Johnson v The Queen

[2003] HCATrans 416

[2003] HCATrans 416

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 TUESDAY, 21 OCTOBER 2003, AT 12.36 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR M.L. TUDORI for the appellant.  (instructed by Michael Tudori & Associates)

GLEESON CJ:   And we will note that Mr Bugg, QC appears with Mr Renton for the respondent.  Yes, Mr Grace.

KIRBY J:   Have you heard from Mr Bugg?  Do you know if he is in the precincts or ‑ ‑ ‑

MR GRACE:   I have no idea, your Honour.  I have not seen him.

GLEESON CJ:   Never mind.  Go ahead.

MR GRACE:   The Deputy Registrar informs me that Mr Bugg will be here in five minutes.

GLEESON CJ:   Good.  Go ahead.

MR GRACE:   Your Honours, in this case the provisions of Part 1B of the Crimes Act 1914 (Cth) as supplemented by the common law were applicable in the sentencing of the appellant.

KIRBY J:   Now, that was drawn to the notice of the Full Court, was it not?  It was referred to by the primary judge I think.

MR GRACE:   Yes.

KIRBY J:   It is mentioned in his reasons?

MR GRACE:   Yes.

KIRBY J:   So he knew about it.

MR GRACE:   He knew about it.

KIRBY J:   The question I suppose is whether he did enough to attend to it.

MR GRACE: Yes. We submit that the learned sentencing judge erred in two major respects. Firstly, he did not adopt the process and principles applicable to the sentencing of federal offenders, but instead applied the principles applicable, or more applicable, to the sentencing under Western Australian State law and adopting Western Australian State law and its applicable principles and practices. In so doing, the one transaction rule and the totality principle, which were common law principles recognised by Part 1B of the Crimes Act, were not observed or properly applied at all.

The errors were perpetuated when the matter came up before the court below. It is clear – and I do not believe there is any dispute about this – that the sentence to be imposed upon the appellant had to be determined in accordance with Part 1B. That was the first port of call. The applicable sentencing principles to be applied were those, first of all, guided by Part 1B and, secondly, where there was a gap or an omission by the common law. If I could take your Honours firstly to Part 1B itself and take you through the applicable provisions.

GUMMOW J:   What is now the issue between you and the respondent?

MR GRACE:   The respondent says that the court below and the learned sentencing judge, even though they may not have gone about it the right way, nevertheless reached the right result.

KIRBY J:   He says we are here to correct orders, not reasoning, and if the result is right, it does not matter.

MR GRACE:   Yes.

GLEESON CJ:   It goes a little further than that, does it not?  The respondent draws attention to the grounds of appeal with which the Court of Criminal Appeal were dealing.

MR GRACE:   Yes.

GLEESON CJ:   And those were their actually amended grounds of appeal, which appear at pages 50 and 51.

MR GRACE:   Yes.

GLEESON CJ:   As I understand it, the respondent says in the orthodox fashion, the Court of Criminal Appeal dealt with the grounds of appeal and nothing else.

MR GRACE:   It is clear that in the Court of Criminal Appeal the arguments that were put on behalf of the appellant were matters that are clearly within the arguments that are put in the submissions on behalf of the appellant before this Court.  There is no difference in effect in the arguments that were put in both courts.  So that the great amount of attention that his Honour the Chief Justice in the court below gave to the arguments and submissions of the appellant based upon a failure to observe the principles enunciated in cases such as Pearce, Postiglione and Mill were, we say, not properly addressed in that court and form the basis of the arguments before this Court.

GLEESON CJ:   But the only ground of appeal in the Court of Criminal Appeal concerning the specific provisions of the Crimes Act (Cth) was ground 3, which the Court of Criminal Appeal dealt with first.

MR GRACE:   Yes.

GLEESON CJ:   It was a particular provision relating to the commencing date.

KIRBY J:   But I suppose you could say that grounds 1 and 2, insofar as they referred to general propositions, had to be evaluated in the context of the Crimes Act 1914 anyway, if the law was properly to be applied.

MR GRACE:   Yes, and specifically ground 1(a) for instance.

GLEESON CJ:   Yes, indeed, but the reasoning of the Chief Justice dealt seriatim with the grounds of appeal except that he dealt with ground 3 first.

MR GRACE:   That is true, your Honour.  Special leave was granted, a revised notice of appeal was filed upon the invitation of the Court and the direction of the Court in the special leave application, and the ground with particulars as articulated is the ground before the Court.  That in effect articulates in a better form – this is page 83 of the appeal book – the basis of the arguments that were put before the court below and which form the basis of this application for this appeal.

KIRBY J:   Which ground?

MR GRACE:   Page 83.

KIRBY J:   This is the one that was - was it Justice McHugh who was presiding in the special leave – or Justice Gummow I think?

MR GRACE:   Justice Gummow.

KIRBY J:   You raised this point, or the Court may have raised an aspect of the point and you had to bring your notice of appeal into line with it.

MR GRACE:   Yes.

KIRBY J:   Well, it is not for an appeal court or a trial court just to ignore a statute of the Commonwealth of Australia.

GUMMOW J:   Particularly when it founds the jurisdiction.

KIRBY J:   And while…..has to be applied.

MR GRACE:   Sorry, your Honour?

GUMMOW J:   Particularly when it founds the jurisdiction.  They are entitled to rely on people in your position to alert them to it, which you did not do, so it seems.

MR GRACE:   With respect, your Honour, that was done.  That was done in the Court of Criminal Appeal.  It is not reflected in the judgment unfortunately, but there was reference in that court to the relevant authorities.  Those relevant authorities in turn refer to the applicable statutory provisions.

GLEESON CJ:   By the relevant authorities, you mean Pearce and Mill?

MR GRACE:   And Postiglione.

GLEESON CJ:   Which are all dealt with in the judgment of Chief Justice Malcolm, maybe correctly, maybe incorrectly, but he dealt with the arguments that were put to him.

MR GRACE: Yes, he does, but they in turn relied upon provisions in Part 1B, and that issue was the subject of argument and submissions before the court below.

GLEESON CJ:   Now, is it your submission in this Court that there is an inconsistency between Mill and Pearce?

MR GRACE:   No.  What we submit is that Pearce narrowed the application of Mill.  In Mill there was two alternatives propounded as to the way of dealing with multiple offences in relation to sentencing.  Those two alternatives were to either, in respect of two or more offences, impose appropriate sentences in respect of each offence and then through orders for cumulation or concurrency affect the total effective sentence, or to reduce the individual sentences and order cumulation or partial concurrency to reflect the application of the principle of totality.  In Mill this Court said that the former approach is the appropriate approach.  In Pearce this Court said that the court must fix an appropriate penalty for each offence.

GLEESON CJ:   Is that a convenient time?

MR GRACE:   Yes.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MR D.J. BUGG, QC:   May it please the Court, I appear with MR D.W.L. RENTON for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Grace.

MR BUGG:   May it please the Court.  Before my learned friend commences, I do apologise to the Court for my non-appearance ‑ ‑ ‑

GLEESON CJ:   Never mind, Mr Bugg.

MR BUGG:   It is like coming on in the first quarter of a game, 10 minutes after it started, but I do apologise, your Honour.  It was not anyone’s fault other than my own and ‑ ‑ ‑

GLEESON CJ:   We quite understand.  Thank you, Mr Bugg.  Yes, Mr Grace.

MR GRACE:   Could I take your Honours to the decision of the New South Wales Court of Criminal Appeal in El Karhani (1990) 21 NSWLR 370.

KIRBY J:   What proposition does this support?

MR GRACE:   A number of propositions:  firstly, that the general principles of sentencing law are imported into the function of the court when imposing a sentence on a federal offender; and, secondly, the procedural steps that have to be followed in the sentencing of federal offenders.  Your Honour Justice Kirby was President of the court and was a member of the joint judgment of the decision of the court.

Could I take your Honours to page 377 at paragraph E. In that particular part of the judgment there was discussion about the absence of the reference to general deterrence in the checklist of items contained in section 16A(2) of the Crimes Act and there in the first substantive paragraph after paragraph E their Honours say this:

We agree with what Justice Hunt said on this point in R v Paull. Notwithstanding the absence from the checklist in s 16A of the Act of any reference to general deterrence, such a matter must be taken into account in determining the sentence to be passed.

Then, over the page, paragraph C their Honours say this:

It would have been surprising indeed if such a fundamental principle of sentencing, inherited from the ages, had been repealed by the Act. But legislative slips can occur. It is therefore necessary to look to the language and purpose of the Act. The language of the Act gives no support for the proposition that general deterrence has been removed from the list of criteria to be considered by a court sentencing a person for a Federal offence. On the contrary, s 16A(1) imposes on the Court the duty, which is its primary obligation, to ensure that the sentence or order “is of a severity appropriate in all the circumstances of the offence”. It is by this duty that the general principles of sentencing law are imported into the function of a court imposing a sentence on a Federal offender convicted of the offence. What will be “appropriate” will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.

The list of particular considerations in s 16A(2) must be read as subject to the primary obligation of the court stated in s 16A (1). All that s 16A(2) requires is that the court should “take into account” the listed matters. They provide a catalogue of matters to be considered in determining the “severity appropriate in all the circumstances of the offence”. However, the opening words of s 16A (2) must be noticed. They state that the matters there listed are to be taken into account “in addition to any other matters”. These words make it plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters. One other such relevant matter is clearly the general deterrent effect of the sentence.

GUMMOW J:   There is no disagreement between you and your opponent on that, is there?

MR GRACE:   Apparently not, your Honour.  Could I next take your Honours, without reading, to page 380 and to paragraph E, which commences with a paragraph numbered 1.  What the court there was doing was to give a guideline to judges as to the steps that must be taken in sentencing an offender pursuant to Commonwealth sentencing principles and powers.  What the court then does in the rest of that page, the next page and over the page to 383, is to go through the various steps that have to be taken in respect of the sentencing of a federal offender.

KIRBY J:   Remind me.  This legislation arose out of a report of the Australian Law Reform Commission ‑ ‑ ‑

MR GRACE:   Yes, it did.

KIRBY J:   ‑ ‑ ‑ but did not exactly follow the proposals of the Commission.  It was a revised version of what the Commission had suggested, I think.

MR GRACE:   Yes, it followed some recommendations but not all.

KIRBY J:   Including it did not have the provision about the presumption in favour of concurrent sentences.

MR GRACE:    No.  There was a strong recommendation of the Law Reform Commission that there be a presumption of concurrency, unless there were exceptional circumstances that warranted a different course.

KIRBY J:   And is that relevant in any way, that the Parliament omitted that part of the Law Reform Commission’s Report whilst adopting other parts?

MR GRACE:   We submit not. We submit that the provisions in Part 1B implicitly include a direction to the court to presume concurrency, and I will come to that if I may now. In section 16A(2) your Honours will see in subparagraphs (a), (b) and (c) the listing of the following matters:

(a)  the nature and circumstances of the offence;

(b)  other offences (if any) that are required or permitted to be taken into account;

(c)  if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;

. . . 

(k)  the need to ensure that the person is adequately punished for the offence;

We submit that those paragraphs are directly relevant to the point of presumption of concurrency and also directly relevant to the one transaction rule of sentencing.  Similarly, when one goes to section 16B, which provides that:

In sentencing a person convicted of a federal offence a court must have regard to:

(a)  any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served;

is directly relevant to both the totality principle and the one transaction rule.  Then, when one goes to section 17A, which endorses at that time the comparatively longstanding emphasis in Commonwealth sentencing on the point that imprisonment should be a penalty of last resort, and in subsection (1) the legislation provides:

A court shall not pass a sentence of imprisonment on any person for a federal offence or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

KIRBY J:   What is the relevance of that?  This was a case where it was appropriate to impose a sentence of imprisonment.

MR GRACE:   The relevance is that the legislation has a policy implicit in it and, of course, explicit, that imprisonment, if it is to be imposed, should be as small in length as justice permits and should not be imposed at all if an alternative can be applied in the circumstances.  Could I take your Honours next to Postiglione (1997) 189 CLR 295, merely to emphasise ‑ ‑ ‑

KIRBY J:   Mr Grace, just before you start on that, I am getting a bit lost in the structure of your argument.  You said that there were two errors.  One was the failure to apply the federal approach under the Crimes Act ‑ ‑ ‑

MR GRACE:   Yes.

KIRBY J:   Postiglione was a case in the New South Wales jurisdiction.  That was not a federal offence, was it?

MR GRACE:   In Postiglione there were federal offences.

KIRBY J:   Yes, it was.  It was an offence against the Customs Act.

MR GRACE:   Yes.

KIRBY J:   So we are still on the first of your points, are we?

MR GRACE:   Yes.

KIRBY J:   Right.

MR GRACE:   I want to take your Honours to two points in Postiglione. The first is the reference in the judgment of Justice McHugh at page 308 to the recognition of the totality principle in Part 1B and at point 9 of the page you see a reference after his Honour considered the application of the totality principle – his Honour said this:

This line of authority is consistent with the recognition of the totality principle found in s 16B of the Act –

and his Honour then sets it out.

GLEESON CJ:   Section 16B says that a court must have regard to it, but it does not say precisely how it has regard to it.  Do you accept the formulation of the totality principle of Chief Justice King quoted by Justice McHugh on the top of page 308?  We might as well know clearly what we are talking about when we use the expression “the totality principle” and this judgment seems to indicate that that is it, on the top of page 308, is that right?

MR GRACE:   In my submission, it is qualified by the statement of the principle in Mill and I would prefer to adopt the statement of the totality principle as enunciated in Mill by this Court.

GLEESON CJ:   What is wrong with this statement of Chief Justice King quoted by Justice McHugh on page 308?

KIRBY J:   The criterion of “crushing” is, on one view, overstating it.  We do not have to prove that it is “crushing” in order to get the benefit of the totality principle, at least as I understand it.

MR GRACE:   Yes, that is certainly one issue, but it does not encapsulate what was enunciated in Mill in an adequate way, in our submission.

GLEESON CJ:   Then can you formulate what you say is the totality principle?

MR GRACE:   Yes.  Could I take your Honours to Mill’s Case 166 CLR 

GUMMOW J:   What page in Mill?

MR GRACE:   At pages 62 and 63.

GUMMOW J:   Well, if you go back to Postiglione, footnote (25) is a reference to it, is it not?

MR GRACE:   Yes.  The point of difference is, if one takes out the word “crushing” and replaces it with the phrase “just and appropriate”, then I would not find any quarrel with that.

GLEESON CJ:   That is the way you should have regard to other periods in conformity with section 16B.

MR GRACE:   Yes.  The crux of the matter directly related to the circumstances of the appellant’s case is contained at point 4 on page 63 in Mill and this is where there is a divergence of approach and opinion between the Western Australian Court of Criminal Appeal in a succession of cases in the application to the totality principle and the application of that principle in other jurisdictions, including in New South Wales, Victoria and so on.

GLEESON CJ:   Where do we find the Western Australia approach most conveniently?  In the present case, I assume.

MR GRACE:   It is certainly referred to at length by his Honour the Chief Justice in his judgment, which appears in the appeal book, but it may be easier to take your Honours to the decision in Kilner ‑ ‑ ‑

KIRBY J:   Just whilst that is being got, how would you formulate the difference that has emerged?

MR GRACE:   Well, again, if one goes back to page 63 in Mill, point 4 on page 63, where their Honours say this:

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.  Where practicable, the former is to be preferred.

The Western Australian courts have adopted an approach of the latter rather than the former.  The adoption of the latter conflicts with the later approach of this Court in Pearce, which has been followed in other jurisdictions in Australia.

GLEESON CJ:   So the difference is not in the view that is taken of the totality principle, but in the proper response to it?

MR GRACE:   Yes, and in avoiding a response that would mask error, which this Court identified in Pearce.

GLEESON CJ:   So that, you say, is the difference between the Western Australian approach and the approach in other States?

MR GRACE:   Yes.  Well, I have not articulated it fully and when I do so it is this, that what happens in Western Australia is that the court determines what an appropriate overall effective sentence ought to be for two or more offences.  It then jigs the sentences in a way which purportedly accords with the totality principle, and that is what occurred in this case.  There are other factors in this case which reflect the adoption of a two-tiered method of sentencing, that is, giving a specified discount of 3½ years for the plea of guilty and ‑ ‑ ‑

GLEESON CJ:   We are just concerned with the totality principle at the moment.  So there is no difference in the view of the content of the principle, but there is a difference in the way of going about giving effect to it?

MR GRACE:   There is also a difference in what was meant by this Court in Pearce, that to proceed in a way other than in accordance with Pearce would reflect error or not, and that is why I want to take your Honours to Kilner as an example of the approach.  Kilner [1999] WASCA 189 is an unreported decision of the Court of Criminal Appeal of Western Australia comprising their Honours Justices Ipp, Wallwork and Parker, delivered on 30 September 1999. At paragraph [16], after referring in paragraph [13] to what their Honours Justices McHugh, Hayne and Callinan had said in Pearce, that:

“A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

His Honour Justice Ipp, with whom the other members of the court agreed, said this:

[16]  It is important to understand the context in which the remarks of McHugh, Hayne and Callinan JJ in Pearce v The Queen were made.  The High Court was there concerned with the issue of double jeopardy that arises when an offender is charged with two different offences on the same set of facts . . . The High Court found that the sentence for each count contained an element of punishment for the grievous bodily harm inflicted on the complainant.  Consequently, the offender was effectively punished twice for the one act.  The order that the terms of imprisonment be served concurrently did not justify the imposition of the sentences and the argument that double punishment had occurred was upheld.

[17]  The proposition that, in a situation where double jeopardy or punishment may arise, the appropriate sentence for each offence must be determined before considering questions of cumulation, concurrency and totality, has been followed in this Court in cases such as . . . As McHugh, Hayne and Callinan JJ observed in Pearce v The Queen (at 1423) . . . 

[18]  With respect, it seems to me that these remarks are intended to apply only to circumstances where the approach in question is “likely to mask error”.

We submit that that is a wrong statement of principle.  The support for that statement was said to be found in what your Honour Justice Kirby had to say in Pearce, that:

“This Court is not concerned generally with the components of the sentence or the way it was structured to deal cumulatively with the several episodes dealt with in the separate indictments.

That, in our submission, does not support the statement that it purports to support.

GLEESON CJ:   How do you relate this issue to the facts of the present case?

MR GRACE:   In two ways.  In this case the appellant went to the room to collect drugs.  It is not to the point whether it was ecstasy or any other drug.  He went to the room to collect drugs.  There is no quarrel with any of that.  When he went into the room he was handed a bag, and the facts reveal in the depositional material it was a garbage bag, which contained two forms of drug, one cocaine and one ecstasy.  As he attempted to leave the room, he was apprehended.  So it was the one act of the appellant that attempted to take possession of the drugs.  Of course they were not drugs, they were inert substances.  So we have effectively double punishment for the one act.

CALLINAN J:   Well, I am not satisfied that it is one transaction.  It is two entirely different drugs, entirely different values.  You will need to satisfy me about that.

MR GRACE:   Yes, I will come to that aspect of the one transaction a little bit later if I could.

CALLINAN J:   Yes.  You continue.

MR GRACE:   Yes.  So that is the first issue.  The second issue is that here you have one invasion, if I could use that word, into the area of criminal activity by the appellant, which is part and parcel of what your Honour just asked me about, but nevertheless came up with two separate offences.  Let us just assume that both offences, both acts, if they are to be called that, were deserving of separate punishments, was it more than one invasion into the same protected interest or was it two invasions deserving of cumulation?  That is one issue.  The second issue is, was the cumulation, the total cumulation, of what was said to be appropriate penalties for both offences warranted in the circumstances?  That is directly related to what is just and appropriate, which is the phrase used in the quotation accepted in Mill as being proper.

GLEESON CJ:   Now, what light is thrown on that by the provisions of the Crimes Act sentencing provisions?

MR GRACE: Well, section 16A(1) provides:

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

And then there is a check list of matters that the court must take into account, and I will not read through ‑ ‑ ‑

GLEESON CJ:   Which is the one that covers the point that you are complaining about now?

MR GRACE:   Well, subparagraphs (a), (b), (c) and (k) we say covers those points.  Then when one adds the provisions of section 16B(a) and the general policy reflected in 17A, a combination of those particular sections and subsections, one gets to the point of ‑ ‑ ‑

GLEESON CJ:   But having read them all, you still have to ask yourself the ultimate question:  does the fact that he tried to take possession of ecstasy and that he tried to take possession of cocaine mean that the sentences should have been entirely concurrent?

MR GRACE:   That goes back to the one transaction rule.

KIRBY J:   Could you give me a little bit more detail of his background?  He said at one stage, did he not, he suspected that it was ecstasy that he was carrying?

MR GRACE:   Yes.

KIRBY J:   But what led up to his being the carrier of drugs?

MR GRACE:   He was approached at a party to take part in this collection in exchange for $2,000.  He accepted the offer because he was in debt to the National Bank in a person loan to the value of $4,500.

KIRBY J:   And did he know the nature of the drugs or what they were ‑ ‑ ‑

MR GRACE:   He suspected it was ecstasy.

KIRBY J:   But did he know that some were ecstasy and some other drugs?

MR GRACE:   No, he did not.

KIRBY J:   And did the sentencing judge accept him on that statement, or proceed to sentence on that footing?

MR GRACE:   There was debate about it and the sentencing judge did not directly comment upon that aspect of the matter.  There was submissions by the Crown on the plea in mitigation to the effect that once he pleaded guilty he admitted all the ingredients to the offence which included knowledge of the fact that there were narcotic goods in the bag.  The fact that there were two lots of narcotic goods was unfortunate for him.

KIRBY J:   Were they in separate parcels or did he take one package?

MR GRACE:   It was one package.

KIRBY J:   And in that package were originally contained ‑ ‑ ‑

MR GRACE:   Two drugs.

KIRBY J:   ‑ ‑ ‑ there were inert substances, but originally there were separate containers, were they or mixed up together?

MR GRACE:   No.  What had occurred was that the actual importer had wound around his body some tubing and inside the tubing were the two drugs and also some other body wrappings which contained drugs.  They were all taken out at the Australian Federal Police Headquarters and what occurred then was inert substances were put into a garbage bag placed inside a sports bag and produced in the room to the appellant, who took possession of it and attempted to walk away.  At the top of page 41 of the appeal book there is remarks by the learned sentencing judge on sentence.  He said:

Your counsel has stressed that you did not know the quantity of drugs that you were to obtain, and I accept that as a fact, but nonetheless you were prepared to take whatever the quantity was and facilitate the release of that quantity into the community in exchange for $2000.

That does not address particularly the submission that was made by his counsel on the plea that he believed that what he was going to collect was ecstasy but had no idea that it was cocaine. Nevertheless, he must by his plea, of course, be taken to have accepted that he knew it was narcotic goods that he was collecting, and it was unfortunate that there were two lots. At the bottom of page 41 at point 9 his Honour says, after referring to the fact that he had taken into account section 16A(2):

In this case, however, not only were you involved in attempting to obtain the ecstasy but also the cocaine, which was part of the package which you were to take possession of.  That, in my view, adds to the seriousness of your conduct.

GLEESON CJ:   Now, what light does section 16A(2) throw on the correctness or otherwise of that sentence, that is, “that adds to the seriousness of your conduct”?

MR GRACE:   The trouble is that that comment, with respect to his Honour, is somewhat elliptical because what is the conduct his Honour is there talking about?  Is his Honour talking about the conduct related to each offence or is his Honour talking about the global conduct?

GLEESON CJ:   I am just concerned to know precisely what guidance you get from section 16A and 16B as to whether these sentences should have been entirely concurrent.

MR GRACE:   If one looks at 16A(2)(c), for instance, the court must take into account:

if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct.

GLEESON CJ:   All right.  Well, once you have taken that into account, what is the process of reasoning by which you come to the conclusion that the sentences should have been entirely concurrent?

MR GRACE:   Because this was so caught up in the one transaction.  You could not think of a better example, in my submission, of a one transaction giving rise to two separate offences.

KIRBY J:   And the elements that make it so are that it was one package, it was a one-off carriage, so far as we are aware.  He said he did not know that they were separate drugs.  He suspected it was ecstasy and the judge accepted that as a fact.

MR GRACE:   Yes.

KIRBY J:   And his motivation was not a differential motivation to import the drugs because he was involved in drugs as such; it was to pay off his bank overdraft.

MR GRACE:   Yes, $2,000.  This was a young man, 21 or 22 years of age at the time of the offence, unemployed, who opportunistically accepted this offer.

GLEESON CJ:   You may be right or you may be wrong, but is the corollary of your argument that it should not have made any difference to the sentences that were imposed upon him that there were two drugs involved and not merely one?

MR GRACE:   No, I do not go as far as to say that.  I say that the fact that there was more than one drug involved may in an appropriate case, of which this might be one, be reflected in imposing a sentence in respect of each offence which reflects the fact that it is not an isolated incident, that it is not an isolated event, that there are two offences.

KIRBY J:   That is what can happen when you pick up a parcel of which you know or suspect of containing drugs.  It might be heroin, it might cocaine, it might be ecstasy, it might be marijuana, it might be anything.

MR GRACE:   Yes.

GLEESON CJ:   And you do not care which.  That is the point, is it not?  He did not care whether it contained one kind of drug or two kinds of drugs or five kinds of drugs.

MR GRACE:   Well, the evidence is very deficient on that issue.  All that appears on the plea in mitigation is the fact that he believed that it contained ecstasy.  Now, one could argue, perhaps from the prosecution point of view, that he was reckless as to whether it would or it would not, but the point I make is that that can all be accommodated by imposing what would be perhaps a more severe sentence in respect of each offence to reflect the fact that each crime was not an isolated crime.  So that one could not be met with an argument at a later date saying you may as well collect 10 different sets of drugs in the one transaction because you are not going to get any more.  We do not subscribe to that theory.  We say that it can be effected in the method that is postulated.

KIRBY J:   At some stage I would be grateful if you would take the Court to the one transaction principle.

MR GRACE:   Yes.

KIRBY J:   You have dealt with the totality principle, but on the face of things you could characterise what he did as either.  You could say it is two offences, he has pleaded guilty to two offences, he did not know and did not care and he just went ahead and bought them in and he has pleaded guilty to the fact that they were two offences, therefore they will be characterised as two offences, two transactions, or you can say it was one parcel, it was one action, he did one run, he was not doing it to differentiate and therefore we will categorise it as one transaction.  Now, I do not know how one deals with that.

MR GRACE:   I will take your Honour to the relevant authorities on that issue shortly, but could I just finish what I ‑ ‑ ‑

CALLINAN J:   Before you do that, you said before that the submission was made and that it was accepted by the sentencing judge that he did not know that there were two varieties of drugs.  Did I hear that correctly?

MR GRACE:   No, your Honour, with respect.  His Honour says at the top of page 41 ‑ ‑ ‑

CALLINAN J:   Yes, he said:

you did not know the quantity of drugs that you were to obtain ‑

It does not say anything about the variety of drugs.

MR GRACE:   No.  At page 20 at point 8 you will see where the submission is made by Mr Tudori on behalf of the appellant, pursuant to his instructions, that the appellant:

had a feeling, it was a strong feeling, that it was ecstasy.

GLEESON CJ:   Just pausing there, apart from what the appellant is said by Mr Tudori to have told Mr Tudori, what was the evidentiary basis on which the sentencing judge had to proceed about this matter?

MR GRACE:   There was a record of interview.

GLEESON CJ:   And what did he say in the record of interview?

MR GRACE:   If I am not mistaken, something consistent with that.

KIRBY J:   Do we have the record of interview?

MR GRACE:   No, we do not.

GLEESON CJ:   Well, what the offender tells Mr Tudori and Mr Tudori repeats from the Bar table might understandably not be the foundation of a specific finding of fact by the judge.

MR GRACE:   Yes.  I appreciate that problem, but at the top of page 41 his Honour ‑ ‑ ‑

KIRBY J:   But that goes to quantity, as Justice Callinan has pointed out.  It does not go to the type of ‑ ‑ ‑

MR GRACE:   Yes, it is quite right.  That is quite right, but the submission as to lack of knowledge as to quantity was also made.

GLEESON CJ:   Quality you mean?

MR GRACE:   Sorry?

GLEESON CJ:   When you said – would there have been any other foundation for a finding of fact by the sentencing judge to the effect that your client thought this was only ecstasy, other than the statement made by Mr Tudori on page 20?

MR GRACE:   Other than, as I said, what may have been contained in the record of interview, which was considered.

KIRBY J:   Well, we had better have that record of interview.  It is part of the record.  It was before the sentencing judge and it is referred to by counsel.

GUMMOW J:   There is some reference to it at page 6 of the appeal book, is there not?

KIRBY J:   Presumably it is in the Director’s file somewhere.

GLEESON CJ:   Does Mr Tudori’s statement that your client had a feeling that it was ecstasy mean that your client would have done the same thing whether it was ecstasy or cocaine or heroin?

GUMMOW J:   Have a look at page 7, about line 12.

MR GRACE:   Yes:

he did not really want to think about what may be inside the package –

That is so, your Honour.  I have the brief here.  I will ask my junior to find the exact ‑ ‑ ‑

GLEESON CJ:   You are not inviting us to deal with this appeal on the basis that your client believed it was only ecstasy, are you?

MR GRACE:   No, not at all, your Honour.  Your Honours, can I go back to Kilner, with your Honour’s leave, to paragraph [19], which goes to the real nub of one of the complaints of the appellant.  There his Honour says:

The practice of first fixing an appropriate overall sentence for a series of offences has long been known in this State (it has indeed recently been applied by this Court in The Queen v Griffiths [1999] WASCA 23). As is pointed out in Pearce v The Queen, this practice is inappropriate in cases of double jeopardy (and also where offences overlap).  It may also result in entirely inappropriate [sentences] being given for individual offences.  When carefully applied in suitable circumstances, however, the practice has much to commend it.

Now, that is a direct statement contrary to what the majority of this Court said in Pearce.  His Honour the Chief Justice in the appellant’s case relies upon that approach in Kilner as to justify the result achieved.  Could I take your Honours to the appeal book, commencing at page 64, paragraph 25.  After referring to the approach adopted by the learned sentencing judge in the appellant’s case at paragraph 24, and his Honour accepting:

that the approach, which ought to have been adopted by the sentencing Judge in the present case, was to fix appropriate penalties for both offences – 

at paragraph 25 his Honour says:

While the approach adopted by the learned Judge was not exactly in accord with principle, it does not necessarily follow that there has been a miscarriage of justice –

and then Heryadi and Kilner’s Case are referred to, and the one transaction rule just briefly.  In paragraph 26 his Honour says:

In my opinion, the application of that approach in the present case would obscure the fact that the applicant took possession of two separate parcels of two separate drugs.

This was a mistake of fact.  It was not two separate parcels of two separate drugs and he did not take possession of them.  He attempted to take possession of two drugs in one bag.

KIRBY J:   That is a mistake of the Chief Justice?

MR GRACE:   Yes, and there is a series of mistakes which we submit led his Honour into the error of characterisation which ultimately led to the ultimate dismissal of the appeal.

KIRBY J:   Have you identified that series?

MR GRACE:   Yes, I have, and they are set out in detail in the written submissions, but I want to highlight in paragraph 26 where it all goes wrong:

It was not a case where there were two offences where, for example, an act which was itself an offence was also an element of the second offence.

Now, we submit, that it was such a case.

There were two separate offences.  There was no common element.

We say that is wrong.

The relevant circumstance was that two separate offences of possession and attempting to obtain possession of two different drugs occurred at the same time.

Well, that is just clearly wrong.  There were two offences of attempting to obtain possession.

In my opinion, this is not an example of the one act comprising two separate offences, but two separate acts, one of obtaining possession of Ecstasy and one of attempting to obtain possession of Cocaine.

It just was not the case, two offences of attempting ‑ ‑ ‑

KIRBY J:   He did not obtain either drug?

MR GRACE:   No.

KIRBY J:   He obtained the inert substance, did he?

MR GRACE:   Yes, he attempted to obtain.

KIRBY J:   He attempted to obtain an unidentified single package, which he believed to contain ecstasy but which he did not even bother to inquire about what it did contain?

MR GRACE:   Yes.

KIRBY J:   But in fact it would, but for the intervention of the police, have contained the mixture of the two drugs?

MR GRACE:   Correct.

GLEESON CJ:   I thought you disclaimed the suggestion a couple of minutes ago that he believed it contained ecstasy?

MR GRACE:   No, I was answering your Honour’s question and then I said I do not ‑ ‑ ‑

GLEESON CJ:   I asked you if you wanted us to deal with this case on the basis that your client believed it contained ecstasy.  Do you want us to deal with the case on that basis or not?

MR GRACE:   I would certainly ideally like your Honours to deal with it on that basis, but I must concede that there is insufficient evidentiary foundation for that to occur, if I could answer it that way.

KIRBY J:   You are also stuck with the fact that he pleaded guilty to the offence which was differentially charged (a) ecstasy and (b) cocaine.

MR GRACE:   Yes.

KIRBY J:   So it has to proceed on that footing, but you say it has to proceed on that footing in the factual context that he was just to be a carrier and he got one package and, unlike the description by Chief Justice Malcolm, it was not two separate parcels – it is two separate drugs; it was just one parcel.

MR GRACE:   Yes.

KIRBY J:   He did not say, “Where’s my cocaine?”  As far as he was concerned, he was just carrying the parcel.  So there was a commonality of the factual elements.

MR GRACE:   That is correct.

GUMMOW J:   Now, where in your written submissions do you further detail your complaints about paragraph 26?

MR GRACE:   At paragraph 5.38.

GUMMOW J:   Thank you.

MR GRACE:   This was not the only error that his Honour made in paragraph 26.  Could I take your Honours, whilst we are on this subject of errors and misdirections, to paragraph 21 where his Honour talks about, at the fifth line from the bottom of page 62, possession of the ecstasy.

KIRBY J:   Sorry, I am not catching this.  Is this in paragraph 21?

MR GRACE:   In paragraph 21 on page 62, his Honour says:

In my opinion, it is apparent from the approach adopted by the learned Judge that his Honour considered that the appropriate sentence for possession of the Ecstasy was imprisonment for 10 years, and for attempting to obtain possession of the Cocaine.

That should have been “attempted possession of ecstasy”.  Then on page 63 ‑ ‑ ‑

KIRBY J:   Which is what he was charged with and to which he pleaded guilty, is that correct?

MR GRACE:   Yes, two counts of attempted possession.  At page 63 there is reference in the second last line of paragraph 21, the fourth line on the page, to the possession of cocaine.

KIRBY J:   Could you help me?  Why do police not allow the drug – is that because of the Ridgeway problem of supplying the drug?  Why do not they let the drug pass on from the importer to the – because that will attract a higher penalty, one would think.  They then are in possession of the actual substance.  Is that because of Ridgeway?

MR GRACE:   Yes, although it is the same maximum penalty under the Customs Act for attempted possession as there is for possession.

KIRBY J:   I see.  Anyway, it does not matter much.  This is what they did.

MR GRACE:   There is a risk, of course, that they will lose the drugs and they will wind up in the community.  I think that is the major reason.  I do not think it is a Ridgeway problem once it lands in the country.

GLEESON CJ:   By a coincidence, the amount that the elderly sick Lebanese respondent to the Crown appeal in El Karhani was paid for his transportation services was $2,000.  Have you done the exercise of comparing the sentences that were imposed by the Court of Criminal Appeal in the Crown appeal in El Karhani with the sentences that were imposed in the present case?  If you have not, do not bother about it now.

MR GRACE:   No, I have not, but it is also complicated by the issue of remissions which were available in Western Australia up until recently – I am not sure what the position was in 1990 in New South Wales – but there was also other provisions in Part 1B which affected the situation also.

KIRBY J:   They were very hard judges in the Court of Criminal Appeal in New South Wales.

GLEESON CJ:   They were upholding a Crown appeal in accordance with principles and said that they should resentence him to the lightest sentence that was consistent with the circumstances because it was a successful Crown appeal.

MR GRACE:   Yes.

GLEESON CJ:   I think if you look at what actually happened to Mr El Karhani and compare it with what happened to your client in the present case, you might draw some interesting conclusions.

MR GRACE:   Six years with a non‑parole period of four years.

GLEESON CJ:   Yes.

KIRBY J:   Correct me if I am wrong, in El Karhani there was no problem of differential of two drugs in one transaction, was there?

MR GRACE:   No, there was not.

GLEESON CJ:   No, he only had one offence.

MR GRACE:   Yes.  I was dealing with the errors.  At page 63, the fourth line and fifth line, his Honour talks about:

possession of Cocaine or the attempt to obtain possession of Heroin.

Clear errors.  At paragraph 24, on page 64, halfway down paragraph 24 ‑ ‑ ‑

HEYDON J:   Is that an error at the end of paragraph 21?  He is not really talking about this case, is he?  He is talking about the range of sentences for cocaine and heroin, speaking generally.

MR GRACE:   Well, heroin has nothing to do with this.  Maybe, but it is a strange way, if he is, of referring to a comparative situation, where his Honour clarifies what he is saying by the phrase “such circumstances”.

GLEESON CJ:   There are cases that say, are there not, that you get the same for cocaine as heroin?

MR GRACE:   Yes, there are.  Paragraph 24, halfway down the paragraph, his Honour says:

In my opinion, it is implicit that the learned Judge determined what he considered to be an appropriate sentence for the possession of Cocaine – 

and then the errors in paragraph 26 which I have already identified.  At paragraph 33 – and this again goes to the nub of the issue – his Honour says:

In the present case, as I have said already, the importation of two separate parcels of drugs was part of one transaction – 

and then to differentiate the appellant’s circumstances from that which would otherwise apply or make applicable the one transaction rule, his Honour says:

although it involved separate offences in respect of each drug.  Similarly, when the applicant took possession of the Ecstasy and what he thought was Cocaine, but which was only an attempt because of the substitution, he committed two offences, although they were part of the one transaction.

GUMMOW J:   That passage in 33 throws light back on 21, I guess, the references to cocaine in 21.

MR GRACE:   Yes.

GUMMOW J:   What was the basis of that idea?

MR GRACE:   In 33, your Honour?

GUMMOW J:   That he thought it was cocaine?

MR GRACE:   There is no basis.  There is absolutely no factual foundation for a conclusion that he thought it was cocaine.

HEYDON J:   What about the plea of guilty?  That is the best evidence, is it not?

MR GRACE:   No, because this Court in He Kaw Teh determined that all that is needed to find one guilty of an offence under section 233B of the Customs Act is to have an intention to have possession of narcotic goods which have been imported into Australia in contravention of the Customs Act.  One does not have to have knowledge of what the specific narcotic good is.  So that is why there is a distinction that has to be made.

So those errors in totality, we submit, led his Honour in turn to come to the conclusion that the totality principle had not been infringed and, secondly, that the one transaction rule similarly had not been infringed.  But I got onto this topic, your Honours, because when I was referring to Kilner ‑ ‑ ‑

KIRBY J:   I mean, if you show that the judge with the carriage of the matter in the Court of Criminal Appeal, whose reasons were, in effect, the reasons of that court, appears to have made a number of misunderstandings of the facts in reviewing the decision of the sentencing judge, unless we can take it upon ourselves to come to a conclusion that the net result and the actual final sentence is correct, whatever may have been the reasoning on the way, then we would, I would have thought, say that the Court of Criminal Appeal has not performed its job properly in reviewing the matter, because there are just a lot of mistakes here on the understanding of the facts.

MR GRACE:   Yes.

GLEESON CJ:   There is another puzzling matter about the judgment that I do not think affects your argument or the argument of your opponent, but I would like to understand it, if I could.  On page 58 and the top of page 59 reference is made to some request to counsel to do some calculations.  Do you see that?

MR GRACE:   Yes.

GLEESON CJ:   At the top of 59 it is said “Unfortunately, at the time of writing” those calculations had not been submitted.

MR GRACE:   They had been.

GLEESON CJ:   Then, if you go over to page 60, there is a reference to what I understand to be the same calculations.

MR GRACE:   Exactly, your Honour.

GLEESON CJ:   Saying that they had been submitted and that they were found to be correct.

MR GRACE:   Correct, your Honour.

KIRBY J:   Perhaps they had been submitted between dictating page 58 and ‑ ‑ ‑

MR GRACE:   No, they had not been.  This caused a lot of consternation between counsel, myself and Mr Tudori, who appeared in the Court of Criminal Appeal, because we have the transcript of the Court of Criminal Appeal hearing and it is clear that we submitted the calculations, or I submitted the calculations in my reply to the court, and that formed the basis of what appears on page 60.  His Honour was requested to correct the judgment, but only corrected it in very small part and not significantly on page 58.

GLEESON CJ:   So what appears at page 58 as a record of what occurred is not accurate?

MR GRACE:   It is not accurate.

GLEESON CJ:   I just puzzled about that when I read the judgment, that is all.

MR GRACE:   Yes, it is not accurate.

KIRBY J:   You are not asking us to resentence your client?

MR GRACE:   No.

KIRBY J:   You are simply asking us to identify error and send it back to be performed correctly?

MR GRACE:   Yes.

KIRBY J:   You presumably would not have got special leave if all that had happened – or maybe you would have – were a few factual ‑ ‑ ‑

MR GRACE:   No.

KIRBY J:   You got special leave because of the totality and one transaction point?

MR GRACE:   Yes.

KIRBY J:   And the federal point?

MR GRACE:   Yes, and the point also that we submit is of importance in this case is the reliance on the disavowed, if I could use that phrase, approach mentioned in Mill’s Case in Western Australia, which is identified in Kilner’s Case and repeatedly applied, of which this case is an example.  How I got onto these errors was when I was taking your Honours through the judgment of the court below, and particularly at page 65 of the appeal book onwards, and there ‑ ‑ ‑

GUMMOW J:   I am not sure where we are going at the moment.

GLEESON CJ:   No, we got onto these errors – I mean, subject to the significance of these errors, you got to this Court on the basis of a proposition that the Commonwealth legislation, directly or indirectly, expressly or by implication, required that your client be sentenced to concurrent sentences.  That is what brings you here, is it not?

MR GRACE:   We submit that there is a presumption of concurrency contained within the legislation.  Why we say that is this.  In all States and Territories of Australia at the present day – and this is identified in our written submissions – there are provisions which have been held specifically and otherwise can be interpreted as meaning that there is a presumption of concurrency unless a court otherwise orders.

GLEESON CJ:   Presumption of concurrency in what circumstances?

MR GRACE:   Where there are multiple offences charged on the same indictment.  Now, it is commonplace ‑ ‑ ‑

KIRBY J:   That involved the same transaction surely.  You cannot have concurrency if they are completely different crimes involving a different occasion.

MR GRACE:   No.  Before one has more than one count on an indictment, the prosecutor must satisfy the court that the indictment contains offences which are properly joined in accordance with the joinder rules which apply in every State and Territory.  So provided it is offences of the same series of acts of the same or similar character, or identical offences, then there is no bar to the joinder.

Now, one starts from that proposition, that understanding, and we submit that because the Commonwealth, when it prefers indictments against an accused, applies the State and Territory procedures relating to joinder and because those States and Territories contained in their various sentencing Acts and sentencing legislation are provisions which we say reflect an approach that sentences be served concurrently with uncompleted sentences or with sentences imposed at the same time ‑ ‑ ‑

GLEESON CJ:   What exactly do you mean by the expression “presumption of concurrency”?

MR GRACE:   That it is a prima facie rule that sentences be concurrent unless otherwise ordered.

KIRBY J:   Is that stated in any Court of Criminal Appeal or in this Court?

MR GRACE:   Yes, it has been stated ‑ ‑ ‑

KIRBY J:   Where do we get it most importantly?

MR GRACE:   There is quite a lengthy exposition of it in the case of Mantini [1998] 3 VR 340, which is a decision of the Victorian Court of Appeal, and that case has been applied in the Northern Territory in the unreported decision of Miles.

KIRBY J:   What is the principle behind it?  Is it to keep the numbers of people in gaol down or the length of time in gaol down or is it a principle of justice in a particular case, that just because there are a number of ways in which the Crown can prosecute criminality that if in substance they are part and parcel of the one event that you only punish once?

MR GRACE:   The justification seems to be related to the joinder rules themselves, that is, that the offences arise from substantially the same act or same circumstances or a closely related series of occurrences.

GLEESON CJ:   This decision applied a specific statute of Victoria. Section 16(1) of the Sentencing Act (Vic) said something about concurrency. Now, the Commonwealth Act does not say that.

MR GRACE:   No, it does not.

GLEESON CJ:   But you say it implies that?

MR GRACE:   Yes.  Could I take your Honours to the decision also of the New South Wales Court of Criminal Appeal in Longford [1970] 3 NSWR 276.

KIRBY J:   Was there a statutory presumption in that case?

MR GRACE:   No, the court there was dealing with the power at common law to impose cumulative sentences.  Your Honour the Chief Justice asked me what is the basis for the submission that there is a presumption contained within the Commonwealth legislation.  The answer is twofold.  I have already gone to the first part, and that is the application of the joinder rule suggests that the offences are closely related and prima facie that should be the approach that is adopted, but at common law the Court of Criminal Appeal in Longford said this at page 277 at line 50:

It remains to consider whether his Honour had power at common law to direct that a sentence of imprisonment should commence as from a future date to be determined because what he did was to sentence the appellant to 12 months hard labour, to date from the termination of his then existing sentences.  It was held in R v Wilkes that at common law imprisonment for a misdemeanour might be imposed so that the sentence would commence at the termination of a sentence that was being served.

The position was different in regard to felonies but statutory authority was given to impose consecutive sentences by 7 and 8 Geo. IV, c. 28 s. 10.  It should be noted that in R v Hemming counsel for the Crown argued, and, we think, correctly, that the rule was limited to cases of misdemeanour originally because a man already under sentence for a felony could always plead to a subsequent indictment the plea of autrefois attaint.  Any second attainder would be superfluous . . . However, we think that some doubt exists as to whether the power which was said to exist at common law to postpone the commencement of sentence does exist in all circumstances although in Castro’s Case Bramwell, L.J., said:  “Whether it would be lawful to pass a sentence on a person not already under sentence to commence on a future day, need not be discussed:  I am not prepared to say it would not be; I incline to think it would.  But unless for some sufficient reason it would in my opinion be unreasonable, and what I suppose may be called unconstitutional.

Then jumping to the next paragraph:

The view of his Honour seems not to have been the subject of a firm determination because Brett, L.J., said at p. 514:  “It is true that in R v Wilkes from the form in which the question was put to the judges and from the manner in which it was answered, the judges appear to confine the possibility of postponing a sentence to instances, where other sentences are already in existence at the time when the deferred sentence is passed, and they seem to have held that if no sentence exists to which another can be postponed, it is not lawful in England to sentence a person to a term of imprisonment to commence at a subsequent time.”

GLEESON CJ:   How do you relate to this to section 19 of the Commonwealth legislation?

MR GRACE:   Because under section 19 the court must determine when a sentence commences.

GLEESON CJ:   Yes, but section 19 contains the Commonwealth statutory provision about cumulative, partly cumulative or concurrent sentences, does it not?

MR GRACE:   Yes, it does.

GLEESON CJ:   Without the presumption?

MR GRACE:   Yes.

GLEESON CJ:   What are we to make of that?

KIRBY J:   Especially because the Law Reform Commission apparently recommended the prison ‑ ‑ ‑

MR GRACE:   Yes.

KIRBY J:   What mischief was done in the Commonwealth Attorney‑General’s department to delete the presumption which is so common throughout the nation and which reflects, one would think, practical good sense?

MR GRACE:   Section 19(1) deals with the position of someone already serving a sentence.  Section 19(2) deals with the situation in this case and that does not preclude ‑ ‑ ‑

GLEESON CJ:   No, subsection (1) does not only deal with somebody already serving a sentence, does it?  It deals with somebody also with whom a sentence has already been fixed.  It might have been fixed 10 seconds ago.

MR GRACE:   No, with respect not, your Honour.  Could I take your Honour to the appeal book in this case.  At page 11, point 9, after the pleas were entered, his Honour says:

There will be judgment of conviction on each count on the indictment.

GLEESON CJ:   I was only asking about the construction of the statute, section 19.

MR GRACE:   Yes.

GLEESON CJ:   Section 19 applies, does it not, where a person is being sentenced on the same day for multiple offences, or am I wrong about that?

MR GRACE:   Subsection (2) does specifically.

GLEESON CJ:   Yes.  What is it in subsection (2) that implies the presumption of concurrency?

MR GRACE:   Nothing in terms in subsection (2), but it does not preclude that presumption operating, but it leaves open, in the exercise of sentencing discretion, for a court to impose something other than concurrency. Then that goes back to issues of totality in one transaction, which are contained implicitly, if not explicitly, in other provisions of Part 1B.

GLEESON CJ:   Having regard to the legislative history that Justice Kirby just mentioned, it would be curious if the legislature left this matter to implication.

KIRBY J:   Unless they took the view that it was already sufficiently embedded in the other provisions of the Act.

MR GRACE:   One has to remember that before this legislation came in, in 1990 or thereabouts, State and Territory sentencing provisions applied to the sentencing of Commonwealth offenders in each jurisdiction across Australia, so that wherever there were presumptions of concurrency existing in the State and Territory provisions, they were applied.

GLEESON CJ:   Did you argue before the Court of Criminal Appeal that there was this presumption of concurrency in the statute?

MR GRACE:   No, I did not.

GLEESON CJ:   No, which explains why we do not see it mentioned in the judgment.

KIRBY J:   I think you did argue it on the special leave application.

MR GRACE:   Yes, your Honour.  I think I said, your Honours, that the Northern Territory Court of Appeal in ‑ ‑ ‑

GUMMOW J:   That is Miles.

MR GRACE:   ‑ ‑ ‑ Miles, has adopted the Victorian position and your Honours will see that at ‑ ‑ ‑

GUMMOW J:   In a statutory framework, is it?

MR GRACE:   Yes.

KIRBY J:   If one looks at this as a matter of legal principle, one would think one could construct two arguments why concurrency is a proper principle.  The first individual to the offender, that although under our criminal law a person may be guilty of a number of offences in the one circumstances, if you look at the totality of it, you will not punish them because they happen to have committed a lot of offences, you will look at the criminality as a whole.  And two, from the point of view of society, putting people in prison for a very long time by cumulative sentences is both expensive to the individual and expensive to the community and contrary to the principle that you give the minimum custodial sentence that is appropriate to the case.

MR GRACE:   Yes, and that is also consistent with the application of section 17A contained within Part 1B, that imprisonment is sentence of last resort.

KIRBY J:   That is really part of the second limb I just mentioned, from the point of view of society.

MR GRACE:   Your Honours, it is paragraph 35 in Miles that I want to refer to but I will not read that to your Honours.  I also, on this particular issue – but I will come more specifically to what Justice Wells had to say about the one transaction rule in South Australia.

GLEESON CJ:   Where do we find the section 50 that is referred to in paragraph 35?

MR GRACE:   I do not believe it is set out in the legislation but I can undertake to provide that to your Honours.

GLEESON CJ:   Would you please do that.

MR GRACE:   At paragraph 5.51 on page 13 of the appellant’s submissions the various provisions in all the States and Territories which provide that terms of imprisonment imposed shall be served concurrently with other uncompleted sentences unless the court otherwise orders are set out.  Yes, section 50 I have been provided with, your Honours.  Actually, it appears in the Commonwealth’s bundle of materials in the next matter of Putland.  Section 50 provides – this is in the Northern Territory:

Unless otherwise provided by this Act or the court imposing imprisonment otherwise orders, where an offender is –

(a)  serving, or has been sentenced to serve, a term of imprisonment for an offence; and

(b)  sentenced to serve another term of imprisonment for another offence,

the term of imprisonment for the other offence is to be served concurrently with the first offence.

GLEESON CJ:   Thank you.

KIRBY J:   That is a Territory provision, is it?

MR GRACE:   It is the Northern Territory, but similar expositions of that provision appear in various other States and Territories and it is provided for in the bundle of materials that I have provided your Honours, towards the back of those materials.

KIRBY J:   Can you think of any other reasons of principle which support – we are looking for a principle where we do not have a statute.  Other than the two I mentioned, looking at it from the point of view of the individual and looking at it from the point of view of society, is there anything else?  Is there any discussion of this?

MR GRACE:   Mercy.  Mercy to the individual.

GLEESON CJ:   What about mercy?

MR GRACE:   That mercy, if appropriate, dictates.

GLEESON CJ:   Why did you say “if appropriate”?

MR GRACE:   Some cases may not be appropriate for mercy to be delivered, but in cases where it is, then mercy would dictate that the least possible sentence be imposed upon an individual.

GLEESON CJ:   A common way of reflecting mercy where mercy is appropriate is to impose concurrent sentences, but how does that advance your argument?

MR GRACE:   I was directly answering his Honour Justice Kirby’s question about ‑ ‑ ‑

KIRBY J:   This was a young man with no prior drug offences.  I think he had had one previous offence but ‑ ‑ ‑

MR GRACE:   Very minor in nature.

KIRBY J:   What was his custodial sentence?

MR GRACE:   He received a sentence of 11½ years, with a non‑parole period of 5½ years.

GLEESON CJ:   But you are putting a proposition about the construction of the Commonwealth legislation and, unless I am misunderstanding you, you are inviting us to apply the legislation on the basis that it implies a provision to the effect that is expressed, for example, in section 50 of the Northern Territory legislation.

MR GRACE:   Yes, because that is the position at common law.

KIRBY J:   El Karhani said that the legislation does not cross all the t’s and dot all the i’s, the common law of sentencing remains to fill the gaps.

MR GRACE:   Yes.

KIRBY J:   This is not specifically dealt with, so that you have to look at whether there is any common law principle, as distinct from a statute.

MR GRACE:   Yes.

KIRBY J:   You are contending that there is a common law principle and that it has developed and it has no doubt been influenced by all this legislation and by the history which is referred to in that New South Wales case and that the common law principle can be supported by two reasons of legal policy.

MR GRACE:   Yes.

GLEESON CJ:   I want to get your submission clear.  It is one thing to submit that the statute implies that you must sentence according to this principle and it is another thing to submit that there is a principle of common law that is not displaced by the statute.  Which is your submission?

MR GRACE:   Both, your Honour.

GLEESON CJ:   They are different, are they not?

MR GRACE:   They are different, yes, but both lead to the same result.

KIRBY J:   The first is more difficult for you, that is to say that it is implied, given that it was recommended and that other recommendations were adopted and that one was not.

MR GRACE:   Yes.

GUMMOW J:   It looks like covering the field to me.

MR GRACE:   El Karhani’s Case is authority for the proposition, as is Postiglione ‑ ‑ ‑

GUMMOW J:   It might be.

MR GRACE:   ‑ ‑ ‑ that common law principles do apply.

KIRBY J:   It would have been very odd if general deterrence had not been a matter relevant to sentencing for federal offenders.

MR GRACE:   Yes, and particularly if it is the case, as it is, we say, that throughout Australia you have sentencing legislation which provides for exactly just that.

GLEESON CJ:   In New South Wales?

MR GRACE:   Yes.

GLEESON CJ:   What is the reference for that?  I am sorry, what do you mean by “just that”?

MR GRACE: Section 55(1), the presumption. Can I take your Honours to section 55 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provides:

In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:

(a)  who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b)  in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.

CALLINAN J:   Mr Grace, could I ask you this question.  Why does 16A(2)(c) not displace the one transaction principle?  It might mean something similar to it, but does it not displace it really?  It covers the field, does it not, in relation to courses of conduct?

MR GRACE:   It may, your Honour, in an appropriate case, but I hesitate because it may be going too far to say it displaces it completely.  It certainly, we say, recognises it.

GUMMOW J:   Why?

MR GRACE:   Because there may be circumstances – and I will come to the exposition of the one transaction rule immediately if your Honours ‑ ‑ ‑

GUMMOW J:   But you will not find an exposition of the one transaction rule that is as succinctly expressed as section 16A(2)(c).

MR GRACE:   Perhaps not, your Honour.

GUMMOW J:   No.

GLEESON CJ:   Did you submit in the Court of Criminal Appeal that section 16A establishes the one transaction principle?

MR GRACE:   I certainly submitted that this case exhibited a one transaction and that 16A supported that particular conclusion.

KIRBY J:   I may be wrong, but does (c) not direct your attention not merely at the criminal acts but at – that their character as being part of a single course of conduct and is that not the idea behind concurrent sentences?

CALLINAN J:   I thought that was discussed, 16A(2)(c) in a case recently.

GUMMOW J:   Yes, Mr Byrne appeared in it, a case in this Court.

MR GRACE:   In a judgment of this Court?

GUMMOW J:   Yes.

CALLINAN J:   I have a recollection of saying something about it myself but I cannot immediately remember what it was.  What was said in the joint judgment in Pearce may well have been said in the light of that, 16A(2)(c), I think.

MR GRACE:   That may be so, your Honour.

CALLINAN J:   What was said in Pearce and was quoted here rather looks like an application of 16A(2)(c), I think, or it could be.

MR GRACE:   It is certainly consistent with the application of that particular subparagraph.

GLEESON CJ:   Section 19 in its heading refers to partial cumulation.  What is that about?

MR GRACE:   That is specifying a different commencement date for the second or subsequent sentence.

GLEESON CJ:   Do sentencing judges sometimes make sentences cumulative and sometimes make them concurrent and sometimes make them partially cumulative and partially concurrent?

MR GRACE:   Yes, they do.

GLEESON CJ:   In what circumstances would it be proper for a sentencing judge to make sentences partly cumulative and partly concurrent?

MR GRACE:   By application of the totality principle. So that if, for instance, there were two unrelated offences that did not fall within the broad description in section 16A(2)(c).

KIRBY J:   If, for example, in this case your client had done some violence to the police officers whilst trying to escape and that was a separate criminality, then that would perhaps be the case where on your submission it would be appropriate to deal with the drug‑type offences concurrently and the other offence cumulatively.

MR GRACE:   Yes.

GLEESON CJ:   Why could not a judge in an appropriate case respond to section 16A(2)(c) by making sentences partly cumulative and partly concurrent?

MR GRACE:   It could.

KIRBY J:   There would have to be a factual foundation for it.

MR GRACE:   Yes.

GLEESON CJ:   It is done all the time, is it not?

MR GRACE:   Yes.

GUMMOW J:   Justice Callinan and I think the case may be Weininger.

CALLINAN J:   It arose, I think, because there was uncontradicted evidence of a course of conduct of which the offences charged formed part.  The question was the extent to which the Court could look at the uncharged conduct which was not denied in sentencing the appellant.  I think that was the position.

MR GRACE:   Yes.  That puts a different gloss on subparagraph (c).

CALLINAN J:   I think there is a discussion of the paragraph in there.

MR GRACE:   Yes.  I am indebted to your Honours for that.

KIRBY J:   You said you were going to get to the one transaction.  I cannot wait for you to deal with the one transaction ‑ ‑ ‑

MR GRACE:   Yes.  I keep getting diverted, your Honours, from the ‑ ‑ ‑

KIRBY J:   It is amazing how one can get through life without remembering the one transaction principle.

MR GRACE:   I think I have dealt as much as I can with it with the approach in Western Australia as to the approach disavowed in Pearce in respect of the application of the totality principle which is relied upon by his Honour the Chief Justice in his judgment.  I have set it out in greater detail in the written submissions and I do not want to take that any further at this stage, bearing in mind the time, your Honours.  Could I go immediately to the one transaction rule and to the South Australian decision.

GUMMOW J:   What do you say it is?  You just cannot trawl through a number of cases.  Just tell us what your proposition is.  It may or may not be going to be borne out by cases of sufficiently compelling reasoning, but what is the proposition?

MR GRACE:   The proposition I suppose is best encapsulated by what is contained in section 16A(2)(c).

GUMMOW J:   Yes, and what does that state?

GLEESON CJ:   No, section 16A(2)(c) tells you that you have to take something into account, but the question is how you take it into account. You are contending for a proposition, as I understand it, that when you find that two criminal acts form part of the one course of conduct you take that into account in a particular way. What is the particular way you take it into account?

MR GRACE:   That you impose concurrent sentences.

GLEESON CJ:   So that whenever you find that two offences form part of the one course of conduct consisting of a series of criminal acts of the same or a similar character then you must impose concurrent sentences.

MR GRACE:   No, I am not saying must impose.

GLEESON CJ:   What is the rule?

MR GRACE:   The presumption is that there be concurrency, unless there is a good and identifiable reason for displacing that presumption.

GUMMOW J:   That is not what the Act says.

MR GRACE:   Yes, well, I appreciate that, your Honour, but ‑ ‑ ‑

GLEESON CJ:   We seem to know that that is deliberately what the Act does not say.

MR GRACE:   Insofar as the Act allows the application of common law principles, we say that that is not inconsistent with what the Act says.

GLEESON CJ:   Is this a refinement of the presumption of concurrency?  Your earlier submission was that if two offences are charged on the one indictment there is a presumption of concurrency.  Now you have a slightly different proposition, which is that if two offences are part of the one course of conduct consisting of a series of similar criminal acts of the same or of similar character you have that presumption.

MR GRACE:   Yes, it is the latter, your Honour, because it may be that an offence is only discovered at a very late time after a prisoner has already been sentenced and it arose at the same time as the first offence.  That is not an uncommon occurrence.

GLEESON CJ:   What about the also not uncommon occurrence where a prisoner asks for matters to be taken into account?

MR GRACE:   Yes, there is a specific provision to that effect in Part 1B.

GLEESON CJ:   What section is that?

MR GRACE: Section 16BA, and subsection (2) provides that what may be taken into account is:

all or any of the offences in respect of which the person has admitted his guilt.

GLEESON CJ:   How do you take them into account other than by increasing the severity of the punishment for the offence on which he has been convicted?

KIRBY J:   You might in a particular case, having regard to the totality principle, I suppose, say that is enough.

MR GRACE:   Yes.

GLEESON CJ:   No, he is not being sentenced.  By hypothesis we are dealing with offences of which he has not been convicted, are we not?

MR GRACE:   Yes.

GLEESON CJ:   So you are not sentencing for something of which he has never been convicted.

MR GRACE:   No. The only possible way would be to increase the sentences imposed for the sentences to which he has to be sentenced, but there is a fetter on the exercise of that discretion contained in section 16BA(4) and that is that the sentence cannot exceed the maximum that would be imposed for the instant offence.

CALLINAN J:   If you looked at the course of conduct, it might well lead you to impose higher sentences, that is, a course of conduct under (2)(c).

MR GRACE:   Yes, it may.

CALLINAN J:   It does not necessarily mean that something for the benefit of the accused is to happen.

MR GRACE:   No. Section 16A is a neutral provision in terms of benefits to the accused or the Crown on behalf of the community. I might be better able to answer the questions that have been posed to me about the one transaction rule, if I was to take your Honours briefly to what Justice Wells had to say in Attorney‑General v Tichy (1982) 30 SASR 84. At the bottom of page 92 his Honour said this in the last paragraph on that page:

It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.

GLEESON CJ:   Pausing there, do you accept that?

MR GRACE:   Yes.

According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty.  But such a logic could never hold.  When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet.  But the practice and principles ‑ ‑ ‑

GUMMOW J:   We can all read it, Mr Grace.  It is quarter to 4.  You want to fix on page 93, the underlined portions, do you?

MR GRACE:   Yes.

The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.  Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate.  Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi‑faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.  There are dangers in each course.  Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should ‑ ‑ ‑

GUMMOW J:   It seems to come down to this phrase “one multi‑faceted course of criminal conduct”.

MR GRACE:   Yes.  Then his Honour concludes by saying:

Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

If I go back to what I said some time ago, one could not imagine a better example of a course of conduct where there were a number of technically identifiable offences committed but there was only one multi‑faceted course of criminal conduct than the appellant’s conduct in this case.

GUMMOW J:   Are you saying that was a necessary conclusion?

MR GRACE:   Yes.  We say that his Honour, if he had not misdirected himself as to the facts, would have been compelled to have come to that conclusion.

KIRBY J:   That is Chief Justice Malcolm.

MR GRACE:   Chief Justice Malcolm in the court below.

KIRBY J:   But the primary judge did not misdirect himself as to the facts, or did he?

MR GRACE:   The primary judge did not.  He seems to have ignored – even though that submission was put to him that there be concurrency, he has rejected that.

GUMMOW J:   Is there any mention of it by the primary judge?

MR GRACE:   Yes, there is.

GUMMOW J:   Whereabouts?

MR GRACE:   If I could take you to page 27, first.

GUMMOW J:   No, in the reasons.

MR GRACE:   I am sorry, in the reasons, your Honour.  Yes, there is, at page 41.  He says at the penultimate paragraph on that page:

In this case, however, not only were you involved in attempting to obtain the ecstasy but also the cocaine, which was part of the package which you were to take possession of.  That, in my view, adds to the seriousness of your conduct.

GUMMOW J:   Yes, you read that to us, but apart from that there is nothing?

MR GRACE:   I do not believe so, your Honour.

GUMMOW J:   Yes.

MR GRACE:   In the event, we say that his Honour, if correctly applying the principles both of Pearce and of the one transaction rule and if properly directing himself as to the facts, his Honour the Chief Justice in the court below would have been compelled to have come to the conclusion that the learned sentencing judge was in error in his application of the applicable principles.  For that reason, the errors have been made out and the appeal should be allowed.

GLEESON CJ:   Thank you.  Yes, Mr Bugg.

MR BUGG:   Thank you, your Honours.  Your Honours, first of all, insofar as the contention on behalf of the appellant that the learned sentencing judge followed a State‑based sentencing approach and not one which is dictated primarily by the Crimes Act, if I could take your Honours to the relevant passages from the appeal book just to give some background to that position.

I will just take your Honours through the pages of the appeal book.  On page 17 and 18, clearly at that time the counsel for the prosecution was submitting to his Honour that this was a federally‑based series of offences laid under the federal Customs Act.  At page 24, when the plea in mitigation was being was being put towards the foot of the page, the learned sentencing judge said:

You might be able to assist me in this . . . we don’t have a lot of these sort of cases in this court –

clearly understanding the nature of what the offence was and clearly isolating it to a Commonwealth matter.

KIRBY J:   That cuts both ways.  That could explain why he has not dealt with it in the orthodox way of starting with the federal statute.  I mean, this is not the first time.  We see it in civil and criminal cases in federal jurisdiction judges just proceed, and parties and barristers just proceed, as if there is no federal element.

MR BUGG:   I understand, your Honour.  Throughout the exchanges which took place there is a constant reference, in my submission, to the status of this matter.  At the top of page 28 his Honour says “Generally, in Commonwealth matters” in discussing with defence counsel what the non‑parole period is, so his Honour is clearly focusing on the parole tariff that would be applicable for a Commonwealth matter.  Then, on page 29, when the prosecutor was again making submissions to the learned sentencing judge, about two‑thirds of the way down the page:

DEMBO, MR:   Except for the mention of the car, your Honour . . . I’ll just remind your Honour with respect that in Commonwealth law attempt charges are substantive offences which carry the full penalty –

and you will remember my learned friend mentioned that a moment ago in relation to the maximum penalty for attempt.

That is not in every case, of course.

DEMBO, MR:   No, not in every case but in these particular charges the attempt to possess –

Then, on page 30 at about point 3 or a third of the way down the page:

Your Honour spoke to my learned friend about the ranges and of course the courts have said that we don’t simply do an arithmetical calculation ‑ ‑ ‑

SCOTT J:   Well, you can’t do it.

Then at page 35, having discussed the quantity of drug, halfway down the page prosecuting counsel says:

I also, with respect, remind your Honour of section 16A of the Crimes Act which in essence obliges your Honour to impose –

et cetera.  Then his Honour, showing clearly what he was understanding, referred to El Karhani:

Tell me, have they put general deterrence as one of those factors in there?

Prosecuting counsel elevated your Honour Justice Kirby just a little early by saying that this was a High Court decision, but clearly the debate there was directly referable to the provisions of section 16A(2) and his Honour clearly showed an understanding and background knowledge of it. Then at pages 41 to 42, when passing sentence, his Honour said about two‑thirds of the way down the page, the paragraph commencing:

I have taken into account the authorities referred to both by your counsel and by the prosecutor –

and then refers to:

the matters contained in section 16A(2) of the Crimes Act ‑ ‑ ‑

KIRBY J:   I realise that, but that is towards the end of his…..and what is suggested to us, that like a homing pigeon he went back to his State familiarity and ‑ ‑ ‑

MR BUGG:   Yes.

GUMMOW J:   As seems to be suggested at page 35, the paragraph beginning: 

I also, with respect, remind your Honour . . . to consider section 16A(2), which itemises the matters that your Honour will take into account – general sentencing principles –

those words –

but really codified –

whatever that means. 

MR BUGG:   And his Honour, as I say, clearly shows, I would submit, a little better understanding of perhaps some of the passages that this Court has had to examine where the suggestion has been put that the sentencing judge wandered right off to another path altogether.  But if you turn to page 42, towards the end of the his Honour’s sentencing comments, he then refers to the provisions and he says: 

I fix a minimum term of 5 and a half years before you are eligible for parole. 

So he has complied with the Act and fixed a single non‑parole period.  He then goes on: 

Pursuant to the provisions of the Crimes Act –

well, he has referred, obviously, to section 19AB(1)(d), which was not referred to his Honour by prosecuting counsel or anyone else, and that is the single non‑parole period –

I am obliged to tell you that the service of this sentence will entail –

et cetera, and his Honour then clearly, when one examines the text of what he says, had in front of him section 16F(1). So it is plain, in my submission, that his Honour was not wallowing in a Western Australian environment. He clearly understood that he was dealing with a Commonwealth matter. He knew that section 16A(2) did not have a specific reference to general deterrence, but was aware of the fact that that had been highlighted by the Court of Criminal Appeal in New South Wales, and went straight to the relevant provisions at the time of passing sentence, at the relevant time of passing sentence.

If I could just take your Honours to a passage in the appeal book which, because of the Putland matter which will be before the Court tomorrow, this relevant document will be part of the material before the Court.  Page 58 of the appeal book in this matter, at paragraph 11, his Honour the Chief Justice had before him, when writing this judgment, the explanatory memorandum relating to the amendment of section 19, which has been the subject of some discussion with my learned friend.

It is my submission that those two passages from the explanatory memorandum clearly indicate that the use of cumulative or partly cumulative and concurrent sentences certainly covers quite specifically the position that my learned friend was not arguing for.  If you look at subsection (2), which was the matter of some discussion, the explanatory memorandum says: 

“Subsection (2) applies to situations where a person is sentenced to imprisonment for more than one federal offence at the same sitting.  It requires a court in such a case to direct that other sentences are to commence not later than the end of the one to commence first, ie the sentences may be concurrent, partly cumulative or cumulative.”

That addresses two issues:  firstly, the presumption of concurrence and, secondly, the point made by my learned friend in his outline of submissions as to the requirement of a sentencing judge to specify the date upon which the cumulative sentence was to commence and that there is ‑ ‑ ‑

KIRBY J:   Just whilst you are on that page, 58 and 59, do you agree that there was a mistake made concerning the calculations?  Is that your understanding? 

MR BUGG:   Yes, that is my understanding, that issue was taken with that component of the text of the court’s decision and there was a correction but, as you can see, only a partial correction. 

KIRBY J:   There do seem to have been quite a number of factual mistakes and misexpressions of the case.  I say that with respect because, having sat in Courts of Criminal Appeal, I know the pressure they work under.  It is easy enough to make a slip, but there are quite a number of them in this case. 

MR BUGG:   Yes, that is so, your Honour, I accept that, and I would come to address that separately at a subsequent time in these submissions.  The reference by his Honour to “the fast‑track” ‑ ‑ ‑

KIRBY J:   Yes, we had that in, I think, Cameron’s Case. 

MR BUGG:   You did. 

KIRBY J:   We did not know about the fast track. 

MR BUGG:   Yes.  I will try to deal with it quickly as well, your Honour. 

KIRBY J:   Do any other States of the Commonwealth call it the fast track? 

MR BUGG:   No, I think it is ‑ ‑ ‑

KIRBY J:   It is purely a Western Australian commercial‑type expression? 

MR BUGG:   ‑ ‑ ‑ an exclusive, I would not call it peculiar, term.  His Honour used that term on page 41 in passing sentence, where he said, about a third of the way down the page: 

You are, however, entitled to credit for pleading guilty on the fast‑track and accepting responsibility for your criminal conduct. 

KIRBY J:   Which page was that, I am sorry? 

MR BUGG:   Page 41, about a third of the way down, your Honour.  It starts the paragraph.  I would submit that that use of the term “fast‑track” is merely a shorthand slip, if I can use that term as well, by his Honour, because this was not a fast‑track plea.  The plea was not entered to avoid the committal proceeding.  What happened was that an election was made in the Magistrates Court, then when the amendment was made to the charges and two were deleted the plea was then entered, but the time for entering the fast‑track process had passed.

GLEESON CJ:   What is the relevance of this?

MR BUGG:   It is just a misuse of the term, and this was not a fast‑track plea.

CALLINAN J:   But it was for the benefit of the appellant very much, was it not?

MR BUGG:   Yes.

CALLINAN J:   Any error in that regard it got the benefit of.

MR BUGG:   That is correct.  Your Honour, it is my submission that his Honour clearly had in mind Cameron’s Case because of his conjunction of “and accepting responsibility for your criminal conduct” when he mentions fast‑track plea, which is clearly one of the issues that was dealt with by this Court in Cameron.  Neither defence counsel nor prosecuting counsel used the term “fast‑track” and if I can take your Honours to those two references just for completion.  Page 23, where defence counsel, about halfway down the page:

and on that withdrawal two pleas of guilty were entered in relation to the counts that are on the indictment before your Honour this afternoon.  In terms of the plea, I submit that it is a very early plea and that he should be given full discount for that plea of guilty.

CALLINAN J:   Mr Bugg, all you are really saying is that because the sentencing judge used the word “fast‑track” does not by any means indicate that he was applying a State sentencing regime.

MR BUGG:   That is right.  That is correct.

CALLINAN J:   In any event, the further answer is, if it was an error and if he was applying the Western Australian sentencing regime, then the appellant got the advantage of it.  Because you are saying that in fact he did not comply with the fast‑track regime.

MR BUGG:   Yes.

CALLINAN J:   He was later than it but he was treated as if he had.  So he has got the benefit of it.

MR BUGG:   That is right.

CALLINAN J:   Is that not the end of your submission on it?

MR BUGG:   Well, if he did, but we submit that he did not and that what his Honour did by use of the term “fast‑track” was not get himself bogged down with a Western Australian sentencing program, which is the suggestion by the appellant.  The “acceptance of responsibility” reference is in Cameron’s Case 209 CLR 339 at 346, paragraph 3. I will not take your Honours to it.

If I could just take your Honours to the discussion between counsel for the appellant and his Honour at sentencing in relation to the issue of the added seriousness of the two drugs as opposed to one.  At page 26, about two‑thirds of the way down the page, defence counsel:

District Court number.  There was 5000 tablets there, sir, similar to this and the head sentence there was 11 years’ imprisonment.  I would submit, your Honour, I think the learned prosecutor would have to agree with me, that around that mark would certainly be the head sentence starting point.

So there is an acceptance there of a starting point of 11 years.  His Honour then says:

That deals only with the ecstasy.  Here there is what might be called a fairly significant quantity of cocaine as well.

TUDORI, MR:   Your Honour, I would submit that in relation to any sentence for cocaine, that would have to be concurrent.

SCOTT J:   I wonder about that in these circumstances.

KIRBY J:   I am sorry, where is this?  Which page?

MR BUGG:   Page 26, towards the foot of the page, your Honour.

KIRBY J:   Thank you.

MR BUGG:   Counsel then says:

Your Honour, if I put it this way:  first of all, in terms of the cocaine, it’s neither here nor there whether he knew that he was receiving or was to receive cocaine but in any event he is there to commit an illegal activity –

There is then some further discussion about quantity, and his Honour has the correct purity quantity, which he put, and then there was some discussion about that.  Then returning to it, a third of the way down the page:

Yes, that’s what I understood it to be.  All right.  Yes, Mr Tudori?

TUDORI, MR:   Your Honour, I would submit it’s all one transaction.  He has gone there to collect one item.

It is interesting that following that exchange between counsel and his Honour, two‑thirds of the way down the page it is then put:

TUDORI, MR:   I would submit then if that’s the case then the head sentence would possibly have to have a starting point higher as to what I have submitted in terms of –

In other words, suggesting that instead of the cumulative sentencing process that his Honour went through, that there be a head sentence of a higher starting point than 11 years, which had been suggested to his Honour on the previous page, which in other words elevate the head sentence and then make it concurrent, which is the nature of the balance of the exchange on that page, which of course would have been an appellable error if his Honour had embarked upon that path because all he would have been doing was inflating the head sentence on count 1.

GLEESON CJ:   There are cases that say that you get the same kind of sentence or same length of sentence for heroin as cocaine.  What about amphetamines?

MR BUGG:   There is a mixture of authority on that, your Honour.  In this State certainly there has been a tendency to elevate amphetamine sentencing to a position approximating cocaine and heroin ‑ ‑ ‑

KIRBY J:   It came up in Cameron, I think, did it not?  I may be wrong, but I have certainly seen that point.

MR BUGG:   There has certainly been a gradual lifting, particularly in this State, because of the predominance and the readily availability of it on the streets.  It has been a reaction or response by the court in this State.  If I could take your Honours then to the respondent’s submissions.  There is just one aspect of that which, if I can go to the one transaction ‑ ‑ ‑

KIRBY J:   There were not two packages, were there?  It is not suggested, is it, that he knew that there were two types of drugs?  He was just a carrier for a relatively small amount to reduce his bank overdraft, so he said, and he just took one package – Chief Justice Malcolm made a mistake there saying it was two – and he did not know what it contained.  He had a suspicion.  It does seem to be one transaction, at least as I view it.

MR BUGG:   You certainly could not charge it in one account, it would be duplex.  So one has to examine how one would go about ‑ ‑ ‑

KIRBY J:   Exactly.  It is our pleading and our traditional way of going about these things that leads to the multiple counts, but the anti‑social conduct is the one act.  He is a carrier.

MR BUGG:   Well, it involves two drugs.

KIRBY J:   Is it suggested he knew that?

MR BUGG:   It is not suggested that he - it was certainly not established to any position where his Honour would have been satisfied that he knew that, but certainly within the He Kaw Teh context he pleaded guilty to the two counts of attempt.  In other words, he accepted that he was criminally responsible for attempting to obtain possession both of the cocaine and the ecstasy.  When the ecstasy arrived in the country it was in two separate containerised forms.  The ecstasy was in a plastic tube that was wrapped around the waist of the courier and the cocaine was in two pouches.  So that arrived in two separate containers.

KIRBY J:   Yes, in such a case one can understand that that might be viewed as two separate offences, but this is a man just carrying a garbage bag.

MR BUGG:   When the garbage bag was placed in the sports bag it then had two other containers in it – it had two separate packages of inert material – and the appellant before he took possession of the bag appeared to scan it with some device, and that was in the evidence before his Honour and is in the appeal book.

CALLINAN J:   Where is that evidence, Mr Bugg?

MR BUGG:   If I could ask my learned junior to ‑ ‑ ‑

GLEESON CJ:   If you do not mind me saying so, the purpose of the scanner was to see whether the bag was bugged.

MR BUGG:   Yes, and I was not there, your Honour.

KIRBY J:   It was not to discover – are there scans that show whether it is cocaine or heroin?

MR BUGG:   Page 39.  I am obliged to my learned friend.

CALLINAN J:   Mr Bugg, what were the two charges against him that were withdrawn, just in summary?  There were four originally, were there not?

MR BUGG:   Yes.  They were the knowingly concerned and the importation and they were withdrawn.

CALLINAN J:   Both.

MR BUGG:   Yes.

CALLINAN J:   In relation to each ‑ ‑ ‑

MR BUGG:   Yes.  So you had the knowingly concerned, one substance and an attempt to possess – knowingly concerned and attempt to possess.

KIRBY J:   We were told that this Court has said in, whatever it is, that it is enough that you know.  You do not have to know the differential quality of the drugs.  It is enough that you know that you are knowingly concerned in an illegal substance.

MR BUGG:   That is right.

KIRBY J:   So his plea was accurate and correct.

MR BUGG:   Yes.

KIRBY J:   It does not really add any strength to the treatment of it as differential as distinct from simply one transaction of carriage.

MR BUGG:   Yes.  There is a passage referred to in the appellant’s outline, paragraph 5.3.2. of a passage from Fox and Freiberg, 2nd edition, Sentencing:  State and Federal Law in Victoria, paragraph 9.612:

It is generally accepted that when a number of offences arise out of substantially the same act, circumstances, or series of occurrences, the presumption of concurrency should be permitted to run its course.

The learned authors of that text go on referring to a passage of Justice Wells from Dicker v Ashton and the reference is contained in that passage:

unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct.

Which, of course, is the multi‑faceted course of conduct my learned friend spoke about, but then they continue at the top of page 715, still within the same subparagraph:

The so‑called ‘continuing episode’, or ‘one transaction’ rule, provides no simple guide.  For every case that can be cited to illustrate the rule, another can be found that provides an exception, or effectively negates it.

KIRBY J:   That may be so.  Maybe that is why this case got special leave.  Maybe we ought to provide such guidance, and why is not the guidance that, given the large numbers of people in our prisons, given the great cost to individuals and to our society, where it is one transaction and given the principle in the federal sentencing law that imprisonment, loss of liberty, is a sort of last resort, why is not the correct principle that one treats a multi‑faceted transaction, especially in a case like the present, as the one instance of criminality?

MR BUGG:   If I may then perhaps give you an illustration of why?  If, for instance, a courier was to enter this country with three separate drugs, the quantities of which each were just less than the commercial quantity, that is, cocaine, heroin and ecstasy, are all under the commercial quantity but in their mass exceed a commercial quantity, which under the Act takes the maximum sentence to life, but if they were to receive concurrent sentences for each of those, relevant and determined by, let us say, the largest weight but still under a commercial quantity, that is, we are dealing with trafficable as opposed to commercial quantities, then this country is saying to every drug importer, “Bring in a mixture and you will get concurrent sentences” ‑ ‑ ‑

KIRBY J:   I take the force of that, and that really bears out the comment by the authors of this text at 715, that there are exceptions, but that case is a long way distant from the present case.

MR BUGG:   That is precisely what his Honour the sentencing judge had by way of discussion with defence counsel and defence counsel, that is, the appellant’s counsel, accepted the proposition that it was more serious that he was dealing with not just ecstasy but also cocaine, and counsel invited his Honour to deal with the more serious aspect of it by ratcheting out the starting point from beyond the 11 years which he suggested to his Honour.  So it was conceded before his Honour that this did make it more serious and therefore it had to be dealt with in some way in which the sentence reflected that more serious aspect of it, not by imposing a concurrent sentence but by actually increasing the sentence, and that was the passage to which I referred your Honour.  

So when his Honour embarked upon the course which he did, in a sense, it was on the basis that he had an understanding from counsel who said, in conclusion, at the end of that discussion, “I will think about it further and if I have any further submissions to make, I will make them.”  At the commencement of the comments on passing sentence, the invitation was given to both counsel as to whether there were any further submissions and there were not.

GLEESON CJ:   Mr Bugg, how long do you think that you are going to require to complete your argument in this case?

MR BUGG:   I would have thought no more than 15 minutes, your Honour.

GLEESON CJ:   Very well, we will adjourn now and we will resume sitting at 10 o’clock tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 22 OCTOBER 2003