Kissner v The Queen

[1994] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S195 of 1993

B e t w e e n -

PETER EDMUND KISSNER

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 10.53 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:   May it please the Court, I appear with my learned friend, MR D. G. DALTON, for the applicant.  (instructed by Craddock, Murray & Neumann)

MR T. L. BUDDIN:   May it please the Court, I appear on behalf of the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN J:   Yes, Mr Hidden. 

MR HIDDEN:   If the Court pleases.  Your Honours, again, the application is out of time although not to any great degree, I think.  The matter is dealt with at page 70 in the application book in the statement in support of - - -

BRENNAN J:   What is your attitude, Mr Buddin?

MR BUDDIN:   There is no opposition.

BRENNAN J:   Time is extended, Mr Hidden.

MR HIDDEN:   Your Honours, the application raises two matters which are inexplicably intertwined.  The first is the pragmatic consideration which an offender ought to get for an early plea of guilty, regardless of any contrition that it might manifest and the second is the proper approach of the Court of Criminal Appeal to Crown appeals against inadequacy of sentence.

McHUGH J:   Did not Justice James consider that aspect of it?

MR HIDDEN:   What His Honour said was this - - -

McHUGH J:   Page 60?

MR HIDDEN:   Page 60, yes:

As regards the respondent’s pleas of guilty, I accept the Crown’s submission that while the respondent was entitled for utilitarian reasons to some credit for his pleas of guilty, he was not entitled to a large discount because the case against him was very strong, his pleas of guilty were to a large extent an anticipation of the inevitable and the pleas of guilty did not evidence any contrition.

Your Honours, it is our submission that that passage is an effective departure from what the court said in Winchester, (1992) 58 A Crim R 345, and we would like to take Your Honours to a passage from that case. It was a case of social security fraud over a three-year period involving a five figure sum. The court set aside a custodial sentence and substituted recognisance for a number of reasons; one of them being the early plea of guilty. At page 350, Your Honours, the Chief Judge at common law, giving the leading judgment, distinguished between the first basis on which a plea of guilty is considered; that is, evidencing contrition and perhaps prospects of rehabilitation, that is evidencing a subjective attitude on the part of the offender and, on the other hand, the second basis being a purely pragmatic reward for saving court time and money. As His Honour put it in the middle of the page:

The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the “discount” allowed for assistance given to the authorities:  Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.

Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. 

McHUGH J:   It seems economical rationalism is headed into the sentencing process.

MR HIDDEN:   Your Honours, it is a matter of notoriety that in every jurisdiction in the Commonwealth the major drain on court time and resources are long drug cases.

BRENNAN J:   Yes, and very important to those of us who work in it day by day by day.  What relevance has it got to the individual who pulled in?

MR HIDDEN:   Your Honour, long drug cases, where often the Crown case is very strong indeed, the prospects of acquittal are minimal.  There is a real pragmatic interest, hard-nosed as it is, in encouraging offenders - perhaps particularly those facing strong Crown cases - to acknowledge that fact at the outset and to plead guilty promptly.  That can only be done by real rewards being seen to be available for taking that course.  As His Honour Mr Justice Hunt said, “substantial reductions and seem to be substantial”.

McHUGH J:   A person who says, “You prove your case against me”, he gets sentence X; a person who says, “The case against me is very strong. I had better plead guilty because I will get X minus 3”.  Really, it does not seem to me to have anything at all to do with sentencing.  In fact, it is as close as I have got to being shocked, I must say.

MR HIDDEN:   Your Honour, the additional difficulty, of course, is that it is a matter of notoriety; that, as often as not, these accused have considerable resources and are not, themselves, financially restrained from conducting protracted sitting, both in a local court or a magistrate’s court to start with and, thereafter, maybe, a trial.  It needs to be said, of course, that there is an added significance in New South Wales now.  This applicant was not, at the time, able to avail himself to the sentence indication scheme.  But as Your Honours will know, there is now in New South Wales a sentence indication scheme where, in effect, an offender can get a quote.  That is after a committal for trial.  If the offender does not like the sentence postulated, he or she can simply walk away and go to trial or can take the sentence postulated with the assurance that it will be no worse than that. 

It is even more important now, Your Honours, that people be awarded for a plea of guilty in a magistrate’s court whereby they forgo the benefit of that sentence indication scheme and be seen to be rewarded for that early plea.

McHUGH J:   In my turn at the bar, the accepted doctrine was that a mere plea of not guilty or a mere plea of guilty did not alter anything in terms of sentencing.

BRENNAN J:   An exercise of the freedom of the individual puts you in danger which you can avoid by not exercising your rights.

MR HIDDEN:   Your Honour, that is no doubt so, and it is frankly acknowledged in the authorities, and acknowledged in Winchester that it is pragmatic, it is utilitarian.

BRENNAN J:   It has not been acknowledged in this Court.

MR HIDDEN:   Yes, but - it had not been.

BRENNAN J:   It has not been.

MR HIDDEN:   Yes, I understand, Your Honour.  But, the real social benefit is there if the offender, against whom there is an overwhelming case, decides not to waste an enormous amount of time and an enormous amount of money seeing what he can do to the Crown case.

McHUGH J:   That can be accepted and it is one thing if the legislature enacts legislation which acquires judges to give discounts but it does not seem to me to have anything to do with sentencing as it has been traditionally applied by the common law and the courts for more than a century.

MR HIDDEN:   Of course, Your Honours, the particular benefit here to the administration of criminal justice - and I appreciate we are talking about the administration of it - is that even in the face of a powerful Crown case there is still a great incentive for a man with considerable resources to at least run a long committal, test everything, see how it looks, maybe with a view to making his plea of guilty in the superior court look a bit more creditable because he has put a dent on the Crown case.  This man has not even done that.

BRENNAN J:   That may be so.  It may also be the fact, if somebody with the resources from drug running, runs the impossible case for an inordinate length of time and regards it all as part of the exercise of the engagement in which is he is involved, the court may take a look at him, and we will deal with him accordingly.”  But that is because of his conduct, not because of his exercising of a right to plead not guilty.

MR HIDDEN:   I understand that, Your Honour, but in my respectful submission, the court would not be able to classify the man as a professional and sentence him accordingly merely because he happened to have the resources to run protracted proceedings, in the absence of evidence of a pattern of criminal conduct.

BRENNAN J:   Having regard to the nature of the evidence against him, the known the nature of the evidence against him, and the manner of the conduct of the proceedings, it may not be impossible to come to these conclusions at all.

MR HIDDEN:   But, with respect, Your Honour, we submit that could not, of itself, amount to an aggravating factor, justifying an increase of the otherwise appropriate sentence or the - - -

MR HIDDEN:   Not an aggravating factor, a revelation of the truth, that is all.

MR HIDDEN:   Your Honours, as far as this case is concerned - and perhaps it is necessary to turn to the Crown appeal aspect of it now - it is to be borne in mind that the learned sentencing judge said in his remarks on sentence that he started with a sentence of 20 years.  These offences carried a maximum of 25 years.  His Honour considered it appropriate that a concurrent sentence should to be passed in respect of them, and I do not think anyone suggests otherwise.  Certainly, I do not recall, in the Court of Criminal Appeal, that it was agitated that there should have been cumulative sentences, and the events were close in time and related to the same pattern of behaviour.

McHUGH J:   It was common ground, was it not, between Crown and counsel for the applicant, that a sentence between 18 to 20 years head sentence was the appropriate sentence?

MR HIDDEN:   That is so.  A sentence of 20 years against an effective maximum of 25, one would have thought is a fairly severe sentence to start with, purely having regard to objective features.  It is four-fifths of the maximum sentence.  The Crown seem to be submitting that that was the starting point after taking into account all the subjective features, including the plea of guilty.  One wonders what the Crown would say the sentence ought be before those factors were taken into account.  It would have to be at least the maximum.  That cannot be right. 

Now, what His Honour then did was discount that sentence in an unspecified way for the subjective factors including a plea of guilty; apply the section 16G reduction of about one-third because of the absence of remissions in New South Wales, and arrived at the sentence which His Honour pronounced, being 10 years with a non-parole period of seven years.

Your Honours, the Crown, in the sentence proceedings, was advocating a sentence which, effectively, would have ended up about what the Court of Criminal Appeal passed, that is, 12 years with a non‑parole period of nine years.  That was well within the range of what the Crown and the District Court was advocating as the appropriate sentence.  The difference is two years.  That means a lot to Mr Kissner but, with respect, what does that mean to the community?  Where is the sense of public outrage which the sentence originally passed might have created in the eyes of the community?  Where is the error of principle?  In our respectful submission, there is none.  Your Honours, I do not use this expression in any trivialising way, but this was tinkering with a sentence.  Two years is a long time for Mr Kissner, but both sentences were long sentences.  The one he started with was long, the one he ended up with was long.  To the community, the difference is insignificant.  This is not what Crown appeals are about. 

The court has said, of course, that in arriving at the sentence of 12 years with a non‑parole period of nine years, it was having regard to the leniency which is always extended when a court intervenes on a Crown appeal, and the court said it is less than it would otherwise have imposed if the matter were at large afresh.  But the curious feature is, Your Honours, that the sentence which the court passed is effectively that which was advocated by the Crown’s representative in the District Court.

BRENNAN J:   If special leave were granted, this Court would reiterate the views that it has expressed about Crown appeals.

MR HIDDEN:   Your Honour, it would but, with respect, experience demonstrates that sometimes this Court might have to.  In our respectful submission, this case demonstrates that the time has come for the Court to say it again.

McHUGH J:   This is powerful advocacy on your part. The bottom line is that we would just really be tinkering with the sentence ourselves. 

DAWSON J:   This Court gave special leave in no case in relation to sentencing for 74 years of its existence.

MR HIDDEN:   I know, Your Honour.

DAWSON J:   It was only with Power’s case that it broke that rule and perhaps it has been a little bit indulgent since then.

MR HIDDEN:   Yes, I appreciate that, Your Honour, and we are aware of the reasons why the Court has taken that view, particularly the local nature of sentencing.  But sometimes principles of sentencing of nationwide significance arise.  This does raise principles such as that, although principles which have been stated elsewhere.  Of course, sentencing in federal drug matters, should not, in our submission, be seen as a local matter.  Patterns differ from State to State and most States still have remissions but, none the less, we are dealing with a federal crime for which people can be prosecuted all over the nation.  May it please the Court.

BRENNAN J:   The Court need not trouble you, Mr Buddin.

This case raises no question of principle which requires consideration by this Court as a matter of general public importance.  Accordingly special leave will be refused.

AT 11.08 AM THE MATTER WAS ADJOURNED SINE DIE