Johnson v The Queen
[2003] HCATrans 417
[2003] HCATrans 417
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P44 of 2003
B e t w e e n -
CHAD JOHNSON
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 22 OCTOBER 2003, AT 10.02 AM
(Continued from 21/10/03)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Bugg.
MR BUGG: Thank you. If I could just very quickly recap on some matters which I covered yesterday afternoon. His Honour, we say, did apply Commonwealth provisions, and I refer again to the passages from the appeal book. The requirement which the appellant argues for that an actual date to be given for the commencement of a cumulative sentence is, we say, not required in the Act. The explanatory memorandum clearly indicates a broad basis upon which that cumulative sentencing process should take place.
Interestingly, one of the authorities referred to by Justice McHugh in Postiglione, Holder and Johnston [1983] 3 NSWLR 245 – it is not in the authorities but just examining that. It is a decision of the Court of Criminal Appeal of New South Wales. There the court commented upon the process of trying to fix a date specific for the commencement of a cumulative sentence. If I may refer to the headnote and then give your Honours the passages from the judgments from which that headnote is drawn. The headnote says:
When sentencing a person already serving a sentence, it is inappropriate to try to calculate the likely remission release date and then to use that or some other specified future date from which to commence the sentence then to be imposed, the proper form of order being to impose a sentence to be served concurrently with the unexpired balance of the previous sentence or to have the sentence commence at the expiration of the sentence then being served.
The passages from Holder at page 245 is the commencement of the report in the New South Wales Law Reports, page 257 from the judgment of the then Chief Justice Sir Laurence Street at paragraph D where his Honour refers to R v Maggs from the Court of Criminal Appeal, an unreported judgment on 13 November 1981. The passage from Justice of Appeal Priestley is on page 272.
GLEESON CJ: But there would be a very simple practical reason for that problem. Remissions could be given in New South Wales at the time on account of good behaviour, for example. How would you know whether a prisoner was going to be of good behaviour? Or remissions used to be given because of a visit of the Queen.
MR BUGG: I doubt that would occur now, your Honour, but, yes, I appreciate your Honour’s point.
KIRBY J: Why do you say that? Of course it will occur now. I would hope so. Why would it not?
MR BUGG: Well, it is unlikely within – it was not a flippancy, your Honour. There are much tighter restrictions on the administrative capacity of prison authorities to grant either some remission of the length of a sentence or to provide release.
KIRBY J: I thought it was done by a regulation in some way. I am not sure. Anyway, it is a small matter.
MR BUGG: The one transaction rule is not a hard and fast rule, we say. Even the State legislation to which my learned friend referred ‑ ‑ ‑
GUMMOW J: Is it a rule at all?
MR BUGG: It has certainly not been given judicial recognition as a rule, but a factor which is taken into account more in recognition of, or application of, the totality principle.
GLEESON CJ: Well, is it anything more than a discretion, a discretionary basis, that is sometimes regarded as being appropriate to recognise having regard to the circumstances of a particular offence. An expression that used to be used by trial judges, for example, was that a degree of leniency would be extended to take account of the circumstance that although a number of offences were committed they were part of one episode of criminality.
MR BUGG: Yes.
GLEESON CJ: It is very difficult to put metes and bounds on a discretion of that kind.
MR BUGG: Yes.
GUMMOW J: Now, the mention of discretion raises this problem, does it not? House v The King was in fact a sentencing appeal – one tends to forget that. One of the grounds of interference with the exercise of discretion is a mistaking of the facts. Now, we are not sitting on appeal from the primary judge; we are sitting on appeal from the Full Court here in Perth. What is the significance of the apparent error by the Chief Justice in various respects as to material facts, for us? Does that enliven the visitorial jurisdiction we have, or what do we do with it? Just ignore it?
MR BUGG: I would submit not, your Honour, because whilst I accept all those passages to which my learned friend referred yesterday highlight an error of the juxtaposition of what the court was there considering, and that is two counts of attempt to obtain possession, there was no actual possession of an actual drug. But the reality is that the sentence, as my learned friend said yesterday, or the range of sentences is the same for actual possession as attempt possession under the Customs Act. We address that in paragraph 5.21 of the submissions.
If I could, before just drawing your Honours’ attention to that, take you to paragraph 34 of the judgment of the Court of Criminal Appeal on page 69 of the appeal book, where his Honour having made those errors of fact in his recitation of the factual situation which the sentencing judge was dealing with, said:
It was submitted that the learned Judge was in error because he did not address in his reasons for decision whether the applicant had been aware ‑
et cetera. His Honour then clearly focuses on the correct factual situation. Whilst there are errors contained within the text of his Honour’s reasons, I would submit that passages such as that in paragraph 34, and also paragraph 39, where his Honour said:
In the present case, there were two separate offences which were committed, although in a real sense there was only one transaction of importation. It involved two separate quantities of two separate drugs. It necessarily involved two separate offences.
And, of course, he pleaded guilty to ‑ ‑ ‑
KIRBY J: Well, there is no question that there were two offences and there is no question that he pleaded guilty to them. The question is whether the criminality of the acts of a person who says he did not know what the drugs were must take into account the common features of the one act of carrying. I mean, it is the one act that he was engaged in. Just to treat them as if there were two acts of carrying, or an act of carrying two entirely separate parcels or knowing carriage of two different drugs, it just seems to me to be seriously wrong when you are looking at how you deal with the issue of concurrence.
MR BUGG: Your Honour, we would submit that the learned sentencing judge in the manner in which he dealt with the matter, that is ‑ ‑ ‑
GUMMOW J: Yes, but we are not sitting on appeal from him. We are sitting on appeal from the Court of Criminal Appeal of Western Australia.
MR BUGG: I appreciate that, your Honour, and the Court of Criminal Appeal picked up that reasoning process, and that was where his Honour said, “Look, I have a plea of guilty to count 1, attempt to possess ecstasy. The plea of guilty to count 2, attempt to possess cocaine, adds to the seriousness of count 1”, and that was a point that was conceded before the sentencing judge and therefore a position which the Court of Criminal Appeal, in my submission, could deal with on the basis of an acceptance that there was an added factor of seriousness in the fact that there were two drugs and they had to be dealt with by an indictment containing two counts and, therefore, in that portion of the sentencing judge’s disposition of it and as picked up by the Court of Criminal Appeal in its reasons, both courts were entitled to treat that factor as an added factor of seriousness, which, as I say, was conceded before the sentencing judge.
KIRBY J: As Justice Gummow has pointed out, there are mistakes, factual mistakes. Now, I understand the point you make, that in the end they do not matter because the Chief Justice, who gave the only reasons that are relevant, came back to, you say, the correct thing, and we will just have to consider that. But the mistakes enliven our power to disturb the decision of the Court of Criminal Appeal, but that is not enough because we have to then give some guidance, if the matter is to go back, as to how the matter is to be dealt with properly. That really is why special leave was granted. It was not granted simply because there were some factual mistakes in the Court of Criminal Appeal’s reasons. So we cannot really avoid the two points of principle, totality and one transaction, which are raised by Mr Grace’s submissions.
MR BUGG: Yes.
GLEESON CJ: What do you say to Mr Grace’s submission that there is such a thing as a one transaction rule?
MR BUGG: I would not accept it as a rule, your Honour.
GLEESON CJ: Well, we are dealing with a matter of discretion, are we not, and by hypothesis – I think this Court has said as much quite recently – a discretionary matter in which factors can point in different directions? Indeed, a factor that points in one direction in one case may point in a different direction in a different case.
MR BUGG: Yes, which is the very point from the extended passage from Fox and Freiberg that I referred your Honours to yesterday, where they say that very thing.
GLEESON CJ: I think Justice Callinan pointed out yesterday, going back to the language of the statute, which is where we start, section 16(2)(c), the fact that you pay regard to a course of conduct might in one case be an argument in favour of a measure of leniency and it might in another case be an argument in favour of a measure of increased severity.
MR BUGG: Yes.
KIRBY J: But whereas in this case you have a person who has no relevant criminal background in drugs, who gives evidence which was accepted by the sentencing judge, who is engaged in one act of carrying. There is no doubt that courts have talked of a one transaction rule. Now, that may overstate it, but it is relevant to the concurrence question as to whether, viewed as a whole, the conduct is one transaction. I mean, his moral blame was in not being concerned as to what was in the package. That point was made yesterday. He did not ostensibly care what it was, what the drugs were, but the fact is that it was one act on his part.
MR BUGG: Yes. Your Honour has both today and yesterday referred to the fact that the appellant was without any relevant prior convictions. Might I just refer ‑ ‑ ‑
KIRBY J: He had a GBH, did he not?
MR BUGG: Yes.
KIRBY J: There was one conviction and ‑ ‑ ‑
MR BUGG: But certainly no drug‑related convictions.
KIRBY J: No.
MR BUGG: The Court of Criminal Appeal in New South Wales, when your Honour the Chief Justice was President, in the matter of Ferrer‑Esis (1991) 55 A Crim R 231 made comment about that, at page 238 about halfway down the page, where Justice Hunt in his judgment said:
The judge did take into account the circumstance that the respondent had no previous convictions. That was an error. Couriers are usually selected because they have no criminal records, and this Court has on many occasions said that the usual leniency extended to first offenders does not ordinarily benefit couriers.
Of course, that was the very point that was made by the prosecutor to the learned sentencing judge in this matter, and picked up by the Court of Criminal Appeal. So the situation of the innocence, shall we say, of the person without prior convictions who is careless that a money‑making activity he has become involved in, as to what drug or drugs or quantity it is that he is moving, in my submission, is just as much a culpability as it would seem your Honour would suggest on another face might be seen as a mitigating factor for the sentencing court.
The Commonwealth Parliament chose to ignore the Australian Law Reform Commission recommendation in relation to the question of concurrence and the explanatory memorandum, which I referred to the passage from the report of the decision of the Court of Criminal Appeal in this matter, clearly demonstrates that the facility of cumulative sentences arising out of one criminal episode has been left open by the Commonwealth Parliament here.
KIRBY J: Yes, but that might be just as significant as leaving out general deterrence. It would be hard to concede that that was an irrelevant consideration.
MR BUGG: It certainly imposes no obligation of concurrence upon any sentencing court dealing with the matter under Part 1B, if your Honour pleases.
GLEESON CJ: Section 19 contemplates partial cumulation.
MR BUGG: Yes.
GLEESON CJ: What do you say would be an example of a case appropriate for partial cumulation?
MR BUGG: If I could use a State example, where there are obviously other interests as well, where the court wants to demonstrate both a sentencing process where some punishment has been meted out in relation to a series of criminal acts where you have physical harm to victims, say, for instance, a serial rapist. So your first penalty is six years complete. The second sentence, or the second count, is sentenced six years, three years of which will be cumulative with the first sentence.
GLEESON CJ: Does not the express statutory provision for partial cumulation indicate a legislative intent to extend the discretion available to the sentencing judge? Is that not the entire point of having a provision for partial cumulation, so that you are not stuck with a choice between either concurrence or accumulation?
MR BUGG: Yes, and that ‑ ‑ ‑
KIRBY J: But it has to be principled. The judge is not an eastern potentate. He has to act in a principled way. Mr Grace agreed yesterday that had the appellant attacked the police officers who tried to arrest him once he was caught, that would have been an appropriate case for cumulation on top of concurrence, as he puts it, for the drug offences. So that would be a principled way to deal with the matter, but you cannot just say the judge has a completely open‑ended and unreviewable discretion. That is not the way the law operates in this country.
GLEESON CJ: No, you just say he has a discretion. Did the Australian Law Reform Commission, when it was recommending the concurrence presumption, at the same time recommend a provision for partial accumulation?
MR BUGG: I cannot assist your Honour at this moment.
GLEESON CJ: Would you mind just checking on that?
MR BUGG: Yes.
GLEESON CJ: While you are checking on it, would you mind, if the Australian Law Reform Commission did recommend partial accumulation, telling us the basis on which it made that recommendation, the reason it advanced in favour of it.
MR BUGG: Yes.
KIRBY J: Perhaps if we could have the copy of the pages where it was recommended that there be a provision for concurrent sentences which Parliament did not see fit to enact.
MR BUGG: Yes, I will.
KIRBY J: If we could just have those pages where they discussed that, that would be helpful.
MR BUGG: Report No 44 addresses the issue of cumulative sentences on page 33 at paragraph 66.
KIRBY J: Well, we do, in fact, have some pages of ALRC 44.
MR BUGG: The explanatory memorandum passage is in the report of the Chief Justice’s decision in this matter. The first paragraph is:
“This section deals with cumulative, partly cumulative and concurrent sentences of imprisonment. It will replace existing provisions contained in section 19 of the Principal Act. The existing section 19 only deals with cumulative sentences of imprisonment. It also does not allow a federal sentence to be partly cumulative on another federal sentence.
So just to pick up what your Honour the Chief Justice was saying, clearly there that was a broadening, shall we say, by definition, of the general sentencing discretion.
I certainly have not suggested, Justice Kirby, in any of the submissions I have made that any sentencing judge in this country would be entitled to behave as a potentate, but what I have been responding to is the submission “in an unprincipled way” or “as a potentate”, as we would commonly interpret that to mean. I have been responding to my learned friend’s submission that there was, in a sense, a presumption of concurrency which could be read into this legislation.
KIRBY J: Yes, but when it is all analysed, when it comes down to the factual ingredients, you seem to say the reason for treating the one act of carriage as separate is simply because there are separate offences, which is a highly technical issue not addressed to the actual act of the accused.
MR BUGG: No, with respect, your Honour, what ‑ ‑ ‑
KIRBY J: He has been charged with these offences. He has pled guilty to the offences and there were, in fact, different drugs. All of those, I accept, are matters that have to be taken into account, but when you are looking at the actual actus reus it is his carrying a garbage bag – one act.
MR BUGG: That act of carrying a garbage bag would not bring him within the provisions of the Customs Act. What brings him within the provisions of the Customs Act was, as he acknowledged by his plea, that he attempted to take possession of ecstasy and he attempted to take possession of cocaine. Now, looked at in that light, it is not just the act of taking possession of the bag, it is what he has pleaded guilty to, and they are two separate acts in the sense that one was an attempt to take possession of one drug and one was an attempt to take possession of the other. I have not suggested that he should be sentenced in a cumulative sense for two totally separate acts.
What we have suggested to the sentencing judge was, and as the sentencing judge obtained an acknowledgment and approval for from counsel representing the appellant, was that the ecstasy viewed on its own warranted a particular sentence. That sentence and the way in which the court dealt with the matter in relation to count 2 had to be affected by the added factor of seriousness of the addition of the cocaine.
Your Honours, I have already exceeded my estimated time of yesterday afternoon, but if I could just make one final comment about something that occurred yesterday and that was the Chief Justice’s reference to the sentence in El Karhani. Of course, what must be borne in mind there was that there was already a one‑third adjustment to that sentence downwards, so you would have to add 50 per cent to the recorded sentence in El Karhani to bring it back up to the remission reduction that occurred in New South Wales for El Karhani which, of course, does not occur here. You have the sentence on the top. The actual recorded head sentence in the report of El Karhani has already been affected by a downwards reduction of one‑third.
KIRBY J: By the way, we will still need the extracts from ALRC 44 because the only extract we have is of the summary of the recommendations. It does not have the actual content of those pages. If they could be copied, I think that might be helpful.
MR BUGG: Yes. Rather than delay proceedings here, I will undertake to provide that to the Court. I would conclude just by some reference to the decision of this Court in Pearce and the interplay between Pearce and Mill because it is our submission that Pearce ‑ ‑ ‑
KIRBY J: Could I just ask you, before you just pass on to this, one last question on that last point of cumulation and concurrence. If we are in a position that the Parliament has not enacted the recommendation of the Law Reform Commission, as we are, and if we therefore have a statute which has to be interpreted but which, as in El Karhani, permits additional sentencing principles, should there not be, is there not a common law principle that favours concurrence in a factual situation of the present kind on the two bases which I mentioned yesterday, the looking at the totality of the criminality of the offender and looking at the interest of society in not depriving its citizens of their liberty beyond that which is necessary in the particular case. These are issues of principle policy, if you like, which might suggest that there is or ought to be such a principle in the common law of sentencing.
MR BUGG: I would say a factor, not a principle, your Honour, that when you start to talk about an episode of offending you obviously must consider totality. You obviously must consider, and although it is no longer in common parlance, the potential to have a crushing effect upon the prisoner so that there is no great incentive to rehabilitate and all those things, but the ‑ ‑ ‑
KIRBY J: Crushing is not the only reason for totality.
MR BUGG: I know, and I am sorry, your Honour, I do not confine myself to that, but the question of the use of concurrence in the imposition of sentencing is one factor which can be utilised by the sentencing judge in the exercise of his or her discretion in arriving at an appropriate sentence in all the circumstances. The governing principle is totality. A factor in that governing principle, which is part of the broad array of factors that have come to play in the exercise of the sentencing discretion is concurrence.
KIRBY J: I am sorry, I interrupted your proceeding to Pearce.
MR BUGG: I was going to take your Honours to Pearce (1998) 194 CLR 610. The passage commences at the foot of page 623, paragraph 45:
To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix –
and the real question is whether or not their Honours in saying “must fix” were laying down a hard and fast rule that a sentencing judge in dealing with a multiple offending situation and sentencing a person convicted of multiple offences must follow that course or, because the reference at the end of that passage, footnote (55), is to this Court’s decision in Mill, whether the alternative approach is available and that is for the sentencing judge to first look at the overall criminality that he or she is about to sentence, fix in his or her mind what is an appropriate sentence in response to that overall criminality and then make the adjustments within the body of the offences which then have to be sentenced. That really is the criticism which is made by the appellant of the way in which the learned sentencing judge dealt with this matter.
Clearly it was exercising his mind as to what the ultimate head sentence would be. When one reads that passage from Pearce, it would appear that there is an imperative within it by use of the word “must”, but when one goes back to the passage from Mill, the alternative is available and ‑ ‑ ‑
GLEESON CJ: Well, the view seems to have taken hold in some places that there is an inconsistency between Pearce and Mill, but Mill was cited in Pearce as authority for the proposition stated in Pearce.
MR BUGG: Interestingly, between those two decisions, this Court dealt with Postiglione 189 CLR 295 and if I could take your Honours to that, in particular the judgment of Justice McHugh commencing at the foot of page 307 where his Honour says:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.
His Honour then refers to a passage from the judgment of Chief Justice King in Rossi but ‑ ‑ ‑
GLEESON CJ: But the question remains whether it is still permissible for sentencing judges to respond to that consideration in either of the two alternative ways approved in Mill, or whether Pearce deprives sentencing judges of one of the two alternatives approved in Mill.
MR BUGG: Yes, and that passage that I have just referred you to from Justice McHugh from the footnote refers to the precise passage from Mill where the two approaches are available and if the remainder of the passage, halfway down page 308, is considered by your Honours it is my submission that the totality principle in the way in which Justice McHugh considers it after the quotation from Chief Justice King in Rossi where he says:
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
It would appear from that passage that his Honour still left open the alternative in Mill. The question, in my submission, is whether or not ‑ ‑ ‑
GLEESON CJ: Just excuse me, where is that passage again?
MR BUGG: Starting at the top of page 308 and it is immediately after the quotation from Chief Justice King’s judgment in Rossi.
GLEESON CJ: So that sentence beginning “Where necessary” accepts the alternative proposed in Mill which is said by some to have been eliminated by Pearce?
MR BUGG: Yes, and particularly when one considers that it is supported in his Honour’s judgment by reference to the Court of Criminal Appeal decision in Holder, to which I took your Honours at the outset of my submissions this morning. The second point from Holder – once again if I may be forgiven for referring briefly to the headnote so that your Honours have some idea. That decision is also authority for the proposition that the overall criminality involved in the offence should be evaluated, not at the end of the review of all the sentences, but as part of the sentencing process.
GLEESON CJ: Am I right in thinking that some judges in Australia have taken the view that the passage in Pearce to which you referred earlier is contradictory of the passage in Mill which says there are two alternatives, either of which can be pursued?
MR BUGG: Yes. There has been acceptance, your Honour, of the proposition that Pearce has narrowed Mill.
GLEESON CJ: By depriving a sentencing judge of one of two alternatives said to be available in Mill.
MR BUGG: Yes, and that is the proposition argued by the appellant here before your Honours and the consideration of it by the Court of Criminal Appeal in Western Australia is dealt with in some detail in the judgment of the court in this matter, but particularly the two decisions of Justice Ipp in Kilner and Heryadi and both those substantial passages from his Honour’s judgments in those two decisions are referred to by the Chief Justice.
What his Honour tried to do there was to distinguish Pearce in two ways. Firstly, he considered that Pearce had to be governed by the circumstances of the sentencing exercise which this Court was there confronted with, namely a person who had been convicted of two offences which contained the ingredient of causing grievous bodily harm. Although the sentences for both counts in that indictment were made concurrent, this Court determined that there the sentencing judge had fallen into error and that passage really, his Honour Justice Ipp said, followed the court’s concern about how a sentencing judge should tease out and distil the matters before him or her where you are dealing with issues of double jeopardy.
Where one has to consider double jeopardy, then this exercise of, first of all, looking at each matter, evaluate each count, evaluating its criminality and separately evaluating it before you embark upon looking at the overall criminality and arriving at a sentence which satisfies the totality principle is right in those cases, but there are cases – and we say this is one – where that approach is not necessary and in the circumstances not appropriate because you can look at the overall criminality, and I go back to the discussion I just had with Justice Kirby, where the overall criminality of this conduct was there were two drugs.
GLEESON CJ: Well, I have to say that from my experience the proposition in Mill was not a novel proposition. It was stated by this Court, but I had seen it stated dozens of times by intermediate courts of appeal before Mill and it would be surprising if it was intended to be overruled by a passage in Pearce that cited Mill as authority for the proposition stated in Pearce.
MR BUGG: Yes, and particularly where one of the Justices who was part of that joint judgment had in Postiglione referred to the precise passage from Mill and made no criticism of it in terms of its breadth. They are the only submissions I ‑ ‑ ‑
GLEESON CJ: Yes, thank you, Mr Bugg. Yes, Mr Grace.
MR GRACE: On that last issue, I remind your Honours, as I think my learned friend has just done, just to be sure, in the joint judgment of their Honours Justices McHugh, Hayne and Callinan in Pearce, in that particular passage which has been oft quoted, that is, that a sentencer must fix an appropriate sentence for each offence, in support of that proposition Mill was quoted at footnote (49) in paragraph 45. So when one considers what Justice McHugh had to say in Postiglione and compare it with what he had to say in Pearce, it represents a narrowing of approach.
GLEESON CJ: When you say “narrowing”, your argument is that Pearce is, in that respect, inconsistent with Mill?
MR GRACE: What it does is it qualifies Mill in that the proper application of sentencing principle requires that the former approach identified in that passage referred to in Mill is the one to be applied.
GLEESON CJ: And not the second ‑ ‑ ‑
MR GRACE: And not the second.
GLEESON CJ: ‑ ‑ ‑ identified in Mill as an available approach.
MR GRACE: Yes, and consistently with the decision in Pearce ‑ ‑ ‑
GLEESON CJ: Well, on that basis, Pearce overrules Mill, does it not? How else can you put it? Mill says sentencing judges can do it two ways and, on your argument, Pearce says they can only do it one way.
MR GRACE: Yes.
GLEESON CJ: So, if your argument is right, Pearce overrules Mill.
MR GRACE: Yes.
GLEESON CJ: Citing Mill as authority.
MR GRACE: Yes. That approach in Pearce has now been adopted in various jurisdictions in Australia. For example, in New South Wales in the case of Itamua [2000] NSWCCA 502, unreported, at paragraph 47 and 48, the court there considered the application of Pearce and said this in respect of concurrent sentences of three years for various offences:
The judge in his reasons stated that he was reflecting the total criminality in the sentence he was imposing on Count 14. That is not an approach which Pearce and Mill permit. When the judge dealt with these sentences on 5 March 1999 he did not have the power to impose sentences that were partly concurrent and partly cumulative. That limitation has been overcome –
and I will not read on.
GLEESON CJ: Does this case say that Pearce is inconsistent with Mill?
MR GRACE: Well, it does in part, because if your Honour goes back to the previous page and paragraph 42, the lengthy quotation from Pearce is set out and in paragraph 43 his Honour says:
The course taken by the sentencing judge in the present case reflected the practice which existed in New South Wales prior to Pearce. Indeed, the Court of Criminal Appeal of this State had made it clear that on sentence appeals it was only concerned with the effective total of the sentences involved and not with the matter in which individual sentences were structured. That approach is no longer open.
Then there is a quotation from Pearce and then at paragraph 44 a quotation from Mill. In paragraph 45 his Honour goes on to say:
The approach taken in Pearce has special force where the major sentence has been imposed on one count and subsequently the conviction on that count has been quashed and either a verdict of acquittal entered or a new trial ordered. This brings into sharp focus the correctness of the sentences imposed on the other counts.
GLEESON CJ: Mr Grace, we have to face up top this, because it is rather important for us. I understand you to be submitting that Pearce overrules Mill, in that Mill says two alternative courses are open and Pearce says, no, they are not, only one of them is open. That is your submission, is it not?
MR GRACE: Yes.
GLEESON CJ: Has that been faced up to in this decision, that is, Itamua?
MR GRACE: Not in terms, but Itamua has been followed in its approach in subsequent decisions of the court. The latest one I refer to is the matter of Killick [2002] NSWCCA 1. At paragraphs 69, 70 and 71 Pearce and Mill are referred to, but not the analysis that your Honour was talking about in your question to me. There does not appear to have been any analysis of the apparent conflict between the statements in Mill and in Pearce, other than an acceptance, impliedly, or at least in the passages that I have read somewhat explicitly, as to the narrowing of the approach in Pearce of the principle enunciated in Mill.
GLEESON CJ: But the conflict which you assert was faced up to by the Western Australian court in Kilner and in this case?
MR GRACE: Yes. If I could just briefly deal with the issue of the one transaction rule, so‑called. Both the authors of Fox and Freiberg and Dr Thomas in his 2nd edition of Principles of Sentencing refer to it as a rule. At page 53 in that edition of Thomas’ text he describes the one transaction rule thus:
The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive . . .
The essence of the one-transaction rule appears to be that consecutive sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest.
KIRBY J: But can that be stated in that generality? What about the problem Mr Bugg mentioned of couriers who came into the country with just short of the quantity of a prohibited drug that would require the imposition of life imprisonment? Now, in such a case, would one necessarily apply such a rule? Could one apply it as a rule or as a factor to be taken into account?
MR GRACE: I put forward the suggestion in the written submissions that the appropriate way of dealing with that situation is to, firstly, deal with the sentence in respect of each offence on the basis that it is not an isolated event. That would be one way of dealing with the issue. A second way, which has been discussed in argument, is to use it as a factor to be taken into account, coupled with the evidence as to the offender’s knowledge of what he was carrying, which is part and parcel of the circumstances surrounding this case.
If I could just go back to Pearce briefly and postulate this as a somewhat of an analogous situation to the situation mentioned in Pearce. At paragraph 40 in the joint judgment of Justices McHugh, Hayne and Callinan their Honours said this:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
So that if section 233B of the Customs Act was framed in a way which would have caught the conduct of the appellant in the attempted possession of the narcotic goods involved in this case in a global sense rather than having to specify each particular amount of drugs which would then, in turn, result in separate counts having to be drawn and pleaded, then the offender would have been convicted of one incursion into the criminal behaviour.
The next point I want to deal with very briefly is my learned friend, the Director, referred to the case of Ferrer-Esis and comments, I think, by your Honour the Chief Justice in respect of the selection of a courier who does not have prior convictions as being a typical method. That has to be distinguished from this situation, because when your Honour was talking about couriers being recruited with good behaviour records, you are talking about those who run the gauntlet of customs not being brought under notice. This is a totally different situation. This is suburban Perth where a young boy has been recruited to do this, so the presence or absence of prior convictions is irrelevant to the issue of detection.
The next matter I want to take your Honours to is a matter your Honour Justice Callinan raised yesterday of Weininger 196 ALR 451, a decision this Court delivered on 2 April of this year. At paragraph [112] your Honour Justice Callinan said:
It is necessary at this point to draw attention to the differences in language between paras (b) and (c) of subs (2) [of s 16A]. The fact that the former provision refers to “other offences” and the latter to a “course of conduct” provides a basis for distinguishing between them, and for taking into account under the latter, relevant conduct, albeit that it might involve criminal acts which in turn might not have resulted in charged and established, (by verdict or plea) facts constituting other offences.
That is the reference that your Honour mentioned yesterday to that particular subsection.
I hand up to your Honours, as requested yesterday, a supplementary appeal book which contains copies of the transcripts of the recorded conversations between the police and the appellant.
GLEESON CJ: Thank you.
MR GRACE: I also want to ‑ ‑ ‑
KIRBY J: Is there anything you want to say about those conversations? Is there anything ‑ ‑ ‑
MR GRACE: No, they speak for themselves. There is apparently no mention of the word “ecstasy” on the part of the appellant. He does concede in the conversations that he was not sure what he was going to be picking up, but he suspects they were drugs.
KIRBY J: Well, he would have to be pretty dumb to think he was going to get thousands of dollars, $2,000, for picking up aspirin.
MR GRACE: Yes, there is no quarrel with that proposition. Finally, could I take your Honours to two aspects of the record in this matter which point, we submit, to clear sentencing error. Page 41 of the appeal book ‑ ‑ ‑
KIRBY J: Is this on the part of the sentencing judge or on the part of the Court of Criminal Appeal?
MR GRACE: On the part of the sentencing judge, which was not corrected by the Court of Criminal Appeal. My learned friend, the Director, yesterday disavowed the proposition that the learned sentencing judge had wandered into the area of State sentencing practices, but it is clear from the passage at the bottom of page 41 and the top of page 42, where his Honour was imposing 10 years imprisonment for the ecstasy offence and then five years imprisonment cumulative for the cocaine offence, that when you get to the second paragraph of deducting three and a half years because of the fast‑track plea of guilty, he is entering into the area of a two‑tiered approach to sentencing, which has been, in cases such as Wong, disavowed by this Court. I appreciate that your Honour Justice Kirby might have a different view about the two-tiered ‑ ‑ ‑
KIRBY J: I certainly do.
MR GRACE: ‑ ‑ ‑approach, but certainly the majority of the Judges of this Court have expressed views as to the undesirability, if not erroneous ‑ ‑ ‑
KIRBY J: I do not think the point has ever come up for determination. It is true that the view Justice Hayne propounded in earlier cases gathered in different cases probably what is a majority of the Court at present, but I am not sure that the issue has been formally determined by the Court, has it?
MR GRACE: Yes. Well, the two cases that I refer to in support of that proposition that the majority of this Court has ‑ ‑ ‑
KIRBY J: This is the theory that you just have an instinctive reaction, you do not worry about the structuring of ‑ ‑ ‑
GLEESON CJ: If you are going to have tiers, why would you have only two of them? Why would you not have a dozen?
MR GRACE: And both Wong’s Case at paragraphs 71 and 74 to 76 inclusive and the case of AB v The Queen ‑ ‑ ‑
KIRBY J: AB?
MR GRACE: AB v The Queen.
KIRBY J: What are the citations of those cases, just in case they are relevant?
MR GRACE: 198 CLR 111 at paragraphs 15 to 16 per Justice McHugh, albeit he was in dissent in that case, but not in relation to that particular issue.
KIRBY J: That is not the way one determines and finds a binding rule. You have to ignore judges in dissent. This is just rudimentary stuff. That is why I said I did not believe that this has been finally determined by the Court. Anyway, if you want to put something in about this, I think that is the way, rather than hold us up over this. It seems a minor matter.
MR GRACE: Yes.
KIRBY J: Is it a minor matter? It just seems a rather minor matter in this case. Correct me if I am wrong.
MR GRACE: Well, it meets the proposition that the learned sentencing judge had not wandered into State sentencing practices, and that is a clear State sentencing practice which has been acknowledged in many decisions.
The final point I want to make is reflective of what appears at paragraph 39 in the judgment of the court below. Our learned friend sought to defend the conclusion made at paragraph 39 where his Honour the Chief Justice said:
In the present case, there were two separate offences which were committed, although in a real sense there was only one transaction of importation. It involved two separate quantities of two separate drugs.
Now, that statement was a product of the mischaracterisation of the offending, because his Honour immediately prior to that comment had referred to what Acting Justice Einfeld had said in Pieri referring to the one transaction rule. His Honour accepted that there was one transaction of importation involved in this case, but he did not, for some unexplainable reason, consider that it was one transaction of carrying. The reason for that, we submit, is because of his Honour’s misdirections to himself in relation to the facts of the case, that is, the mischaracterisation of the offences which I have previously identified. That flowed through to that conclusion at paragraph 39, which we say was wrong. Those are the matters.
GLEESON CJ: Thank you. We will reserve our decision in this matter.
AT 10.59 AM THE MATTER WAS ADJOURNED
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