set out at pages 14 to 16 of

the appeal book. They are quite briefly set out

and the relevant aspect perhaps is at page 15

line 12:

During the commission of these offences the

accused menaced staff ..... either with a

replica pistol and knife ..... demand for money

was made.

Imisides 4 5/10/90

All these offences, plus a number of others,

related to financing a drug habit.

The sentencing process in front of the trial

judge took a long time. There was a lot of

evidence before His Honour and His Honour, amongst

other things, invited submissions on the effect of

the amendments to the Probation and Parole Act

which had come into force and affected some of the

offences and those submission he received and they

do form the basis of one aspect of the appeal.

But, after all that - and it starts at page 55 -

His Honour passes sentence and it goes through to

page 59. It is all very detailed and in close type

and may I just highlight some of the passages

there.

At line 50, on page 55, His Honour notes that:

but for -

the applicant's -

frank and full disclosures to the police your
commission of the other thirteen offences

would have taken a considerable time for the

police to establish.

At page 56, line 46, His Honour says:

That these are serious offences is a fact

which requires no statement of emphasis by

me -

and he then goes on to describe how he brought fear

and terror to the victims; and then some evidence

in mitigation -

the offences do indicate a degree of planning
but their facts and circumstances do not

indicate that they were planned with that -

high -

degree of skill ..... which a high degree of

criminality would reflect.

McHUGH J: Well, he apparently held up the Cheapa Service

Stations on three separate occasions and another

company on two separate occasions.

MR BLACK:	Yes, and all in a comparative short period of time. At page 57, the bottom line, His Honour
refers to the applicant's oral evidence:
Imisides	5/10/90

I note expressly that you are sincerely

contrite as to your past -

and over the page, page 58, the second line -

I found you to be sincere -

and he goes on for the next few lines saying, it -

is a difficult task -

when somebody says that they are sorry but, he

says -

I am satisfied that my appraisal is correct.

And then, at line 13, he says:

Sentencing involves proper consideration of

the elements of punishment, deterrence and

rehabilitation -

and then he goes on to say that there is a

balancing exercise between them. And, at line 17,

he said -

Here the subjective factors are of significant

weight -

and then he goes on to assess whether he is

under the amendments to the Sentencing and Parole	entitled not to impose the three-quarter period course. And at the foot of the page, page 58,
line SO, he specifies the non-parole -

period of two years, my reasons for so doing

appear earlier in this judgment and to the

extent that they require summation may be

summarised by the expression significant

subjective factors including rehabilitation.

Then he goes on to pass the sentence and, again,

is a
there notice from the Director of Public inadequate. And the Court of Appeal deal with this

at pages 63 to 71.

We respectfully say that, looking at the

judgment, there are a number of errors on their

part. The start of the judgment sets out the facts

and deals with the background and matters of

psychological evidence and the respondent giving

evidence. Then the arguments are set out, starting

at page 66. Then, at page 67, my learned junior

had sought to argue that the Court of Appeal in

Griffiths were wrong. That was where the Court of

Imisides 6 5/10/90

Appeal, as I understand it, had basically said,

under the new provisions of the Parole Act

three-quarters had to be passed for the serious

offences in the schedule unless there were separate

relevant factors which had not already been taken

into account or totally unusual or exceptional

factors justifying a departure from that.

Your Honours will remember that in your

decision in Griffiths you decided that that was not

the correct approach; that the accumulative factors

could be looked at again to see if it justified

departing from the three-quarters.

It is interesting to note that, at page 67,

line 18, having refused Mr Nicholson leave to argue

that Griffiths was wrongly decided in the Court of

Appeal, Mr Justice Yeldham says:

In any event, I would respectfully express my

entire agreement with the decision in that

case -

which is an indication, perhaps, as to the approach

of the Court of Appeal. Then, there is a

reference, it is true to say, at page 68, to the

fact that the applicant had to serve his time in

protective custody. The reason for that was, he

had been in a position at a premise known as

Odyssey House, a position of some authority, and

that there were other former inmates of Odyssey

House in custody and he was at risk from them.

At page 69 we get to what the Court of Appeal

is saying:

I am clearly of the opinion that the sentences

imposed and the non-parole period were

manifestly inadequate -

and we should interfere. He describes imposing:

head sentences of six years and a non-parole

period of two years for fourteen serious

offences ..... to be weakly merciful, and such

sentence undoubtedly fails to reflect any

element of deterrence, to which the judge

makes but passing reference -

I have taken Your Honours to where he does

expressly direct himself about the factors to bear

in mind. But, this judgment goes on about

deterrence because at line 18, on the same page,

this passage appears:

The current spate of such robberies, many of

them committed, as in this case, by persons

Imisides	5/10/90 with drug problems, can only be kept in check if judges of the District Court in particular
impose a substantial custodial sentence.

Well now; where the evidence was for that

conclusion there is no indication at all and it is

totally contrary to a passage in the 1975 case of

Griffiths in the judgment of His Honour

Mr Justice Jacobs. If I may just remind

Your Honours of that. It is to be found at

137 CLR. This is one of the cases about the

general powers of the Court of Appeal to interfere

with trial judges.	I go to page 327 at about
point 3:

The deterrent to an increased volume of

serious crime is not so much heavier sentences
as the impression on the minds of those who

are persisting in a course of crime that

detection is likely and punishment will be

certain. The first of these factors is not

within the control of the courts; the second

is. Consistency and certainty of sentence

must be the aim. I entirely agree with the

statement at p.6 of the Report to which I have

already referred -

I think that was a report from America -

that where equal treatment (i.e. consistency

in sentencing) is not the rule a potential

offender is encouraged to play the odds,
believing that he will be among those who

escape serious sanction. Certainty of

punishment is more important than increasingly

heavy punishment.

That, of course, was the case which came to be

known as the Griffiths bond, I understand. The

trial judge had imposed a bond on an "old lag", if

I may call him that. The Court of Appeal - - -

McHUGH J: There is surely no doubt that particularly in

cases of robbery heavy sentences do have a

deterrent effect. Twenty-five years ago, because

of the heavy sentences for safe breaking, quite a

number of professional criminals moved out of that

class into shop-lifting where they used to get

12 months.

MR BLACK:  Yes, I accept it is a factor, but it is not as is

put here the only factor. All I am trying to

demonstrate is that His Honour Judge Urquhart bore

all of the various balancing exercises in mind,

whereas the Court of Appeal are expressly

concentrating on just one.

Imisides 5/10/90

McHUGH J: Well, do you say anything about the preceding

sentence, Mr Black, that the sentences and
non-parole period in this case was significantly
out of step with those ordinarily imposed for that

type of offence?

MR BLACK:  No, I cannot say very much about that because

they are in a better position to say that than I

am.

GAUDRON J: But their being out of step was in a particular

context, was it not, where probation was

conditioned upon undertaking what is, in effect, a

programme that restricts your freedom, and in

circumstances where a Griffiths-type bond was to be

imposed so that he was at risk of further prison

sentence in any situation iri which he did anything
other than comply strictly with the terms of the

probation and parole at Odyssey House.

MR BLACK:	Yes, there were significant restraining factors in the sentence passed here. That may, of course,
have had some reference to - the only way in which
they begin to try and say there was error is at line 12 or 13 where they say His Honour did not
refer to the fact that he was in breach of -

a recognisance to be of good behaviour -

did not even merit a mention. Now that, of course,

is correct. His Honour did not mention it. It was

before His Honour, but in any event he is liable to

a separate penalty in respect of that.

So that was picked out. and over-emphasized.

But they go on to make some further mistakes. At

line 26:

Here, as the Judge himself said, the offences

were carefully planned.

Well, His Honour did not say that, and I have

already referred you to page 56 where His Honour

had discussed that -

a degree of planning, but not with that degree

of skill.

So it is not fair to say it was carefully planned.

There were a short period, that is right, between

December and February. And then at page 70 we

again have a reference which we respectfully say is

a token reference -

the sentences which this Court should now

pass ..... will necessarily be lower than those

Imisides 9 5/10/90

which should have been imposed ..... in the

first place.

So therefore, they say, they are not passing the

full sentence, and we bear in mind that what they
did was 12 years with nine non-parole. So what

they are saying the appropriate sentence should

have been is very difficult.

They then go on to say, at page 70, and this starts at line 20, that Probation and Parole

Amendment Act, and that is one that introduced the

three quarters requirement, is not relevant, in our

view, we do not think it matters and then they go

on on to say but in any event we are going to apply

the three-quarters rule. They go over the
three-quarters and my learned junior says that he

gets 90 per cent effective. So they are - - -

McHUGH J: It did not apply to three counts did, it?

MR BLACK:  It did not apply to all the offences, it only applied to the first two counts and the last.

MCHUGH J: Yes.

MR BLACK:  But, in any event, at the end of the day he has

to serve three-quarters of the total sentence. Had

he had three-quarters of the ones to which the Act

did apply he would have got less than that because
he got a total of 10 years for the ones to which

the Act did apply.

So, that is the situation then, and, with

respect, it is very hard to find any constructive

finding in the Court of Appeal where the learned

trial judge who had sat there and listened to all

the evidence; made express findings of fact in

favour of the appellant; balanced up the whole

range of factors that he had to consider; apart

from saying he forgot to mention he was in breach

of a bond they cannot demonstrate any error and

then they say, "Ah but we think it is manifestly

inadequate".	Then we look at what they did and to
come out - - -

GAUDRON J: But does that not mean, in the circumstances of

this case, that His Honour should not - His Honour

the sentencing judge - should not have placed

emphasis on rehabilitation - - -

MR BLACK:	Yes.
GAUDRON J:	- - - by the bonding to Odyssey House, as it

were, and the Griffiths bond.

Imisides 10 5/10/90

MR BLACK:  Yes, well that is the effect of - - -

GAUDRON J: In the circumstances in this case it could mean

nothing other than that rehabilitiation should have

been put to one side.

MR BLACK:  Yes, should have been ignored and that is why I

quoted at some length, it was -

GAUDRON J: Because there is no basis on which you can say

what would be the final sentence if the bond were

breached?

MR BLACK:  No. But that is why I spent some time,

Your Honour, in drawing your attention to what they

said about deterrence. Their whole judgment is:

it does not matter about any other factors in these

sort of cases, robbers must be deterred. And I put

it as baldly as that and was not a fair approach

here and was unfair, particularly to the learned

trial judge, who had gone to such trouble and care

to assess what was before him and invite

submissions on the approach he should take to the

Probation and Parole Act and goes to the trouble of setting out several pages of judgment that express findings directing himself properly.

The Court of Appeal, really, they do have to

do better, with respect, than they did and again I

use my circular argument to end up by resulting

with a sentence four and a half times as much

demonstrates that they themselves went into error

and I would - - -

DAWSON J:  I do not understand that, it may just demonstrate

that the sentence below was four and a half times

too little.

MR BLACK: Well, I would follow that that is the risk of a

circular argument, Your Honour, but it is the

best - - -

DAWSON J:  But you have really got to show that it is out of

step and you do not do that.

MR BLACK:	I do -
DAWSON J:	You do not.
MR BLACK:	- - - because they have totally ignored highly

relevant factors in sentencing and expressly do so,

with respect, in their judgment. That is where

they went into error.

DAWSON J: But you do not seek to dispute the sentence

appearing on page 69 that:

Imisides 11 5/10/90

The sentence and the non-parole period were

significantly out of step with those which

this court in many cases and over a number of years has said should be imposed for multiple

crimes of armed robbery?

MR BLACK:  Yes, I dispute it to the extent that it applies

to every offender. If there are circumstances

particular to any particular offender, that does

not mean that they have to get the tariff, with

respect.

DAWSON J: Let us get this clear: you are not disputing

that this case is out of step with the tariff, is

that right?

MR BLACK:  I am not in a position to do that, no. I do not

know whether my learned junior's voice is carrying,
his experience being greater, but he says there

have been sentences of this quantity of offences

with a 4 year non-parole period approved. So this

would be below that and, of course, there will be

much higher sentences. But what we say is that the general tariff irrespective of what special facts

you have".

DAWSON J: They do not, you see, and this is the point:

there is little to be gained from saying that it is

so many times more than the sentence below because

once it is established the sentence below is

manifestly inadequate then, of course, it is within
the discretion of the Court of Appeal to impose
what sentence it thinks appropriate. And if it
places different emphasizes on different aspects of

the case, well, that is its prerogative to do so in

the exercise of its discretion and, quite

obviously, it thought that in this case the element of deterrence was very much more important than the question of rehabilitation.

MR BLACK: All I can say, with respect, is that if they

cannot demonstrate any significant error in

approach by the trial judge, trial judges might be

forgiven for saying, "Well, why should we bother?".

But that is what their job is.

DAWSON J: That is not the point I was making, that once the

sentence below is inadequate then it is within the

discretion of the Court of Appeal to impose it.

It may well do and is entitled to regard some

matters as more important and some as less

important then did the trial judge. It is not a

question of adjusting the trial judge's sentence by

taking particular elements in it.

Imisides 12 5/10/90

MR BLACK:  What we say here is that they have totally

ignored the express findings of the trial judge of

a subjective nature.

GAUDRON J: The question is: can it be said to be

manifestly inadequate, really, in light of those

subjective findings and the tailoring of a

punishment to the particular assessment of the

individual?

MR BLACK:  Your Honour puts it much clearer than I do. That

is what I am trying to say. And what I am trying

to say is, "All right, armed robbers on the whole

get more but that does not mean that this one

didn't get a proper sentence in the first

instance."

DAWSON J:  Of course, if it is not manifestly inadequate

that is another - - -

MR BLACK: That is what I say, that they have no right to

say, in this case, it was manifestly inadequate.

DAWSON J: That is different.

MR BLACK:  But that is what I am trying to say. An

examination of all the factors there against a
careful judgment - I am repeating myself - either

that appeals to the Court or it does not.	Those
are really our submissions on that.	And added to

their error in trying to maintain that Griffiths on

appeal was correct. Those are my submission,

Your Honours.

MASON CJ: Yes, thank you, Mr Black. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 11.54 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:
MASON CJ: The Court need not trouble you, Ms Payne.	By

majority the Court is of opinion that this case
does not raise a question of general principle such
as would warrant the grant of special leave to

appeal. The application is therefore refused.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

Imisides 13 5/10/90