Johnson v The Queen

[2003] HCATrans 264

[2003] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P50 of 2002

B e t w e e n -

CHAD JOHNSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 AUGUST 2003, AT 9.30 AM

Copyright in the High Court of Australia

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

MR R.J.H. MAIDMENT, SC:   If the Court pleases, I appear with my learned friend, MR D.N. ADSETT, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Grace.

MR GRACE:   If your Honours please.  Could I take you firstly to paragraph 26 of the judgment of the court below, which is set out at pages 51 and 52 of the application book.  That paragraph is a discussion in the judgment following upon the reference at paragraph 23 to the joint judgment in Pearce’s Case and the statement made by his Honour the Chief Justice, Chief Justice Malcolm, was in answer to the proposition that the principle in Pearce’s Case had not been followed.  His Honour said this:

In my opinion, the application of that approach in the present case would obscure the fact that the applicant took possession ‑ ‑ ‑

GUMMOW J:   We are more interested, Mr Grace, in finding out what was the legal structure in which this sentencing process has been conducted.  In particular, what do you say about paragraphs 16 and 17 of Mr Adsett’s written submissions of 7 August?  Whilst it is true that the sentencing judge at page 33, point 9 referred to section 16A of the Crimes Act, that is the only occasion in which any reference seems to have been made, either by the sentencing judge or the Court of Criminal Appeal.

MR GRACE:   Yes.

GUMMOW J:   These principles for which you contend and you say were not applied have to be read with or against the Crimes Act provisions to see how they mesh.

MR GRACE:   Yes, they do.  We have no quarrel with what Mr Adsett has said at paragraphs 16 and 17.  Your Honours, of course would be aware of the submissions that have been filed on behalf of the applicant in respect of the request by the Court, those submissions being filed yesterday.

KIRBY J:   It is quite a distinct statutory regime as I remember it in the Court of Criminal Appeal days and in a case called El Karhani I set out in that court the quite detailed steps that you have to take to ensure compliance with the federal regime.

MR GRACE:   Yes, that is correct.

KIRBY J:   And I think the statute also says you have to explain it to the accused or the prisoner how you are applying that regime.  There is something to that effect in the statute.

MR GRACE:   Yes, there is.

KIRBY J:   This is just yet another case, unfortunately, where it seems to have sailed on as if it is within State jurisdiction, but it is not.

MR GRACE:   That is right, your Honour.

GUMMOW J:   Your draft notice of appeal does not seem to encompass these problems, does it?

KIRBY J:   You see, that may be a special leave point of its own, how the Pearce, Mill’s points fit into the federal sentencing statute.

MR GRACE:    Yes.  Well, El Karhani’s Case itself indicated that common law principles still are encapsulated within the realm of Commonwealth sentencing because the operative words contained in section 16A, including the words “take into account . . . the following matters” and a lot of factors are enumerated, clearly allowed other factors to come into play and in El Karhani’s Case I think the issue was whether general deterrence ‑ ‑ ‑

KIRBY J:   That is right.

MR GRACE:   ‑ ‑ ‑ because it was not specifically mentioned in section 16A(2) whether that was a factor to be taken into account in Commonwealth sentencing, and your Honours’ Court found that it did properly include considerations of general deterrence.

KIRBY J:   I am not saying that the points in Mill and Pearce are not encompassed in federal sentencing.  I am just saying that your starting point has to be the federal statutory regime, then you have to, after you have got through that gateway, then apply residual common law principles, and this just does not seem to have progressed in that manner.  It may not ultimately matter, I am not sure.

MR GRACE:   No, it does not.  The matter is complicated by the fact that we would submit that at common law the principles for which we argue are encapsulated in the sentencing for Commonwealth offences.  In each State and Territory there are statutory provisions that deal, for instance, with

concurrency or cumulation, and it is generally the case that in all Australian States and Territories there is a presumption in favour of concurrency.  That does not mean that exercises of discretion for cumulation would necessarily disclose error, but one must start from that prima facie presumption and we would submit that a proper consideration of the provisions in section 16A(2) would reveal somewhat of an acceptance by the Federal Parliament of the common law presumption in favour of concurrency.  That simply has not been recognised in the reasons of the learned sentencing judge or in any part of the reasons of the court below.

KIRBY J:   Have you covered that point in your grounds of appeal?

MR GRACE:   Yes.  Well, we would submit that is covered.

GUMMOW J:   Whereabouts?

MR GRACE:   In ground 2.1.

GUMMOW J:   What page, Mr Grace?

MR GRACE:   Page 73.

GUMMOW J:   Thank you.

KIRBY J:   It is not specifically mentioned?

MR GRACE:   No, it is not specifically ‑ ‑ ‑

GUMMOW J:   No, it would have to be improved if you were granted leave. 

MR GRACE:   Yes.

GUMMOW J:   I think at this stage we would be assisted to hear from your opponent, Mr Grace.

MR GRACE:   Yes, thank you.

GUMMOW J:   Yes, Mr Maidment.

MR MAIDMENT:   If it please the Court, in our respectful submission, although inarticulately ‑ ‑ ‑

GUMMOW J:   That is right, and inarticulation is just not good enough on one way of looking at it.

MR MAIDMENT:   Yes.

KIRBY J:   It is not an uncommon problem.  Australians tend to live in their States and they forget that there is federal jurisdiction and then they forget that in this particular case that it is just not an unimportant thing because the Federal Parliament has laid down a whole construct of how you approach sentencing, and then the residual common law principles are after you have dealt with it under the statute.

MR MAIDMENT:   Yes.

KIRBY J:   There was a throwaway line at the end of ‑ ‑ ‑

GUMMOW J:   There was a reference at page 38 in the amended grounds in the appeal in Western Australia to section 19, but that seems to be the only ‑ ‑ ‑

MR MAIDMENT:   Yes, that concerns the dates upon which each sentence is to commence.

GUMMOW J:   Yes.

MR MAIDMENT:   That was dealt with separately, of course, in the judgment of the court below. 

KIRBY J:   Why is it not a special leave point that, first, there is a suggested disparity between different jurisdictions in how Pearce and Mill worked together and, second, that there is a question as to how those principles work in the context of the federal Crimes Act sentencing procedure where that has not, on the face of things, been carried out in the manner suggested in cases like El Karhani.

MR MAIDMENT:   Yes.  Well, if I can just say in relation to the latter point, your Honours, I accept your Honour Justice Gummow’s point about it being highly desirable at least, we would submit, to articulate the particular sections which apply.  It is clear, in our respectful submission, that the principles that emerge from section 16B and section 16A(2) were applied.  In that sense, we would respectfully submit that this is not a suitable vehicle for the grant of special leave on that aspect of the matter. 

GUMMOW J:   It is a visitation point, what Sir Gerard Brennan used to call a visitation point, if anything.

MR MAIDMENT:   If anything, yes.

KIRBY J:   It is a very common problem.  Sitting here, we see it very often in civil and criminal matters that Australian lawyers just do not tend to realise the significance of federal jurisdiction, which is a constitutional notion.

MR MAIDMENT:   Yes.

GUMMOW J:   They would much rather talk about decided cases.

KIRBY J:   They love judges and hate statute.

MR MAIDMENT:   Yes, but, nevertheless, if they apply the principles that emerge from the statute, in our respectful submission, there is no injustice done.  In this case, clearly, there is ‑ ‑ ‑

GUMMOW J:   It is a question of whether it has been seen to be done.

MR MAIDMENT:   Your Honour, in our submission, it is clear from both the judgment of the sentencing judge and of the court below that it was seen to be done from the reasons provided in both courts and, in that sense, we would submit it is clear that the principles set out in both section 16B and section 16A were applied.  We accept, of course, that there is an argument that our learned friend is able to articulate  ‑ ‑ ‑

GUMMOW J:   Yes, what do you say on that?

MR MAIDMENT:   ‑ ‑ ‑ as the application of the principle emerging from Mill and Pearce.  In our submission, both of those cases can sit well together and Pearce should not be seen as overruling Mill or, indeed, restricting the application of Mill and, your Honour, indeed, in Pearce the relevant portion of the judgment of the Court beginning at page 623, paragraph 45 ‑ ‑ ‑

GUMMOW J:   I am sorry, page?

MR MAIDMENT:   Sorry, it is page 623, your Honour, paragraph 45, the last line on the page:

To an offender, the only relevant question may be “how long” and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender.  Such an approach is likely to mask error.  A judge sentencing an offender for more than one offence must fix –

and it is those words that are relied upon principally, as we understand it, by our learned friend –

an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

GUMMOW J:   The complaint is, looking at what Justice Scott did – looking at what Chief Justice Malcolm said about it, paragraph 26 on page 51, or perhaps paragraph 24 on page 51.  That is where the problem arises, is it not?

MR MAIDMENT:   Yes, it is.  That is absolutely the nub of the problem, we accept that, but the same injustice does not arise per se as arose in Pearce, for instance, where there clearly was punishment exacted in precisely the same term of imprisonment twice for effectively the same offence which incorporated the grievous bodily harm element of the offence.  That same injustice does not arise here.  Indeed, it really goes the other way in the sense that the sentence that was fixed for the cocaine offence was less than would have been fixed if the principle in Pearce had been applied.  So that does not arise. 

The passage that I have just read from Pearce separates the approach which was proposed as the proper one from the application of the totality principle, indeed, those were the last words of the passage.  So one approaches it on the basis of fixing an appropriate term then looking at the totality principle.  Certainly a sentence was fixed here in relation to the cocaine offence, that being five years, albeit that the sentence was selected as part of the application of the totality principle. 

We accept that it was not the most clean way of dealing with the matter and that it certainly is arguable that the preferable approach would have been to select what would have been the appropriate offence for that offence alone and then look at the question of the extent to which there should be cumulation of the sentence on the cocaine matter with that on the ecstasy matter in accordance with the preferred method set out in Mill.

We accept that that is the position and that was the position adopted by the trial judge.  Nevertheless, ultimately the sentence that was selected was clearly regarded by the court below as being within the range, and we would respectfully submit that it was within the range of sentences available to the learned sentencing judge by proper application of the totality principle.  For that additional reason, we would respectfully submit that this is not a case where special leave should be granted.

GUMMOW J:   Yes, thank you, Mr Maidment.  We do not need to hear you in reply, Mr Grace.  There will be a grant of leave in this matter but you will need to amend your draft notice of appeal.

MR GRACE:   Yes, your Honour.

GUMMOW J:   Unless either of you wishes to suggest to the contrary, we will proceed on the basis it is a half‑day case and it will be listed in Perth for the sittings commencing in the third week of October.

MR GRACE:   If your Honours please.

MR MAIDMENT:   If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 9.47 AM THE MATTER WAS CONCLUDED