K v The Queen

[2001] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S171 of 2000

B e t w e e n -

“K”

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 JUNE 2001 AT 3.17 PM

Copyright in the High Court of Australia

MR K appeared in person.

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Director for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, go ahead, Mr K.  What is it you would like to say to us?

MR K:   I do not know if your Honours read everything.

GLEESON CJ:   Yes, we have read the papers and your written argument.

MR K:   So basically I set out three grounds and the first was the fact that the manufacturing charge given – the sentence given for the manufacturing charge has started on the date of the actual sentence given, which was 16 October, which is the day that I went to actually be sentenced and that was due to the fact that Judge Bell in the District Court had given me the sentence for the escape first and then started the manufacturing charge from that day when it expired and once the CCA have changed the structure of the sentence in terms of the cumulative aspect of it into a concurrent charge I argue that they made a mistake in the sense that there was no reason why the charge for the manufacture started on 16 October, because that was the day that was – flowed from the actual charge from the escape.

That had to be served on top of the original sentence because I was in prison, I escaped from prison, and I was waiting to be sentenced on these charges.  I was – I already finished my original term which was given to me and that four months that I had been waiting after what you call the nominal date that has expired, I would have been eligible for parole.  I never applied for it because I was in custody and I was assisting the police and all these different matters that have been happening and I just do not see how they arrived at 16 October or why – what was the actual reason for it to start the sentence.  That is all I can say about the actual first ground.

The second ground is more like a technical argument, I guess, in terms of the structuring of the sentence and the fact that I originally received a two‑year sentence for the manufacturing charge and then on the appeal court that actual charge has been increased to four years, even though I got an overall decrease in my sentence for other different circumstances, that was in relation to increasing my discount given, the original District Court matter.  That is really an increase of doubling of the actual sentence of the manufacturing charge.

Thirdly, in terms of the change of the ratio of the minimum term and the additional term, the judges in the CCA have said that they have accepted the fact that there was a need for giving a special circumstance that justifies the length of the additional term, which is under section 5 of the Sentencing Act.  They have not specified in terms of why they interfered with the ratio.  I am not saying that they could not have done it, they might or might not, I do not know.  I do not think that the DPP has really addressed this issue, but I believe that the judges, if they accepted the reason for the actual section 5 applying, they have not specified why it has been changed.

GLEESON CJ:   I am just not sure I follow this.

MR K:   Sorry.

GLEESON CJ:   Which is the part of the judgment that you are complaining about here?

MR K:   About the fact that – that is at page 6, that is AB 22:

I adopt the reason of the sentencing judge for electing to impose a fixed term on the escape charge, and for varying the ratio contained –

but it was a mistake made by the judges because that is not under section 4(a) of the Sentencing Act.  It is actually 5(2), which allows you to interfere with the ratio in terms of your top and bottom or whatever, minimum term or additional term.  The Act says that you have to add the one third of the minimum term as far as the additional term goes.  So the ratio that was adopted by the trial judge would have given a three years and nine months additional term instead of the five years and the three years – sorry, the six years with the four, which I have received.

I just think that the ratio should have been preserved by the CCA because they do not give any reason for why they should be changing it.  I am not saying that they cannot change.  I am just saying that there would be – should be a reason given or explanation given in terms of why they interfered with the ratio.

There is just one more thing I would like to add to this, that so far it has taken me four years in terms of my appeal to be heard or get to this point and, unfortunately, I will be – not unfortunately, but I will be getting out from gaol in about four months and so my sentence is almost expired.  It just happened to be that I managed to come to this Court today because of various lengthy delays in terms of the CCA appeal and it took me a year to actually come to this Court and even if I, you know, by some miracle I would be granted leave, I do not think I would be able to – I was told by the Registrar it takes like eight to nine months to actually get to the final stage

of the appeal in terms of the Canberra – or I am not exactly sure about how this whole things work - I would not be receiving almost any benefit from this appeal in that sense because I will not be around to basically hear about it because I will be finishing my time and I think that is – whether it is fair or unfair, I do not know, but it is just something that I would want to add to this.

GLEESON CJ:   Whether it would be unfair would depend upon whether there was any merit in your original appeal.

MR K:   Yes, that is what I mean, but even if – I mean, I suppose I came here because I thought that I had a merit, but even if I did have a merit, I would not be receiving any benefit or any kind of adjustment to my sentence because by the time I would be actually heard I would be not around.  I would be released or deported or whatever, because I am facing deportation at the end of my sentence.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Ellis.

The applicant seeks leave to appeal against a decision of the Court of Criminal Appeal of New South Wales which on 17 March 2000 resentenced the applicant following a successful appeal by the applicant against a decision of his Honour Judge H.H. Bell of the District Court of New South Wales in connection with offences relating to prohibited drugs to which the applicant entered pleas of guilty.

The Court of Criminal Appeal in resentencing the applicant produced sentences which resulted in effect in an overall decrease of his sentence by one year.  When a Court of Criminal Appeal resentences an offender it commonly happens, and it happened in the present case, that the restructured sentence or sentences is or are imposed with an eye to the ultimate practical outcome on the offender rather than with an eye to technical considerations concerning the relationship between particular offences.

The power exercised by the Court of Criminal Appeal is a discretionary power and this Court would only consider interfering with the judgment of the Court of Criminal Appeal if it appeared that there had been an error of principle on the part of the Court of Criminal Appeal or that irrelevant considerations had been taken into account or that there had been a failure to take into account relevant considerations or that otherwise there had been a miscarriage of justice.

The applicant relied upon three matters.  The first concerned the starting date of the sentences imposed by the Court of Criminal Appeal.  That was a matter that was completely within the discretion of the Court of Appeal and there is no reason to doubt that the court well understood the practical consequences of what it was doing when it exercised its wide discretionary power in that regard.

The second matter concerned the ultimate effect of the restructured sentence and the third matter concerned the relationship between minimum and additional terms.  Once again, both of these matters involved an exercise of discretion by the Court of Criminal Appeal and there is no basis for attributing to that court any error of principle or any unfairness to the applicant.

There are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 3.30 PM THE MATTER WAS CONCLUDED