Jackson v The Queen

[1988] HCATrans 203

HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 1988

B e t w e e n -

REX FREDERICK JACKSON

Applicant

and

THE QU:C:EN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

Jackson

BRENNAN J

DAWSON J

TOOHEY .J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 SEPTEMBER 1988, AT 10. 16 AM

Copyright in the High Court of Australia

C2Tl/l/HS 1 9/9/88

MR G. JAMES, QC:  May it please the Court, in this

application I appear with my learned friends,

MR M. WEINBERG, QC and MR T. BUDDIN.

(instructed by W.G. McNally & Co.)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR R. KELEMAN, for the Crown.

(instructed by Solicitor for Public Prosecutions)

MASON CJ:	Yes, Mr James.
MR JAMES:	I hand up the applicant's outline of argument.

MASON CJ:	Thank you.	Yes.
MR JAMES:	May it please the Court.	Your Honours, the sole

ground of the Crown appeal in the present matter

was the ground of manifestly inadequate.

That ground was examined by the Chief Justice in

his dissenting judgment. The judgment of the

majority delivered by Mr Justice Lee commences

with reference to manifest inadequacy and proceeds on a fair reading of the entirety of the judgment,

in our submission, to examine that question in the

light of one proposition; whether the trial judge

had fallen into error in failing to pass a sentence

on the present applicant which was more severe

than the sentence which was passed, or should have

been passed, upon the co-accused Harris, and to that

Mr Justice Lee devoted a great deal of attention

in his judgment.

In our submission, that process of reasoning

was in error and, further, the principle which

appears to be espoused by His Honour in that

judgment that what this Court had said in LOWE,

or a principle of disparity, would require a

sentence adjusted upwards is not only of itself

in error and unknown to the law but, in addition,

has such an effect as to derogate from a trial

judge's proper function when sentencing,

a function that was properly evaluated by

Mr Justice Roden and by the Chief Justice

Sir Laurence Street.

(Continued on page 3)

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Jackson

MR JAMES (continuing):  Your Honours, in our submission,

what occurred in this case was that the majority

of the Court of Criminal Appeal raised such a

principle as would itself afford a precedent

for subsequent cases and would give to the role of the trial judge sentencing an accused, after
an earlier sentence of co-accused, an entirely

new significance.

Further, in seeking to raise that principle,

the judgment of the majority in the Court of

Criminal Appeal gave to the role of the Court

of Criminal Appeal when sitting on an accused's

appeal a brand new significance •. that is to say, Their Honours held that the role of the Court of Criminal Appeal is to confirm an existing

sentence rather than to regard that sentence
as an appropriate sentence within the discretion

of the trial judge.

These errors, in our submission, mean that

the present case is a case of general public
importance, that it raises a serious matter in
the administration of the law as to the role

of the Court of Criminal Appeal and as to the

role of the trial judge and it is an appropriate

case for this Court to grant special leave.

It is, indeed, in our submission, a case

in which the Court will be asked to consider

an unprecedented and radical departure from the

existing principles of sentencing, both at first

instance and the review of sentences on appeal.

Your Honours, we would seek to draw the Court's

attention to what it was that the majority said

in the judgment, which commences at page 409

of the appeal book. At paragraph 2, line 22, in

the judgment of the majority, His Honour

Mr Justice Lee, said:

In my view the sentence which his Honour

imposed upon the respondent Jackson has

failed to reflect the criminality involved

in the action of the respondent during the
period covered by the conspiracy and the

sentence is manifestly inadequate.

I reiterate, Your Honours, that the sole ground

that the Crown· sought to appeal on, was the

ground of manifest inadequacy and I should include

in that the reference to the fact that both before

the trial judge and on appeal it was positively

conceded by the Crown that a discrepancy or disparity

between the sentence passed upon the applicant

and the sentence passed upon Jackson could not,

as a matter of principle, be used to increase

the sentence. That is reflected in the judgment

of the Chief Justice.

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Jackson

MR JAMES (continuing):  His Honour continued

to develop various matters going to culpability

and then His Honour held, at page 410:

The conduct of the respondent was not

a mere short-lived lapse but a consistent

course of gross abuse of high office

involving the receipt of bribes for favours.

That question had been reviewed by the trial judge,

was reviewed by Sir Laurence Street and indeed there is a specific and a detailed analysis by

the trial judge of just what role the applicant

played. That role, it was conceded, was a role

where the evidence did not permit any finding

that he was the instigator of the scheme, and

indeed did permit a finding that Harris was

the instigator; that is reflected in lines 18 to 21

on that page:

It is true that he was not shown to be

the instigator of this scheme - the
finding that Harris was most likely the

instigator seems to me to be sound - but

that can count for little in his favour.

It is accepted he had a key role in what was done

but we would submit that as far as His Honour

proceeded in this paragraph to define the ambit

of the offence, he was bound by the findings of

fact of the trial judge, which were reasoned,

specific, unchallenged and clearly established,

as well as open, on the evidence.

MASON CJ: Has Mr Justice Lee departed in any way from those

findings of fact?

MR JAMES:  In no direct sense, Your Honour, no, but what

he has done is to say:

a consistent course of gross abuse of high	office involving the receipt of bribes for
favours.

As a general description, we would not quarrel

with it, but as a basis for saying the fact of

him not being the instigator can count for little

in his favour; as a basis for saying that his

character and public service cannot count in the

balance when it comes to sentence, or cannot count

with any degree of significance; and as a basis

for saying that the trial judge fell into error

by weighing the subjective matters, in our submission

that is an inadequate basis and overstates the

appropriate findings of fact if it should come to

a matter of weight.

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Jackson

MR JAMES (continuing): We do submit, however, that when it

comes to a matter of whether the judges sitting

on appeal might or might not attach different
weight to findings, it would be a most rare case
indeed where manifest inadequacy would be made out,

and particularly in a case where the only ground

is manifest inadequacy and where one would think,

from the nature of the ground itself, that the

inadequacy would be so patent as not to need

demonstration by involved or extensive reasoning.

Yet that is what happened here.

TOOHEY J:  Mr James, you said that you would not quarrel

with the first sentence in the paragraph that
begins at line 9:

The conduct of the respondent was not a mere short-lived lapse but a consistent

course of ..... abuse of high office involving

the receipt of bribes for favours.

There is a certain ambiguity, I suppose, in that

sentence:

involving the receipt -

by whom -

of bribes for favours.

MR JAMES:  That is one of the problems, Your Honour. The

Crown case at trial - in fact, perhaps I can deal

with that best by taking Your Honours precisely

to what His Honour the trial judge said were the

matters to be referred to. At 351, His Honour

sets out:

the nature and extent of what was done

pursuant to the conspiracy

in terms of the results that were achieved.	The
first was that:

the former prisoner ..... was released on

licence under the -

scheme -

$2000.00 was paid on his behalf to Hakim.

It is notknown what part, if any, of this

reached Jackson. The release was on

compassionate grounds, and appears to have

been in conformity with the guidelines -

of the scheme.

DAWSON J:  On what page, Mr James?

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Jackson

MR JAMES:	Page 351 of Volume II of the appeal book.
DAWSON J:	Thank you.
MR JAMES:	Paragraph 2 deals with the variation of a

condition of licence. Again, it is not known

what part, if any, of that reached Jackson, and

His Honour goes on to find, at line 20:

There is no evidence indicating that the

prisoner Jackson was aware -

of the purpose of the former prisoner's trip - The application was supported by appropriate

Probation and Parole Office recommendations, but there was some manipulation of the system in order to obtain them.

(Continued on page 7)

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Jackson

MR JAMES (continuing):

A decision was made by Jackson that his .....

the former prisoner ...... be not revoked.

There was some -

$8000.00 paid to Hakim. The evidence suggests

that half this amount was creamed off by

Hakim and/or Harris, leaving a fee of

$4000.00 for Jackson, whose decision not

to revoke the licence was contrary to the

reconnnendation of the then Chairman of the

Corrective Services Connnission. The

evidence was that this reflected a

difference -

between the two - I say in terms of policy -

rather than a difference of opinion or

decision limited to this particular licensee.

There was evidence sufficient to support the

payment of a bribe to Jackson, and that is set

out in paragraph 4. It involved the delivery of

a parcel to him. His Honour says at page 354

line 9:

By March, 1983 the matter was in the hands

of the parties to the conspiracy.

Later down that page:

on the connnunication to Jackson, via Hakim
and Harris, of the grave concern expressed by

Hilton, when there was a delay of some few

days, increasing to eight days, between payment
and actual release. The release of these

three prisoners appears to have been in

accordance with the general guidelines .....

but it was achieved some few weeks -

perhaps a month - earlier ..... There was

no evidence of any other release on licence,

or other favourable decision made, pursuant

to the conspiracy.

There was evidence of other prisoners' names

reaching Jackson. His Honour expresses the view

that where their names were suggested but did not

reach Jackson, that may have been because there

was no money forthcoming.	But he turns, at page 355
line 4:

In one case at least the matter reached Jackson and money was in the hands of Hakim - the

evidence suggests $8000.000, of which $5000.00

was intended for Jackson. When Jackson ascertained

from his Depa.rt:m:nt the length of the prisoner's sentence and
non-parole period, and the period served,, he said it was
too early, and the mm would have to cc.::m;: again after seven,

eight or nine m:mths.

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Jackson

MR JAMES (continuing):

Jackson's comments to Harris included,

" ... this is ridiculous", and" ... you've

got to start to tell the bloody truth". In that matter, the money paid to Hakim

was refunded, and Jackson was told that

that had been done.

Now, Your Honours, the Crown case suggested that

all Jackson was prepared to do was to release those

who would otherwise be entitled to release. So it

was said that this episode of Jackson refusing to

release someone and telling them to wait was not,

as it were, instructive as to his full role but

it could not, in any circumstance, be a question
of aggravation. It is merely a matter to look at

in the ambit of the conspiracy.

The Chief Justice, who had sat on both this

matter and on the prior occasion when the co-accused,

George Harris and Hilton,had come before the Court

of Criminal Appeal on prisoners' appeals against

severity, reviewed in his judgment the background

to that matter when he turned to examining the

way in which the trial judge had taken into account

the prior sentences and the decision of the Court of

Criminal Appeal in respect of them. He commences

that review at page 402 after putting aside the

argument that a disparity question might, in fact,

support the Crown's contention of manifest

inadequacy and holds, at page 401:

It has not been contended by the Crown

(and in any event I would not assent to any

such contention) that this principle is to be applied by a later offender receiving a

greater sentence than the sentencing judge

considers appropriate in order to avoid

creating a justifiable sense of grievance

on the part of co-offenders who were

sentenced earlier.

(Continued on page 9)

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Jackson
MR JAMES· (continuing):

In such a situation the earlier determinations

are a relevant circumstan~e to be taken

into account in the later sentencing proceedings

(cf RV TISILANDIS ..... ). The principle

in LOWE V R does not, however, operate to

require the later sentencing judge to pass

a sentence higher than he thinks appropriate

in order to avoid or minimise disparity.

The principle operates, as Mason J. said,

on the basis that it is preferable to err
on the side of leniency. It is no affront

to notions of justice for a sentencing judge,

in deference to LOWE V R to pass a sentence

in the belief that it is erroneously inadequate

if it is done in order to avoid disparity.

The same cannot be said to apply to a sentencing

judge confronted with a possible disparity

in which the second sentence is on the low,

not the high side of the equation.

I place aside, accordingly, principles

exclusively relevant to disparity situations

as bearing directly upon the present question.

But this is by no means an end of the relevance

of the earlier sentences. They are properly

to be regarded by the second sentencing

judge as a guide to assist in reaching

the second sentencing decision. The earlier

decision represents the view of another

judge upon the sentences appropriate for

the particular offenders before the other

judge in respect of their parts in the offence

of which all were guilty. They are instances

of particular sentences falling within the

discretionary range open to the sentencing

judge. Even if unsuccessfully appealed

against, they will not acquire any authority

as precedents. The weight to be given to

them is no doubt enhanced by the refusal

of the Court of Criminal Appeal to regard

them as falling outside the legitimate field

of the sentencing discretion. But, the

earlier sentences do not have a significance

going beyond the legitimacy of their place

within the discretionary field open to the

sentencing judge unless, of course, the

Court of Criminal Appeal exercises its authority

by making some general pronouncement regarding

sentencing patterns or the range of discretion

for offences such as those under consideration,

or unless some indication of sentencing

policy is given by the Court of Criminal

Appeal.

And this was not such a case.

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Jackson

MR JAMES (continuing):  His Honour then sets out at page 403

the remarks of the trial judge as to the way in

which he should take into account those sentences

and I should indicate to Your Honours that

Your Honours will find in the judgment of the

majority in numerous places the remark that the

Court of Criminal Appeal confirmed the sentences

that were passed upon the co-offenders. That

remark is in fact correct in the sense that that

was the wording used by the Court of Criminal

Appeal when concluding its examination of those

sentences.

As th~ Chief Justice has pointed out in

his judgment concerning the dispartiy question,

however, that remar.k is not to be taken as fixing

the prior sentences, either as an absolute standard

or as a minimum bench-mark and Mr Justice Roden

took the same view as appears from what is set
out at page 403:

1.        The decision of the Court of

Criminal Appeal establishes that each

of those sentences is within the

appropriate range.	I must have regard
to that.

2. Despite the Court of Criminal Appeal

decision, none of those sentences is to be

treated as though it were itself a tariff

or range, of which it is at once the

minimum and maximum. So to regard it

would be to abdicate the responsibility

I have to exercise my own discretion.

3. Nonetheless, the fact that those

sentences were passed upon co-offenders
in this same conspiracy, is a material

fact which I must take into consideration.

I interpose there, Your Honours, to point out that

the course that was taken at the first trial was
that the co-accused were found guilty, the jury

could not agree in relation to this appellant.

The sentences that were passed on them were passed

on them as persons seeking to corrupt a.State

officer. Nothing the trial judge said - that is

Mr Justice Carruthers at the first trial - and nothing that was said on appeal in any way

expressed a view as to whether, if the accused

Jackson was convicted, there should be any

particular guidance given concerning the sentence

he was to receive.

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Jackson

MR JAMES (continuing): And that, of course, was entirely

appropriate because he had not been convicted.

He could not be heard on what was said and what

evidence should be taken into account before

Mr Justice Carruthers.

His Honour turns, at paragraph 4, to the

proposition:

Having taken that fact into consideration,

if I find that (after allowing for different

degrees of culpability, and subjective factors)

I would be sentencing at a relatively higher

level than the sentences imposed in the first

trial, I would have to consider reducing the

sentences which I had assessed, in order to

avoid what might be seen as an injustice to

the prisoners before me.

5. On the other hand, if, having taken that fact into consideration, I find that I am

sentencing at a lower level than that
applied in the first trial, it would not

be right for me to increase sentences

above what I had assessed as appropriate."

BRENNAN J:	Now, that is the principle on which you rely.
MR JAMES:	In our submission, the Court of Criminal Appeal

fell into error on applying such a principle as

was the converse of what Mr Justice Roden had

referred to.

BRENNAN J: Yes. Now, is it right to say that to make good

your argument against the majority, it is necessary

for you to establish - and I take this from paragraph

3 of your notes - that:

The Court of Criminal Appeal redefined

the disparity principle to require an

increase in the sentence -

MR JAMES:  Not entirely, Your Honour. We say, firstly, that

what the Court of Criminal Appeal by a majority did

was not to examine manifest inadequacy in its true

sense at all. Secondly, they sought to define the

manifest inadequacy in this case by application of

such a principle and that such a principle was

wrong and, in any event, had no application here.

BRENNAN J: Well, then, there are two problems we have to look

at, are there? One is whether they did examine the

question of manifest inadequacy properly and the

second is whether they adopted any such principle

as that which you seek to attack and, no doubt,

you will demonstrate both of those propositions.

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Jackson
MR JAMES:	Yes.	I will seek to, Your Honour.

BRENNAN J: Yes.

MR JAMES:  Your Honour, in that regard, the Chief Justice,

in fact, in the next line, deals with the ground

of appeal:

In considering whether the result of

His Honour's deliberations was manifestly

inadequate, it must be borne in mind that

in sentencing for an offence of this nature

there is no statutory maximum. Being a

connnon law conspiracy the sentence is in

effect at large and one seeks for guidance

both from earlier sentences for similar

offences and from other legitimate indicia

that should be taken into account in

evaluating the range.

There was, then, Your Honours, reference to quite

a mass of material from which it was sought to

draw an indicia what the Chief Justice describes

in due· course as, perhaps, only straws in the wind sufficient to give some assistance to a sentencing

judge dealing with a connnon law misdemeanour where

the penalties are at large and material that had

not been before the prior sentencing judge and

that is by way of reference to various statutes

including Part III of the CRIMES ACT of the

Connnonwealth, section 33,where a maximum of 10

years has been provided; Part IVA which deals

with corruptly receiving; of the New South Wales

CRIMES ACT which - itwas subsequent to this offence -

but provided a statutory maximum of seven years

and His Honour took the view, in our submission,

entirely correctly, that they were matters to

which some regard could be had in the general

context.

Your Honours, perhaps I should turn to

page 406 where His Honour referred to the matters

peculiar to Jackson, they being matters of character,

service to the State which the majority said in such

an offence should not be weighed effectively at all

and I take Your Honour to page 407 where the

Chief Justice says, at line 11:

(Continued on page 13)

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Jackson

MR JAMES (continuing):

I could concede that the range for Rex Jackson could have extended to

say, ten years (although the argument

based on s 33 of the Commonwealth

CRIMES ACT would present, to my mind,

some difficulty.	But that, again, is
not the point at issue.	The only question

here, as with the earlier appeals, is
whether Rex Jackson's sentence fell within

the discretionary range. In my view it

did. I am not able to conclude that there

was any error manifested in the measure

of sentence -

Your Honours, the judgment of the majority - I have taken Your Honours to the first two pages of that -

at the bottom of page 410, as had Mr Justice Roden,

as had Mr Justice Carruthers, as had the

Chief Justice, the majority denounced the conduct which:

necessarily calls for a severe sentence to

demonstrate the public's denunciation -

His Honour continues:

The sentence imposed in my view falls

significantly short of what was required.

And, Your Honours, at that point one would have

thought that His Honour was dealing with a

manifest inadequacy. However it is the

balance of the judgment and and its reasoning

which discloses why His Honour had come to

that view and that reasoning clearly proceeds

firstly upon a basis that he should receive from

an objective sentence little in his favour for

not being the instigator; little in his favour

for his good character and indeed it would be

quite wrong to take into account as a factor in

his favour that he was a member of Parliament

and reference is made to the holding of

the office. That was not what was taken into

his favour. What was taken into his favour was

his 30 years of service to the State. His Honour,

having reviewed those matters, in our submission,

at page 412, line 12, deals withtrose matters

in the context of the disparity:

It follows from what I have just said

thus far that the high degree of criminality

involved in the crime. under consideration

demanded a sentence which could not .be

significantly reduced by reason of the

subjective factors which his Honour considered

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Jackson

to be "tremendously powerful" and this

leads one directly to a consideration
of the criminality of the respondent
compared with that of the other

conspirators Harris, Hilton and George.

His Honour goes on to deal with Mr Justice Carruthers'

sentences, Mr Justice Roden, having recognized

that he should have regard to them and at line 26

His Honour embarks upon a comparison, a sort of

hypothetical sentencing of the present applicant

before Mr Justice Carruthers:

If the respondent had come before
Carruthers J when he sentenced Harris,

Hilton and George that learned judge would

have been obliged to take into account the

respective criminality of the conspirators

and fix sentences which reflected that

relativity. On any view, the criminality

of the respondent was, because of his position

as a Minister of the Crown taking bribes,

greater than that of any of the other

conspirators and there being nothing in a

comparison of the subjective circumstances

or Harris and Hilton and the respondent

respectively which might have justified the

respondent receiving a lighter sentence or
non-parole period than Harris or Hilton,

Carruthers J would have been required to

impose a higher sentence than that imposed

upon them. However, the respondent did not

come before Mr Justice Carruthers, he came

before Mr Justice Roden. The sentences

imposed by Mr Justice Carruthers were

confirmed in the Court of Criminal Appeal

(19 June 1987) and the court made the

following observations in respect of the

appellant, Harris.

TlO At line 25:

Mr Justice Roden acknowledged that the

confirmation of the sentences by the Court
of Criminal Appeal was a material fact which

he must take into consideration. In my

view his Honour however fell into error

in adopting a line of reasoning which
disregarded the fact that Harris, who was

most culpable of the others, had received a sentence of nine years and a non-parole

period of four and a half years for a crime

which was considerably less heinous than

that committed by Jackson -

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Jackson

and, in Harris' case, he being the man that corrupted

the Minister of the Crown and instigated the

offence, His Honour goes on to say:

and which required considerable weight to

be given to the fact that Harris was

seventy-four years of age and a man of

hitherto good character.

Your Honours, it becomes apparent, in our submission, that what His Honour is dealing with

prior to page 412 line 12 is, as it were, an

objective sentence and then His Honour turns

to a direct comparison of what Mr Justice Carruthers

did with His Honour's personal view.

This is instructive, in our submission,

for this reason:  a sentencing judge has a broad

area of discretion, and should have, in society's

interest. Judges are not to be taken as compelled

to reach universal and precise agreement in differing

circumstances. His Honour did not embark on any examination of what sentence Harris might

have received before Mr Justice Roden on the

material admissible and evaluated by

Mr Justice Roden. This process is all one-sided,

in our submission, and that can only mean that

the principle underlying the reasoning is the

principle that His Honour states at the conclusion

of his examination of the question of error and,

before His Honour turns to the question of whether

the Court in its discretion should intervene,

at page 416 of the appeal book, after examining

the passage from Your Honour the Chief Justice's

judgment in LOWE, His Honour concludes:

The intervention of the court in the present

case, where there is manifest discrepancy

between the sentence passed on Harris and

necessary to disclose publicly that the the sentence passed on the respondent, is	crime committed by the respondent was more
heinous than that committed by Harris who
was the most culpable of the other conspirators; and to remove forever, by imposing a sentence
which does reflect the respective degrees
of criminality in the offences of the
respondent and Harris, any suggestion
that the criminal justice system has been
allowed to operate to favour a Minister
of the Crown but not a private citizen.

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Jackson

Such suggestion could only arise on the basis

that the first sentence was the right one and

His Honour's reasoning, to get from 412 to 416,

passes through the passages I have taken the

Court to concerning the confirmation by the Court

of Criminal Appeal of the sentence of

Mr Justice Carruthers,continues to deal with

that matter at the top of page 414:

that when the Court of Criminal Appeal confirmed

the sentences passed by Carruthers J -

I am sorry, I will go back.

(Continued on page 17)

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Jackson

MR JAMES (continuing):

His Honour reasoned that when the

Court of Criminal Appeal confirmed the sentences

passed by Mr Justice Carruthers it

did not more than confirm that they were

in the appropriate range of sentences

that might have been imposed and that

therefore he was not bound absolutely to them and could begin his reasoning by recognising that there was a lesser

sentence that might have been appropriate

to Harris or Hilton. But even on that

footing he was still obliged by reason

of the respondent's criminality being so

much greater than that of Harris who stood

at the head of the others to fix a sentence -

and if I might stop there, Your Honours. If
His Honour had said, "to fix a sentence which was

more severe than the sentence he would have passed

on Harris," this passage might not have been in

error. But what it says is:

which had to be more than seven and a half

years -

and His Honour's comparison has been with the numbers.

His Honour then sets out the passage from the trial

judge's judgment at page 9 concerning his own

responsibility and continues:

but in his exercise of his own discretion in

the matter his Honour was bound, to ensure

that Jackson was sentenced for the criminality

involved in his conduct and of necessity this

required him to consider the appellant's

conduct as much more heinous than that of

Harris and sentence accordingly.

There is nothing in the trial judge's reasons which

in any way suggests that he did not properly weigh

the applicant's position as minister of the Crown

and his culpability in the light of what was

revealed before him as to the culpability of the

co-offenders.

DAWSON J: Except the result.

MR JAMES: Well, Your Honour, that is only if one takes the

view that that first sentence sets a bench-mark.

DAWSON J: It does set a bench-mark in a sense, not one that is

utterly binding, but it must, if it is to be taken

into account, how otherwise is it to be taken into

account.

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Jackson

MR JAMES:  Well, Your Honour, the problem that presents is -

Jackson was not heard at all before the first judge.

The materials concerning the current legislative

attitude to maxima in cognate offences, minor though

they might be, were not before the first judge.

There was no argument put to the first judge. He

was sentencing for this offence, for a common law
misdemeanour with no assistance of any kind and

for an offence where the discretion was very wide

and literally had to take what he could as a figure.

DAWSON J:  Mr Justice Roden himself recognized that the other

sentences had to be taken into account. How

otherwise do you take them account than seeing them

as setting a certain level?

MR JAMES:  As being sentences within an appropriate range.

DAWSON J: Well, that is a sort of bench-mark, is it not?

MR JAMES: Well, perhaps, Your Honour, I do not want to use

words - - -

DAWSON J: We do not want to get into semantics,no. But it

does set a level, if I can use that term.

MR JAMES:	Oh,yes.
DAWSON J:	And that is all His Honour is saying here.
MR JAMES:	But the way in which His Honour Mr Justice Roden

and the Chief Justice took it into account, in our
submission, is perfectly correct. This is -on a
full examination of this judgment, in our submission,

what Mr Justice Lee is doing is taking it into

account a different way.

DAWSON J:  Why? He says, "I look at the level, which is

demonstrated by those other sentences; I say that

this man's offence was much more heinous and requires

a greater punishment,fl and therefore, he comes to the
conclusion he does.	What is wrong with that?

MR JAMES:  Because, Your Honour, in that sense, what His Honour

is saying, is that - the ·way in which His Honour does

it is to look at the culpability as reflected in the

figures and as confirmed by the Court of Criminal

Appeal.

(Continued on page 19)

C2Tl2/2/VH	18	9/9/88
Jackson

MR JAMES (continuing):  At no stage does His Honour deal

for himself with the range and the discretion or

the question of tariff. In Mr Justice Lee's

judgment one does not find any adequate reflection

of the breadth of the discretion of the trial
judge, in fact, the judgment is expressed in

absolute terms including an absolute rule that a

minister would have to receive more. That there

is a general rule is something one could not

quarrel with, but- this is stated in absolute

terms. Rather than in saying, "We have got a very

good indication of the range here.", what His Honour

seems to be saying is that first sentence defined

the culpability and in that respect seven and a

half years must have fallen short.

Now, I am not saying he is reducing it to years

upon Harris of five years. That sentence would

and months with absolute precision but the discretion

in this case is so wide as to have permitted

have fitted with a seven-and-a-half year sentence

for Jackson entirely. When it comes to the question

of dealing with such a problem as a connnon law
misdemeanour,of which there are many still remaining

in New South Wales, a trial judge has of necessity,

a very broad discretion. That was recogniz8d by

the Chief Justice and Mr Justice Roden but not by

the majority at all. This is not, in our respectful

submission, a matter of consistency that is being
raised here, it goes close to being a matter of
uniformity of reasoning and discretion, particularly

since the principle that was invoked was the tOWE

principle, that being a principle which really turns

on the proposition that in order to assuage the

justifiable sense of grievance and for the purpose

of avoiding a sense of injustice, an otherwise

appropriate sentence may be reduced.

DAWSON J:  But the I.OWE principle flies out the window

once you decide the offences are of a different

character because of the character of the

participant?

MR JAMES:  Well, it was the principle on which

Mr Justice Lee relied when it -

DAWSON J:  No, it was not, with respect. What he was saying

is, "I am prepared to accept that the sentences

imposed on the others were proper and appropriate

sentences." Now, upon. that basis this man, because

his offence was so much greater, has to receive

a greater sentence. That is not inconsisent with

anything said in LOWE.

MR JAMES:  Yes. At page 415, which I would come to,

Your Honours, where His Honour says - connnences

C2T13/l/MB	19	9/9/88
Jackson

with the reasoning at the bottom of page 414:

In short, even if his Honour looked upon the

sentence of nine years imposed upon Harris

and confirmed in the Court of Criminal Appeal,

as not being an absolute guide which he must

follow, the sentence of seven and a half years
imposed upon the respondent could never be

said to be :(Jne -:-1hich properly allowed for the

respective criminality of the respondent and

Harris. Although his Honour had said in his remarks on sentence:

"As a general rule, when there is a conspiracy

involving corrupt practice by the holder of a
high public office, the holder of that office is

to be regarded as the most culpable."

the sentence imposed failed to treat the

respondent as the most culpable.

With respect, that is not so.

DAWSON J:  He was not setting out to follow anything that

was said in LOWE. LOWE says that :you should, if

possible, speaking generally, avoid disparate

sentences. What His Honour was, for the reasons

which he gave, setting out to do, was to impose

a disparate sentence.

MR JAMES:  Well, Your Honour, at page 415, line 15 approximately,

when he deals with the question of discretion
on intervention, he says:

In my view, the very nature of the case, involving as it does a Minister of the Crown

who has been party to a conspiracy involving

the taking of bribes, requires that the court

interfere and re-sentence the respondent.

The significance of disparity in sentencing was

considered by the High Court in LOWE V THE QUEEN. (Continued on page 21)

C2Tl3/2/MB	20	9/9/88
Jackson

MR JAMES (continuing):  And he goes on to refer to LOWE

and the judgment of this Court in that and says

at page 415, last four words:

That case is not directly in point here but the observation of.Mason J

at p 610 set out below in my view, states

a proposition which is also applicable

to the case of a sentence passed upon a

co-offender which is lower than than

passed upon another co-offender whose

crime involves less criminality.

And then sets out the now famous passage from that

case referring to the badge of unfairness. What

His Honour had said before turning to the discretion

to intervene, however, is there was a manifest

discrepancy between the sentence passed upon the

respondent and that passed on Harris, yet the

respondent's crime was more heinous. So that he

is examining, in our submission, the two sentences.

DAWSON J:  Of course he is because he is saying they are not

comparable.

MR JAMES:  But he goes on, Your Honours, to say as the Court of

Criminal Appeal confirmed the sentence passed on

Harris the only conclusion open is that the sentence

passed upon the respondent is manifestly inadequate. in the reasoning and the comparison and that comparison being only one way, rather than seeing

how Mr Justice Roden might have dealt with Harris.

Your Honours, the balance of the material - - -

DAWSON J:  If I could just finish this off, and I will not

interrupt again, Mr James. All I am saying is that

where you are not talking about comparable offences,

and that is the basis on which Mr Justice Lee

proceeds, then LOWE's case has little to say.

MR JAMES:  Yes, I accept that, Your Honour, but, of course,

if one is not talking about comparable offences,

intervention of this nature, in this way, by this

process of reasoning is probably even more

erroneous.

DAWSON J:  What are you saying now? Is that what you are

attacking, the fact that His Honour came to the

conclusion these were not comparable offences

because this man was a minister of the Crown?

The others participated in a lesser capacity.

MR JAMES:  That is one of the submissions we make, Your Honour,

that he formed an absolute rule that there is

no such absolute rule - Sir Frederick Jordan

said in GEDDES the golden rule is there is no

golden rule, and further that His Honour's findings

C2Tl4/l/HS	21	9/9/88
Jackson

that in such a case service to the State,

character, not being an instigator, and such like

matters are entirely to be put aside simply

because of the existence of the office, and

it is interesting that His Honour examined those

matters in order to look at the question of

comparability and then he said that because of those

matters this leads one directly to a consideration

of the criminality of the respondent compared with

that of the other conspirators at page 412,	and
in that sense what His Honour has done is to adopt they are not similar, because of that

absolute rule, but then to embark on the comparison.

Your Honours, the trial judge reasons

in this case were carefully expressed, carefully

reasoned and carefully examined by the minority.

In our submission, there is no error of principle.

nor error in the conclusion to be found in them

once one recognizes the breadth of the trial judge's

discretion, and indeed there is nothing, in our

submission, of any substance in what the majority

says that so recognizes the breadth of that

discretion.

(Continued on page 23)

C2Tl4/2/HS	22	9/9/88
Jackson

WILSON J: Are you saying that there is, therefore, no basis on which one can infer error simply by

reason of manifest inadequacy?

MR JAMES:  No, Your Honour. The Crown has in this case

simply appealed on the ground of manifest

inadequacy and conceded before the trial judge

and on appeal that no parity upwards principle

operates. In this case, when one is dealing

with such a broad discretion - - -

WILSON J:  So, therefore, the Crown is not pointing to

any manifest error, if I can use that term.

MR JAMES:  Instead of manifest inadequacy, yes, Your Honour.

WILSON J: And it is simply saying, "Look at the sentence.

The judge must have erred. We can't point out

what the error is but it is to be inferred from

the fact of the sentence viewed in the light of

the circumstances".

MR JAMES: That is right, yes. Well, one way, Your Honour,

of perhaps referring to manifest inadequacy is

that it should be plain without demonstration yet

if demonstration is embarked on, one is really

dealing with something else and if demonstration
is embarked on by the examination of new principles

in order to show that the sentence is manifestly

inadequate, then that reasoning must be wrong.

WILSON J: Although, I was going to ask you, I understood

you to acknowledge that in the early pages of his

reasons, Mr Justice Lee does express the conclusion

that without turning to any principles that the

sentence is, in his view, manifestly inadequate.

MR JAMES:  No, Your Honour. What I did put is that he does

express the conclusion that the sentence is

manifestly inadequate but he does so by embarking

on a process of reasoning in order to produce that

conclusion and that concludes - - -

DAWSON J: If that is right, it would be dangerous for a court

to give its reasons in a case of manifest inadequacy.

MR JAMES:  Oh no, no, there would be nothing wrong with a

court pointing out that the range in this particular

matter is in the region of this, this and this and

we are able to say that because of our experience.

Indeed, it might even end up that the court has to

act in these matters - or a trial judge has to act

in these matters - as he would when assessing

general damages and PLANET FISHERIES V LA ROSA -

he relies upon his experience, his findings and

produces that which is proportionate but, to

C2Tl5/l/SH	23	9/9/88
Jackson

interfere with it on the basis that he is patently,

plainly wrong either requires the sent~nce to be

so far beyond the range that one says, "Gosh,

this is completely outside experience" or one

embarks on the process of seeking for error.

Now, in this case, His Honour has sought to

demonstrate the inadequacy by the reasoning and

that is not, in our submission, the way in which

manifest inadequacy is normally detected though

there is no objection to embarking on a reasoning process provided that if one does so one does not

have to support the conclusion - - -

DAWSON J: But it is really an argument that the very intricacy

of the reasoning demonstrates that what was said to

be manifest is not manifest.

MR JAMES:  Yes. There is that argument and there is the

further argument that these principles adopted in
it were wrong and, if that is necessary to support

the manifest inadequacy, and one adds to that, of
course, that when it comes to the detection of
manifest inadequacy, it is the experience of the
judges to which one has regard rather than one's
personal view. In that sense, it is very important
that the trial judge delivered extensive reasons
to permit a full examination of principle of his

judgment; that the Chief Justice dissented and did

so upholding the trial judge's reasons and that in

that regard there was little guide to the trial judge

by way of precedent so that he is adopting that

almost unique role of the connnon law judge sitting

on a connnon law misdemeanour.

(Continued on page 25)

C2Tl5/2/SH	24	9/9/88
Jackson

MR JA:t1ES (continuing):  When the Court of Criminal Appeal

came to its examination it placed this case in
a special category, that is the absolute rule
relating to a minister of the Crown and, in
essence, put it in a special category of

sentencing. That is to say, that, unlike any other

case, in this case, good character is to be irrelevant.

BRENNAN J:  Mr James, if I could just take you to the

bottom of page 410 and the top of page 411,

where His Honour says that:

The sentence imposed in my view,

falls_significantly short of what was required.

If it had stopped there, then we would not have been involved in the argument of what followed

with respect to LOWE's case and comparative

sentences. But if that was His Honour's view, then

your first argument, and that alone, would have

had to have been examined. Is that right?

MR JAMES:  Yes, and the argument that what had happened

had been His Honour substituting his own

views for the trial judge. In essence - - -

BRENNAN J: Well, that is his duty, is it not, once he

comes to the conclusion that the sentence failed

to demonstrate the public's denunciation of the

conduct?

MR JA:t1ES:  Your Honour, on a manifest inadequacy, provided

he comes to the conclusion that exercising his

judicial function on appeal from a discretion,

rather than substituting his own view for the

trial judge, there is shown to be here an exerci§e of discretion beyond the legally permissible range, then it is his duty to impose

his own view as to sentence.

MR BRENNAN:	Yes.
MR JA:t1ES:	But it is not his duty to impose his own view

as to sentence for the purpose of detecting the

error.

MR BRENNAN: Well now, it may be that one does not otherwise

detect the error, except to see that it is so disparate

from what the judge, in his view of what the tariff is

for this particular offence, regards as appropriate. I mean,

it is comronplace in courts of criminal appeal.

MR JA:t1ES:  Of course. Your Honour, in fact in the judgment in TAIT

AND BARTLEY, at 475 to 477, deals with exactly this

and we would not quarrel with a circumstance where

an appellate court, having regard to judicial

experience and an appropriate range, saying that if

C2Tl6/l/JM	25	9/9/88
Jackson

necessary, to support its findings - though not

necessarily - says, "This is outside the range.",

but that is not what His Honour did.	What
His Honour said was:

The sentenced imposed in my view,

falls significantly short of what was

required.

Now, in order to support that statement, His Honour

embarks upon the reasoning subsequent to page 411,

and in order to produce that statement His Honour

has developed the proposition that you give no

weight to the fact that he was not the instigator;

you are required to denounce his conduct because

he was a minister of the Parliament and he

continues, which clearly is part of his reasoning,

that it was not open for him to receive any weight

for character or service to the State. Such a

principle, of course, would mean that if someone

went into office five minutes and committed grave

sins, he would be weighed equally with someone

who had been in office for 30 years of valuable

service to the State.

BRENNAN J:  Mr James, if His Honour, as a matter of his

own impression, came to the view that this sentence
fell significantly short of what was required, it

would be his duty, would it not, to check that first judicial impression against a variety of

circumstances. One would have thought that the

best circumstance against which he could check it

was the sentence passed on the other co-conspirators.

(Continued on page 27)

C2Tl6/2/JM	26	9/9/88
Jackson

MR JAMES:  It would be his duty to check it firstly against

the sentence of the instant trial judge in the
context of what the Court of Criminal Appeal
in fact did do, which was merely to say, as the

Chief Justice pointed out, that the prior sentences

were within the discretionary range and then,

perhaps, to turn to the first trial judge?

BRENNAN J:  He has, on one view of this judgment,

Mr Justice Lee has, first of all, his own impression;

secondly, he has the clear con~:ction that the

criminality of Jackson exceeds the criminaJity

of the co-conspirators and he has a sentence

imposed on the co-conspirators confirmed by the

Court of Criminal Appeal?

MR JAMES: No, Your Honour, with respect, it was not confirmed.

What it was, was - all that the Court of Criminal

Appeal said was, as a legal proposition, "These

sentences are within the range". Indeed, they went so far as to reduce the non-parole period

of one of the - - -

BRENNAN J:  I thought you said they usf!d the word "confirm"?

MR JAMES: Yes, but that was purely formally and the

Chief Justice makes that very plain as does

Mr Justice Roden when they examine the role of

the Court of Criminal Appeal. That is why we

have one of the submissions here that the majority

here mistook the role of the Court of Criminal

Appeal, and it was, after all, the Chief Justice

who had sat on that appeal and on this.

Your Honours, the matters we have referred

to in our written submissions, in paragraph 7,

where we refer to the specific criticisms of

such matters as the examination by the majority	the reasoning of the trial judge, relate to
of the weight to be given to character; the weight to be given to the fact that he was not
an instigator, the weight to be given to his
public service and we refer there to MALLETT V MALLETT for the proposition that matters of
weight alone, or merely of weight, would not
support appellate intervention on the exercise of a discretion.

We seek nothing new there but we do submit

that such errors and the detection of such errors

in the Court of Criminal Appeal's reasoning -

the reasoning of the majority - does allow one

to detect that the true basis of the decision

C2Tl7/l/SDL	27	9/9/88
Jackson

that Mr Justice Roden was in error was really a

disagreement of a personal nature with result

rather than the performance of that difficult

function in defining the proper ambit of discretion

and, in that sense, we rely on what is said in

paragraph 7 to support the conclusion that at

the end of the day, what really was being done

here was a comparison between the first sentence

and the second sentence.

MASON CJ:  But that is an acceptable ground of intervention

in relation to discretionary judgments, that

the end result is unreasonable?

MR JAMES:  Yes. Your Honour, I accept that that is

an acceptable ground of intervention but what

we submit here is that in order to get there,

by looking at these weighted factors, what

Mr Justice Lee had to do was to give to factors

which normally must receive weight in any crime
no significance in this particular crime at all

and that is the way he reasoned to that conclusion.

(Continued on page 29)

C2Tl7/2/SDL	28	9/9/88
Jackson

11R JAMES (continuing): Indeed, if one looks to the pas~age that

His Honour cites in his judgment at page 411,

lines 10 to 25, in what the trial judge has done -

WILSON J:  And you would say that the questions of relative

weight accorded to the facts of the case by the

Court of Criminal Appeal raised a point of special

leave?

11R JAMES:  No.

What the Court of Criminal Appeal did,was, in effect, to say matters which are normally given

weight should not be given weight at all, and if

they had to do that -

WILSON J: In their opinion, in their evaluation of the

circumstances of that case.

11R JAMES:  Yes, that is so. It is almost expressed as an

absolute rule in circumstances of persons in high

office who have instances of corruption, Your Honour.

It is not really expressed as a matter personal

entirely to Jackson. But it was a matter that

Mr Justice Roden had regard to when he put character

in context. At page 362 he says:

As a general rule, when there is a conspiracy

involving corrupt practices by the holder of
a high public office, the holder of that office
is to be regarded as the most culpable. By
virtue of his office, he has the power to

maintain or destroy the integrity of the great

institutions upon which our way of life depends.

Wholesale corruption in high places can destroy

the very fabric of our society. As the Minister

of the Crown responsible for the State's prisons,
the prisoner Rex Frederick Jackson was the

holder of such high public office.

That having been said, the very fact that

there are varying degrees of culpability in

offences of this nature, requires that regard

be had -to the nature and extent of tr..is particular conspiracy

For the prisoner is to be sentenced on the basis

of what was established against him in this trial.

Your Honours, when His Honour turns to character, as

he does at page 365, after reviewing Jackson's frailty

in financial affairs arising from his obsessive

gambling, His Honour goes on to say:

The tragedy is all the greater by reason of the quality of the man it befell.

Approximately line 18:

On the one hand he is a self-made man, described

as a rough diamond, tough, always a fighter in

C2Tl8/l/VH	29	9/9/88
Jackson

one sense or another, a battler who made good.

On the other hand, according to the succession of character witnesses who gave evidence for

him before the jury, a caring and compassionate

man, hard working, respected on both sides of

politics for his mrk :in ParlianEnt and as a Minister

and regarded as a man of honesty and integrity

by witnesses, two of whom had for many years

been his Parliamentary and political opponents.

At the end of thirty-one years of

Parliamentary services, it is now his life that

is in tatters, for a disclosed gain which,

so far as the evidence goes, did not exceed

$20,000.000. That sum is as insignificant

alongside the life it has ruined, as it is

alongside his current crippling debts.

I have set out a little more than Mr Justice Lee set

out, at page 411. But the trial judge went on to say:

The true measure of his criminality, however,

is not to be found solely in how much or little he gained, or in how much or how little society

may have suffered through the early releases

of the prisoners he procured. Its true measure

lies in the undermining of the institutions and

the principles on which we depend.

And His Honour deals with corruption in high office and sets that character in that context. And indeed, on

a full reading of page 411, in Mr Justice Lee's

reasoning, it is our submission that Mr Justice Roden

has done very much the same thing, that is say, set the question of character in the context of a person
holding high office who commits a crime relating to

the performance of his office.

(eontinued on page 31)

C2Tl8/2/VH	30	9/9/88
Jackson

MR JAMES (continuing): And from there on what His Honour

is doing is either adopting a wrong principle

or giving wrong weight to the way in which good

character should be regarded.

Your Honours, I am reminded that in response to a question put to me by Your Honour the Chief Justice,

answered that unreasonableness is a basis for

intervention but it must be such unreasonableness

as is patent, unreasonableness in the sense of the

result demonstrating that there must be that such

error.

MASON CJ: Yes. If a sentence is manifestly inadequate on

the face of it, then, of course, there is warrant
to intervene notwithstanding that you cannot show

that irrelevant considerations were taken into

account or relevant considerations were omitted.

MR JAMES:  Yes, we accept that, Your Honour, but this was not

such a sentence. It was Mr Justice Lee's view that,

in his view,he would not have sentenced at this level

but no examination was made in short form, we would

say, of a comparison between Mr Justice Roden's

general level of sentencing in this conspiracy

and Mr Justice Carruthers.

Your Honours, our submission is that what happened in this case was wrong in principle and

lays down a principle for appellate intervention

going well beyond anything suggested in TAIT AND

BARTLEY, going well beyond anything referred to

in the Court of Criminal Appeal in HAYES and, in

effect, returning to the position as it was before

WHITTAKER when the Court was of the view that the

Crown had a right of appeal which simply allowed

substitution by the Court of Criminal Appeal of

the sentence it, itself, would have passed. That

has been a doctrine that has not existed in

Australia, at least since TAIT AND BARTLEY.	The
essence of detection of manifest inadequacy, we

would submit, is the experience of the judges and
one must invariably have some doubt about that

when one has a conflict between judges as to the

appropriate level of sentencing. That conflict

might be resolved by some statement of general

principle from the Court of Criminal Appeal as

was done in POYNER when the matter came before

this Court and the Court of Criminal Appeal had

held on a prisoner's appeal that it was time the
tariff was increased and did not reduce the

sentence, although excessive, to the level that

would have reflected the position prior to its

statement but this is not such a case. As the

Chief Justice points out, there is no statement

of general guidance being given yet the two

principles adopted are such as to form precedent.

C2Tl9/l/SH	31	9/9/88
Jackson

In our submission, special leave should be

granted and the appeal upheld.

MASON CJ:  Thank you, Mr James. Yes, Mr Blanch.

MR BLANCH:  May it please the Court, I hand up an outline

of the Crown's submissions.

MASON CJ:  Thank you. Yes.

(Continued on page 33)

C2Tl9/2/SH 32 9/9/88

Jackson

MR BLANCH:  May it please the Court. If instead of addressing

that outline in detail, Your Honours, if I might

go directly to the points at issue that are raised

in the course of my friend's address. The first

matter that I would wish to submit is this;

it is clear that in order for a matter of special

leave to arise here it is necessary for the

applicant to show that there was some failure on

the part of the majority in the Court of Criminal

Appeal to appreciate the proper principles of

intervention on a Crown appeal. Those principles

have been clearly stated as involving the demonstration

of an error of principle or an error of assessment
of facts and that either of those errors can be

shown from the manifest and adequacy of the sentence

itself.

In our submission, there is no question about

those principles nor is there any question about the

fact that His Honour Mr Justice Lee applied those principles in the judgment that he gave. Without

reading in detail from the judgment of His Honour,
the passage has already been pointed out at page 409
of the application book where at the very beginning

of the judgment His Honour concluded that the

sentence was manifestly inadequate. He proceeded

then through the next couple of pages to the top

of page 411 where he again said that:

The sentence imposed in my view falls

significantly short of what was required.

It was unnecessary for His Honour to go any further
in applying the principles of law in looking at

Crown appeals than that in order to show that

the sentence was an erroneous sentence, there had

been a miscarriage in the trial judge's discretion

in imposing sentence such as would warrant the

intervention of the court.	The second point that
my friend wishes to establish is that what His Honour

in fact did was to apply the principles of disparity

of sentencing in respect of a lower sentence in

comparison to previous higher sentences that had

been imposed. In our submission, that is certainly

not what His Honour did at all.

It may be possible to demonstrate that by

briefly referring to His Honour's juagment but the

format of His Honour's judgment was simply to state,

as I have just indicated, right at the very beginning

in the opening two or three pages, that the sentence

in his view was manifestly inadequate. He then,

at page 411, proceeded to look at the question of

the degree of weight that was given to the character

of the applicant as opposed to the criminality

involved in the case in the exercise that any judge

C2T20/l/MB	33	9/9/88
Jackson

goes through in imposing a sentence. His Honour

came to the conclusion that the trial judge had

given too much weight to the question of character

and he pointed out that there were special

considerations in the case, not just the case of

a holder of high office but a holder of high office

who had betrayed that very office in the connnission

of the offences. He makes that abundantly clear

at about line 27 on page 411 where he says:

who cormnits a crime relating to the performance

of his office.

That was the first matter that His Honour looked at.

Then on page 412 he said, on line 8:

It follows from what I have just said that

the high degree of criminality involved in
the crime under consideration demanded a

sentence which could not be significantly

reduced ...... and this leads one directly to
a consideration of the criminality of the

respondent.

(Continued on page 35)

C2T20/2/MB	34	9/9/88
Jackson

MASON CJ:	Compared with that of the other conspirators.
MR BLANCH:	Yes, Your Honour.
MASON CJ:	So that up to this point your submission is that

His Honour was directing himself to manifest

inadequacy in the abstract, otherwise than by

comparison with the other offenders?

MR BLANCH:  Yes, but the next point I wish to make is

this, that my friend comes to this line and says
that from this point onwards His Honour is looking

at the principle of disparity. In our submission

he is not doing that at all. What he is doing

is looking at the criminality of the respondent.
He is embarking upon a comparison of the criminality

of the respondent comriared to the other conspirators and he uses that word 'criminality of the respondent"

on a number of occasions. I will not take the Court

to all of them but it appears in that line when he

starts off the introduction of what he is doing,

he is saying, "I'm considering the criminality

of this respondent as compared to the others",

and then down the bottom in the second last line

he refers to "the criminality of the respondent"

again and that same phrase occurs again and again

over the next few pages.

What he is doing in these pages is not, as my

friend says, applying a legal principle of parity of

sentencing, but examining comparisons of criminality

between the applicant and the other offenders and

he concluded, as a result of that, that the

criminality of the respondent was greater.	I will
not go to the detail of that but some of the
other passages read out, the passage that was

read out about Harris' criminality was less than

Jackson's - - -

MASON CJ:  That is a rather meaningless distinction, is

not it, because when you read on immediately

after the commencement of the discussion, the
discussion centres not only on criminality but on

the relative sentences that have been imposed?

MR BLANCH:  Yes, Your Honour. It must go on to that to

make it relevant to the considerations in hand.

What he is concerned to do at this stage is to

look at the criminality of this respondent and

to weigh it up; in other words, to embark

upon the same exercise that was embarked upon by

the sentencing judge. The sentencing judge, as any

sentencing judge is bound to do, is bound to weigh

character on the one hand, subjective features,

against the objective circumstances of the offence

itself, and he dealt immediately with the subjective

circumstances when he was talking about character.

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He is now dealing with the objective circumstances

and comparing criminality. He must then come to a

question of comparison of sentence and he does that.

He comes to the point at page 415 of looking at the
question whether discretion, whether within the
the court's discretion the court should intervene

and decides that the court should intervene, and

Crown appeals are always dealt with on that basis,

from a practical point of view, by the Court of

Criminal Appeal of first determining whether there

has been an error and secondly, if there is an

error, whether it is such an error as requires

the exercise of a discretion to intervene and

impose another sentence.

TOOHEY J:  Mr Blanch, is it not apparent from the reading

of His Honour's judgment, that is Mr Justice Lee's,

that having decided that Jackson's criminality was

greater than that of Harris' and Harris having

received a sentence of nine years it followed, in

His Honour's view, that Jackson's sentence must be

greater than the nine years imposed on Harris?

MR BLANCH:	With just this exception, Your Honour, and this is precisely where we have come to in the reading of what His Honour says, and this is at the bottom
of page 415,  when he came to that point of
discretionary intervention he then looked at
LOWE's case.  It was only then that he looked
at what was said by this Court in LOWE.

(Continued on page 37)

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MR BLANCH (continuing):  He said that the bottom:

That case is not directly in point here -

but then referred to some of the observations of

principle in the case.	Then again, at the bottom
of page 416 at line 29:

Making due allowance for the fact that the learned sentencing judge was not - nor are

we - bound absolutely to the sentence of

nine years penal servitude imposed upon

Harris and, bearing in mind that in a

Crown appeal -

et cetera. So he addresses that question and

my answer to Your Honour's question is this: that
he was looking at a situation where a sentence

had been imposed by the Court of Criminal Appeal

on an earlier occasion - had been imposed by a

sentencing judge on an earlier occasion and

confirmed by the Court of Criminal Appeal, and even
allowing for the fact that that simply means

the Court of Criminal Appeal confirming that

it came within a tariff of sentences. He adverted

to that and it is difficult to see how in imposing

a sentence for a conspirator involved in the same

conspiracy it would have been impossible not to adverted to it. It was a level of sentencing in the form of words that Justice Dawson used to

describe it; it was a level of sentence that had

been imposed. This Court was making a determination

then of what the appropriate sentence should be and it was a factor taken into account. If the court had disagreed with it, no doubt the court

could then have imposed a completely different

sentence.

TOOHEY J:  I am not sure that that is an answer. You speak

in terms of parity or disparity but, in truth,

does His Honour do more than decide that the

criminality of Jackson being greater than that of

Harris, the sentence appropriate in Jackson's

case - Harris having received a sentence of nine

years imprisonment - must be greater?

MR BLANCH:	Your Honour, the answer to that is he does something more than that - he would do nothing
more than that if he accepted without question
that he was bound by a sentence of nine years
imposed in the case of Harris. But he did not
accept : that; he did not say that.  He said,
in fact, the opposite and that is why I was
taking Your Honour to that statement at the
bottom of page 416.

TOOHEY J: Yes, I appreciate that, but if you go back to the

foot of page 413 where His Honour said:

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Jackson

In my view his Honour -

speaking of the trial judge -

however fell into error in adopting a line

of reasoning which disregarded the fact that

Harris, who was most culpable of the others,

had received a sentence of nine years and a

non-parole period of four and a half years for

a crime which was considerably less heinous

than that committed by Jackson and which

required considerable weight to be given -

et cetera. Is not that really taking the nine

years as the bench-nark for the sentencing of than that of Harris', the sentence must, in

His Honour's view, exceed nine years?

MR BLANCH:	He was dealing there, Your Honour, with the question of comparative criminality and - - -
DAWSON J:	Why should he not take it as a bench-mark?

I have asked this question before. If he

decides, as he obviously did, that the

nine and a half years - there was nothing wrong

with that, why should he not take it as a

bench-mark?

MR BLANCH:  There is nothing at all wrong, Your Honour. I would not be seeking - - -

DAWSON J: There seems to be some feeling that the word

"bench-mark" is taboo.

MR BLANCH:  Your Honour, I would not be seeking to defend

de point where he simply accepted without analysis

the sentence of nine years and going on from there.

What I am saying in answer to Justice Toohey

about the matter is that he did in fact analyse

it; he did accept it. He did, in his own assessment

of the situation, accept that this was an appropriate
sentence and he then imposed an appropriate sentence

himself. In short, he did not abdicate his

responsibility. The total sentence that he has

passed and his reasons for sentence indicate that
he has not abdicated his responsibility to consider
the whole matter, to consider the criminality and
to impose an appropriate sentence, having concluded

that the first sentence was manifestly inadequate.

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MR BLANCH (continuing):  And so it is not a technical matter of

parity of sentencing at all that arises in the context

of the case. As has been indicated, the Crown appeal

was conducted in the court of the basis of simple,

manifest inadequacy.

DAWSON J:  It is really - it is not a case of parity of sentencing

at all, it is a case of relativity of sentencing.

MR BLANCH:  Yes, sentencing, yes, for relative criminality, exactly, yes. That is precisely what the judgment

is devoted to. There was one factual matter that

I wish to advert to, and that was a question that

arose as to the amount of money paid to the applicant.

Various passages were read out and a summary of them

appears at page 351 of the appeal book and following.

This was an important point and an important point made in the context of assessing the criminality and assessing relative and comparative sentences,

because the learned sentencing judge went through an

exercise of attempting to gain some idea of what

relative sentences were provided in other statutes

and looking at a general tariff.

If I might just, first of all, come to the

question of just the actual facts. The importance

of the facts, in our submission, were that even if

you look at a particular offence and a particular

penalty, what this case concerned was a course of

conduct over a period of time, and that was a point

that was forc,ibly made by Mr Justice Lee in his

judgment. Instances are enumerated here in the

sunnning up of the judge on the question of sentence.

There were just two other factual matters that I would

refer to briefly. One was a piece of evidence that

actually appears in the appeal book, but in the course
of the sunnning up by the judge to the jury, at page

133,dealing with a telephone call after the release

of what was called the "Broken Hill Three," and it

was a telephone call between Jackson and Harris, where

Jackson said to Harris words to the effect that,

"We're going to have to watch ourselves in the future."

And this was because of a suggestion that some word

had leaked out in Broken Hill gaol about the release

of these three prisoners and some other prisoner had

had to be released	so that there would not be a
fuss.

There is another piece of evidence which is not in the appeal book and it relates to another telephone

call - an intercepted telephone call - between

Jackson and Harris where Jackson expressed the sentiment

that in April 1983, "We can do plenty between now and

August." I only make those comments about the facts

on the basis of some brief attempt to demonstrate

the ambit of the conspiracy alleged by the Crown, and

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it is an important factor, in our

submission, because when one comes to the question

of sentence, the important factor is that it is a

conspiracy that went over a long period of time.

I wish to make this further submission. It was a

submission that was made to the Court of Criminal Appeal. It is the submission that is referred to

in our outline of argument in paragraph (5). As

I indicated, it is not specifically reflected in

the judgment of Mr Justice Lee, but it is a submission

that I would raise again on this point: that the

sentencing judge, in arriving at his sentence,

attempted to ascertain a tariff and, in doing that,

a number of statutory provisions were referred to him and he, in general terms, accepted that there

was a general practice of sentencing or a tariff
of somewhere between two and seven years .

, I.n the outline - if the Court wishes me to take it to that, in the judge's assessment of that,

.

I will. I refer to them - it is particularly at

pages 359, 360, 361 and 362 of the appeal book.

(Continued on page 41)

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Jackson
MR BLANCH (continuing): That is where he looked at a

tariff situation. The point that we sought to

make in the Court of Criminal Appeal and would

seek to make again here is that there were a number of statutory provisions providing for higher penalties than that that were not referred

to. The Chief Justice in his dissenting judgment

on the question of sentence refers to section 33 of the Commonwealth CRIMES ACT which, by itself,

carried a higher maximum penalty. We do not

suggest that there is any great benefit to be

obtained by go~ to overseas or interstate sentences

to obtain a tariff. However, the sentencing

judge did do it and, in our submission, by doing

it, he fell into an error of accepting

being impressed by a tariff of between two and

seven years which was totally inappropriate but

the inappropriateness of it probably comes not

so much from the fact that he was talking about

that particular range of sentences for an

individual offence but the fact that the Crown's

case was a case which involved an allegation of

a course of criminality, as Mr Justice Lee said,
over a lengthy period of time which was a

substantial criminality for the reasons that

Mr Justice Lee gave and I will not address

this Court on, again,today: But it was our

submission then and it is our submission again

now that that fact by itself demonstrated a

grave error in assessing the situation by the

sentencing judge and justified the intervention
of the Court of Criminal Appeal. Those are

the submissions I wish to make.

MASON CJ: Thank you, Mr Blanch. Yes, Mr James.

MR JAMES:  I might, Your Honours, in reply very quickly

with the last submission; that was agitated by

the Crown before the Court of Criminal Appeal.

It found no favour with any of the justices and

indeed, in our submission, on a proper reading

of page 359 to page 362, His Honour did not

define any such tariff at all. He merely

indicated that were he not constrained by

authority he would have been sentencing at a

lower level than Mr Justice Carruthers and

proceeded to pass sentences in recognition of

what the Court of Criminal Appeal had done.

(Continued on page 42)

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MR JAMES (continuing): Might I give Your Honour Mr Justice Toohey

in answer to the question you asked of my learned	'
friend, two passages.	Those are at page 416,

lines 1 to 10, and I had drawn the Court's attention

to that passage previously. That is the passage
that connnences on 415, after dealing with LOWE.

That case is not directly in point here but the observation of Mason J at p 610 set out

below in my view, states a proposition which

is also applicable to the case of a sentence

passed upon a co-offender which is lower

than that passed upon another co-offender

whose crime involves less criminality.

The passage is used to support the proposition.

The intervention of the court in the present

case, where there is manifest discrepancy between the sentence passed on Harris and the sentence passed on the respondent, is necessary to disclose publicly that the
crime connnitted by the respondent was more

heinous than that committed by Harris who

was the most culpable ..... and to remove

forever, by imposing a sentence which does

reflect the respective degrees of criminality

in the offences of the respondent and Harris,

any suggestion that the criminal justice system

has been allowed to operate to favour a

Minister of the Crown but not a private

citizen.

Your Honours, at page 414, in leading into that
matter, His Honour had said, at line 21, after

dealing with the trial judge's discretion:

but in his exercise of his own discretion

in the matter his Honour was bound, to ensure

that Jackson was sentenced for the

criminality involved in his conduct and of

necessity this required him to consider the

appellant's conduct as much more heinous than

that of Harris and sentence accordingly.

(Continued on page 43)

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Jackson

MR JAMES (continuing): In our submission, His Honour did.

In short, even if his Honour looked upon the sentence of nine years imposed upon

Harris and confirmed in the Court of

Criminal Appeal, as not being an absolute
guide which he must follow, the sentence
of seven and a half years imposed upon the

respondent could never be said to be one

which properly allowed for the respective

criminality of the respondent and Harris.

And His Honour then turned to what the trial

judge had said about a general rule.

Your Honours, in our submission, that

exemplifies the error in these proceedings.

As Your Honour Mr Justice Dawson did remark,

it is a matter of comparable relativity but that

relativity is defined by what is before each

individual trial judge. Jackson could not be

heard to debate the general level of sentence

or his place in them before Mr Justice Carruthers.

Your Honours, as to the questions raised

by my friend concerning facts, we should indicate

that there was extensive material before

Mr Justice Carruthers showing a criminality on

Harris' part in the further conduct of this

conspiracy and in other ways disclosed on the

substantial criminality.

tape recording which went well beyond anything of

Now, that is not something that Jackson

was ever in a position to debate or deal with.

BRENNAN J:  But this was a conspiracy to get Jackson to

exercise his powers.

MR JAMES:	Yes, it was.
BRENNAN J:	So whatever was said about Harris in the other

proceedings was said within that context?

MR JAMES:  Yes, but there was material divulged showing

that Harris was engaged in league with Hakim

and George and Hilton to do all manner of things

including recruiting clients for a particular

solicitor, by payments of various kinds, breaches

of the gaol regulations, the activities with

the former prisoner, various other matters, none

of which Jackson had any culpability in and nor
was he ever in a position to submit, "His sentence

reflects some of that, it should not wash over

on to me."

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Jackson

MR JAMES (continuing):  I am reminded, Your Honours, and

perhaps this is the last thing that I should say

is that Mr Justice Roden in what he found about

the prisoner's former position did accept that

on the material before him and for that for

which he was sentencing, the prisoner was more

culpable and defined a range with no disregard

of relativity as that relativity was exposed

before him and, in our submission, that is the

proper thing to do. Unless I can assist the

Court further, they are the submissions.

MASON CJ:  Thank you, Mr James. The Court will take a

short adjournme111t in order to consider the course

it will take in this matter.

AT 11. 49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.54 AM:

MASON CJ: What I am about to say expresses the view of a

majority of the Court. In the light of the gravity

of the offence of which the applicant was convicted,

it was well open to the Court of Criminal Appeal to

conclude that the sentence imposed upon him by the

trial judge was manifestly inadequate. That being

so, we are not persuaded that there was any error

of principle on the part of the majority in the

Court of Criminal Appeal.

We reject the submission that in increasing the

sentence imposed upon the applicant the majority

departed from the settled principles governing the

avoidance of disparity in sentencing. The application

for special leave is, therefore, refused.

next Tuesday. The Court will now adjourn until 10.15 am

AT 11.55 AM THE MATTER WAS ADJOURNED SINE DIE

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