Klobucar v The Queen
[2014] ACTCA 6
•28 March 2014
ANDROS STEVE KLOBUCAR v THE QUEEN
[2014] ACTCA 6 (28 March 2014)
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – whether finding of fact was open – whether conviction was unsafe and unsatisfactory because it was dependent upon testimony given five years after offence – whether trial judge’s recollection and assessment of testimony was compromised by delay in giving judgment.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against sentence – whether adequate weight given to principle of parity – whether sentence manifestly excessive – whether trial judge erred by using a tariff.
Criminal Code 2002 (ACT) ss 45, 600, 603
Supreme Court Act 1933 (ACT) s 37O
Haros v Linfox Australia Pty Ltd [2012] FCAFC 42
Hili v The Queen (2010) 242 CLR 520
Kelly v The Queen [2011] VSCA 10
Lowe v The Queen (1984) 154 CLR 606
M v The Queen (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Monie v Commonwealth of Australia (2005) 63 NSWLR 729
Nguyen v The Queen [2013] ACTCA 11
Pavicevic v The Queen [2010] ACTCA 25
Postiglione v The Queen (1997) 189 CLR 295
R v Griggs [1999] FCA 1573
R vHillier (2007) 228 CLR 618
R v Pan [2005] NSWCCA 114
Tak Fat Wong v The Queen (2001) 207 CLR 584
WA v The Queen [2011] ACTCA 4
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 41 – 2013
No. ACTCA 63 – 2013
No. SCC 186 of 2010
Judges: Murrell CJ, Burns and Ross JJ
Court of Appeal of the Australian Capital Territory
Date: 28 March 2014
IN THE SUPREME COURT OF THE ) No. ACTCA 41 – 2013
) No. ACTCA 63 – 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 186 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANDROS STEVE KLOBUCAR
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Murrell CJ, Burns and Ross JJ
Date: 28 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 41 – 2013
) No. ACTCA 63 – 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 186 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANDROS STEVE KLOBUCAR
Appellant
AND:THE QUEEN
Respondent
Judges: Murrell CJ, Burns and Ross JJ
Date: 28 March 2014
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The appeal
The appellant appeals against his conviction and sentence for the offence that on 21 August 2007 at Canberra in the Australian Capital Territory he procured Yaresul Silkeci to traffic in a controlled drug other than cannabis, namely methylamphetamine. The offence involves a contravention of ss 603 and 45 of the Criminal Code 2002 (ACT) (Criminal Code).
The alleged co-offender, Mr Silkeci, pleaded guilty to the offence that on 21 August 2007 he trafficked in the controlled drug methylamphetamine.
Between 30 January and 1 February 2013, the appellant was tried by judge alone. On 18 June 2013, he was found guilty. On 19 September 2013, he was sentenced to three years’ imprisonment with a non-parole period of 15 months. The offence carries a maximum available penalty of 10 years’ imprisonment.
The grounds of appeal against conviction are:
1)It was not open to the trial judge to find that Mr Silkeci believed that at least some part of the drug was intended for sale by the appellant.
2)The conviction is unsafe and unsatisfactory.
3)By reason of the delay in giving judgment, the judge’s recollection and assessment of witnesses was compromised, and there is a reasonable apprehension that the judge did not properly grapple with the issues, and that the appellant was denied a fair trial.
The grounds of appeal against sentence are:
4)The judge failed to give adequate weight to the principle of parity with Mr Silkeci in the manner in which she ordered that the sentence be served.
5)The sentence is manifestly excessive.
6)The judge used the sentence in Nguyen v The Queen [2013] ACTCA 11 (Nguyen) as a starting point from which to determine the sentence.
7)The judge used the sentence in Nguyen and that imposed on Mr Silkeci as a “tariff” from which the appellant’s sentence was derived.
The trial
At the trial, few facts were in dispute. In her written reasons, the trial judge outlined the facts advanced in the prosecution case as follows:
8. On Tuesday 21 August 2007, following a series of text messages received by Mr Silkeci from Mr Klobucar’s phone, and a phone call between Mr Silkeci and Mr Klobucar, Mr Klobucar delivered a package to Mr Silkeci. At Mr Klobucar’s request, Mr Silkeci drove to Sydney with the package, met a person as instructed by Mr Klobucar, and exchanged the first package for another package. Mr Silkeci was stopped by police on the Federal Highway shortly after he re-entered the ACT on his way back from Sydney. Police officers had been intercepting Mr Klobucar’s phone calls and had also observed Mr Klobucar give the first package to Mr Silkeci before Mr Silkeci went to Sydney. The package was seized from Mr Silkeci’s car and was on analysis found to contain 144.002 gm of white powder, containing methylamphetamine at “not less than 59.4% or 85.470 grams as the base”. Mr Silkeci knew that what he was collecting from Sydney and bringing back to Mr Klobucar was drugs.
There was evidence that, on 20 August 2007, the appellant spoke by telephone to his supplier and the supplier pressured him to proceed with a transaction on that day. The appellant immediately contacted Mr Silkeci by text message, asking him to respond urgently while he, the appellant, would “get nvats ready” i.e. get money ready. In a subsequent text message, the appellant informed Mr Silkeci that he was available to give the money to Mr Silkeci later that afternoon. The appellant then telephoned Mr Silkeci, who said, “I was waiting for you to call me.” Mr Silkeci sought no explanation of the appellant’s statement that “[I]t’s crucial bro otherwise we’ll miss the boat for a long time you know.”
Mr Silkeci agreed to go to Sydney to pick up the drug “ice” and bring it back to Canberra. He was to be paid $500 for his assistance. There was a meeting between the appellant and Mr Silkeci at which Mr Silkeci was given a “tightly sealed” package containing money for the drug. There was no evidence that Mr Silkeci knew how much money was in the package. The sum of $100 was sitting on top of the package (inferentially, it was an advance on the total sum due). Mr Silkeci collected the drug from the location to which he was directed by the appellant. When asked whether he remembered how the drug was packaged when it was given to him, Mr Silkeci said (AB 67):
I think it was in a sandwich bag.
Police found the drug in Mr Silkeci’s car. It was wrapped in several layers of newspaper. Later, the newspaper was opened and found to contain a clear plastic snaplock sandwich bag of the drug (the photos were Exhibit D at the trial, AB 247–255).
Mr Silkeci was asked what he thought would happen to the drug once he delivered it to Canberra. He replied (AB 68) that he didn’t know, adding:
I don’t ask questions when I pick up something and drop it off.
Mr Silkeci was not asked whether he had seen the drug, nor was he questioned about whether he knew the quantity of the drug that was in the package.
On the appeal, counsel for the appellant agreed that the judge had given a “careful and accurate exposition of the law.” In her written reasons, her Honour stated (AB 21):
34. In determining whether Mr Klobucar was guilty of the offence with which he has been charged, I will consider whether the prosecution has established beyond reasonable doubt the following elements:
(a)That Mr Klobucar’s conduct in fact procured Mr Silkeci to commit the trafficking offence (Criminal Code s 45(2)(a)).
(b)That when carrying out his conduct, Mr Klobucar intended it to procure Mr Silkeci to commit the trafficking offence (Criminal Code s 45(2)(b)).
(c)That Mr Silkeci committed the trafficking offence (CriminalCode s 45(3)); although s 45(3) strictly speaking clarifies that s 45(2)(a) requires the trafficking offence to have been committed rather than identifying a third element for the procuring offence, it is convenient to deal with the two aspects of s 45(2)(a) separately given that they relate to conduct by different people.
The only live issue at the trial related to the adequacy of the evidence in relation to element (c): When he transported the drug, did Mr Silkeci believe that the appellant intended to sell it?
Ground 1. Was it open to the judge to find that Mr Silkeci believed that at least some part of the drug was intended for sale?
“Sell” is defined in s 600 of the Criminal Code as follows:
sell includes –
(a)barter or exchange; and
(b)give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and
(c)agree to sell.
Commencing at [95] of her reasons, her Honour dealt with Mr Silkeci’s knowledge about the drug. At [102]–[104] (AB 33 and 34), her Honour said:
102.Mr Silkeci’s memory that the drugs were packaged in a sandwich bag satisfies me that at some stage before the package was seized by police, Mr Silkeci had become aware that inside the newspaper wrapping was a clear plastic “sandwich bag”. Given that the bag was a clear plastic one, and that it would not have been identifiable as a “sandwich bag” unless Mr Silkeci had seen enough of the bag to estimate its size, I am also satisfied that he was aware that the bag contained a substantial quantity of white powder. Furthermore, Mr Silkeci understood that his actions in collecting the drugs in Sydney and driving them straight back to Canberra were worth $500 to Mr Klobucar.
103.Despite Mr Silkeci’s evidence that he didn’t know what was going to happen to the drugs once they got back to Canberra and that he didn’t ask questions when he picked things up and dropped them off, I am satisfied beyond reasonable doubt that Mr Silkeci believed that at least some part of the substantial quantity of drugs he was transporting was intended for sale rather than for Mr Klobucar’s own personal use. I am satisfied of that because I consider that it is the only rational inference from the evidence I have outlined about Mr Silkeci’s long-term drug use and what he knew about what was in the package he was bringing to Canberra. Indeed defence counsel conceded in closing submissions that if Mr Silkeci had known how much money he had handed over or what quantity of drugs he had received in return, an inference could have been drawn that Mr Silkeci believed the drugs were intended for sale.
104.I note in relation to this finding that during closing submissions, the prosecutor conceded that Mr Silkeci had not given evidence of having opened the package of drugs. However, the evidence I have relied on was not evidence of Mr Silkeci opening the package but evidence of Mr Silkeci’s knowledge of how the drugs were packaged, which Mr Silkeci could have obtained from opening the package during his trip from Sydney or alternatively, for instance, from having witnessed the package being wrapped before it was handed over to him.
In submission, the appellant emphasised that Mr Silkeci was not questioned about whether he had seen the drug or knew the quantity of the drug that was in the package, nor was there a challenge to his evidence that he did not know what would happen to the drug once it reached Canberra. The appellant described the expression “sandwich bag” that had been used by Mr Silkeci as “equivocal.” It was submitted that, in those circumstances, there was no adequate basis upon which the judge could conclude beyond reasonable doubt that Mr Silkeci believed that part of the drug was for sale.
The judge was required to apply her common sense. At [103] it is plain from her Honour’s reasons that she did not overlook Mr Silkeci’s assertion that he did not know what would happen to the drug after it was delivered to the appellant. She was entitled to reject that assertion at face value but accept Mr Silkeci’s evidence that, when the drug was given to him, he saw that it was in a sandwich bag. She was entitled to conclude that what Mr Silkeci observed when he saw the drug in a sandwich bag was what is depicted in Exhibit D, i.e. a substantial quantity of white powder.
Assuming that the case in relation to Mr Silkeci’s belief was a circumstantial case then, in accordance with the decision of Gummow, Hayne and Crennan JJ in R vHillier (2007) 228 CLR 618 at 637 (Hillier), when determining whether the offence was established, her Honour was required to consider and weigh all the circumstances established by the evidence.
Her Honour’s comprehensive reasons show that she did consider all the circumstances, including the evidence showing that Mr Silkeci knew that he was carrying a substantial quantity of white powder, the conversation between the appellant and Mr Silkeci on 20 August 2007, and the nature of the transaction in which Mr Silkeci engaged whereby he, a drug addict, undertook an urgent and lengthy trip in return for the payment of $500 but did not trouble to enquire as to the precise nature of the mission. There was ample evidence upon which her Honour was entitled to conclude beyond reasonable doubt that Mr Silkeci believed that at least some part of the drug was intended for sale, i.e. that no other inference was reasonably open on the evidence.
Ground 2. Was the conviction unsafe and unsatisfactory?
The appellant submitted that the judge’s verdict was unreasonable or unsupportable because her Honour’s verdict depended on the reliability of Mr Silkeci’s evidence, and the reliability must have been eroded by the passage of five years between the alleged offence and the trial.
Section 37O(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) relevantly provides:
(2)The Court of Appeal on an appeal against conviction must—
(a)allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or
...
(iii) on any other ground there was a miscarriage of justice;
...
The High Court in M v The Queen (1994) 181 CLR 487 at 493–494 (citations omitted) (M v The Queen) set out the principles to be applied by appellate courts when no affirmative error has been established but the verdict is said to be unsafe or unsatisfactory:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
...
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
That passage from M v The Queen was endorsed in Hillier (a circumstantial evidence case) by Gummow, Hayne and Crennan JJ. In WA v The Queen [2011] ACTCA 4, which was not a circumstantial evidence case but one concerned with the credibility of the complainant, this Court noted the importance of the passage in M v The Queen; it both spells out what an appellate court should look for when evidence is said to lack credibility, and it reinforces the need to consider the whole of the evidence when considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
At the trial there was very little cross-examination of Mr Silkeci and almost no challenge to his evidence. The transcript discloses no obvious difficulty or inadequacy in relation to his memory. His evidence in relation to the sandwich bag sits well with the photographic evidence in Exhibit D. Nothing causes this Court to question the judge’s reliance on Mr Silkeci’s evidence.
Ground 3. By reason of the delay between trial and judgment was the appellant denied a fair trial?
The appellant submitted that, because there was a delay of 16 months between trial and judgment, the judge’s recollection and assessment of witnesses was compromised, giving rise to a miscarriage of justice within the meaning of s 37O of the Supreme Court Act.
Delay impacts upon the traditionally recognised advantage held by a trial judge of having the opportunity to see and hear the witnesses give their evidence. In Monie v Commonwealth of Australia(2005) 63 NSWLR 729 there had been a 17 month delay in delivering judgment in a civil trial. At [43], Hunt AJA (with whom Bryson JA agreed) set out the approach that should be taken on appeal when a complaint is made about the consequences of a judge’s delay in giving judgment. In summary, his Honour said:
The trial judge’s advantage of having seen and heard the witnesses give their evidence weakens with time and, where there is a significant delay between seeing and hearing witnesses and the delivery of judgement, “the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual findings made”, for example by reference to contemporaneous notes that record the judge’s impression of witnesses.
If a judge fails to give specific and satisfactory reasons for accepting or rejecting important evidence and the transcript does not clearly explain the judge’s findings, the appellate court should give careful scrutiny to the findings.
The consequences of a delay in giving judgement extend beyond the diminution of the judge’s capacity to properly assess witnesses. The stress that a judge feels when he or she has a long-delayed judgement may cause the judge to deliver a rushed decision that does not thoroughly deal with significant issues. Further, a long delay may cause the losing party to form a belief that the judge has been unable to grapple with the issues and, in the end, has resorted to the easiest decision.
There is no doubt that a delay of 16 months between hearing a criminal trial and delivering the verdict is unacceptable. However, the Court is not persuaded that the delay impacted upon the quality of the judgment that was delivered in this case. At the trial, there was no significant attack on the reliability of Mr Silkeci or any other witness. Like the case of Haros v Linfox Australia Pty Ltd [2012] FCAFC 42, where the judgment was delayed by 13 months, this case is not one in which the judgment depended on the judge’s observations of the demeanour of witnesses, or on a preference for the evidence of one witness over that of another.
Her Honour’s decision was comprehensive and well-reasoned, both in relation to the facts and the law. There is no indication that the judgment was influenced by pressure resulting in a rushed decision. It cannot reasonably be maintained that her Honour “resorted to the easiest decision.”
Ground 4. Did the trial judge fail to properly apply the principles of parity?
Mr Silkeci received a sentence of 27 months’ imprisonment, of which 15 months were to be served by periodic detention and 12 months were to be suspended. The appellant was sentenced to three years’ imprisonment with a non-parole period of 15 months.
The appellant does not complain about the length of his sentence. Rather, he complains that, unlike Mr Silkeci, he is required to serve part of the sentence by way of full-time imprisonment, creating a “disproportionate disparity” between his sentence and that of Mr Silkeci.
In Lowe v The Queen (1984) 154 CLR 606 at 623 (Lowe), Dawson J, with whom Wilson J agreed, summarised the parity principle as follows:
Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.
At 610–611, Mason J said:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.
Referring to Lowe, in Postiglione v The Queen (1997) 189 CLR 295 (Postiglione) Dawson, Gaudron and Kirby JJ endorsed the proposition that equal justice requires that, as between co-offenders, there should not be a marked disparity in sentence that “gives rise to a justifiable sense of grievance” and, that any sentence that offends that principle should be reduced. However, at 301–302 Dawson and Gaudron JJ observed:
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
At 338 (citations omitted) Kirby J stated:
Due allowance will be made for their respective criminality. Due allowance will also be made for their differing antecedents, personal circumstances and mitigating factors. But if, having made these allowances, the resulting disparity is clearly unjustifiable, the appellate court must intervene for otherwise it will condone the "badge of unfairness."
In R v Pan [2005] NSWCCA 114 Johnson J at [34] (Pan) noted that the test for determining whether there was a legitimate sense of grievance is objective not subjective; whether a reasonable mind looking at what has happened overall would see that the offender’s grievance is justified.
This Court in Pavicevic v The Queen [2010] ACTCA 25 applied the law as enunciated in Lowe, Postiglione and Pan. More recently, in Kelly v The Queen [2011] VSCA 10 the Victorian Court of Appeal affirmed the principle of parity.
In sentencing the appellant, her Honour considered the objective circumstances of the offence. She found that the appellant was the “initiator of the trafficking” who “was responsible for the enterprise and its details...” She considered the appellant’s subjective circumstances. She compared the appellant’s role to that of Mr Silkeci, who “performed a subordinate role as Mr Klobucar’s agent and courier.” Her Honour considered the objective and subjective features that had moved Neild AJ to sentence Mr Silkeci to 27 months’ imprisonment, reduced from 30 months for his guilty plea, to be served by 15 months of periodic detention and the remaining 12 months to be suspended.
Both her Honour’s words and the sentence itself establish that her Honour made “due allowance for the respective criminality” of the appellant and Mr Silkeci, and took into account Mr Silkeci’s plea of guilty, different criminal history and other differences in the subjective circumstances of the appellant and Mr Silkeci. The sentences reflect “due proportion”, demonstrate no unjustifiable disparity, and give rise to no objectively legitimate sense of grievance.
Ground 5. Was the sentence manifestly excessive in relation to the manner in which it was to be served?
The appellant does not submit that her Honour was wrong to conclude that no sentence other than imprisonment was appropriate, or that the sentence was manifestly excessive in length. The only complaint relates to the manner in which the sentence is to be served.
While the Court should not approach sentencing in a mathematical way, the Court notes that the non-parole period of 15 months represents less than 50% of the total term, significantly less than is commonly imposed in the ACT.
Taking into account the maximum available penalty, relevant sentencing purposes (which include general deterrence) and the objective and subjective features of the case, it is clear that the sentence imposed by her Honour was not manifestly excessive in relation to the manner in which it was to be served.
Grounds 6 and 7. Did the judge err in the way in which she relied upon the sentences imposed in the matters of Silkeci and Nguyen?
The appellant complains that her Honour used the case of Nguyen and the sentence imposed on Mr Silkeci as providing a “starting point” or “tariff’ for the imposition of the sentence that she imposed on the appellant. The appellant contends that her Honour departed from the proper approach of “instinctive synthesis” that was endorsed by the High Court in Markarian v The Queen [2005] HCA 25 (Markarian) and instead adopted the mathematical or “two-stage approach” that was criticised in Tak Fat Wong v The Queen (2001) 207 CLR 584.
The appellant’s complaint is based on the following remarks of her Honour (AB19):
In determining sentence, I have used the sentences imposed on Mr Silkeci and Mr Nguyen as the parameters for an appropriate sentence. Given Mr Klobucar’s slightly better criminal record, I started with a sentence slightly lower than Mr Nguyen’s, which I have then adjusted downwards to take account of the delay in finalising this matter and the sentence imposed on Mr Silkeci (although not so far as to match Mr Silkeci’s sentence).
In Nguyen, the Court of Appeal upheld a sentence of four and a half years with a two-year non-parole period that her Honour had imposed for an offence of trafficking methamphetamine. The amount of the drug was 71 grams and the offence was committed for financial gain. The appellant had a relatively minor record for drug offences and he advanced strong subjective circumstances.
In Markarian at [39] the plurality stated:
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison.
Similarly, in R v Griggs [1999] FCA 1573 at [18] (citations omitted) Miles J stated:
To the extent that a “tariff-based” approach, based on an acceptable “range” of sentences for an offence, may have been seen in previous decisions of this Court, such as R v Jurkovic and R v Suen, it may be taken that the previous approach is now regarded as erroneous.
On the other hand, in order to promote consistency in sentencing, courts should have regard to what has been done in similar cases. Similar cases may provide guidance and may stand as a yardstick against which to examine a proposed sentence, although the sentencing court must carefully examine all the circumstances underpinning any past sentence upon which it intends to rely for guidance: Hili v The Queen (2010) 242 CLR 520 (Hili).
In her Honour’s sentencing remarks, she did not employ the expressions “starting point” or “tariff.” In a practical sense, her Honour did not use the decisions in question to provide a “starting point” or “tariff.” Perhaps the word “parameters” could have been more felicitously chosen, but the decision subject to appeal must be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
When her Honour’s reasons are read as a whole it is apparent that the comparative task actually undertaken was entirely appropriate. She merely used the sentences imposed upon Mr Nguyen and Mr Silkeci for guidance, and examined the circumstances underpinning those sentences in the manner approved in Hili.
The appeal should be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 28 March 2014
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Kamy Saeedi Law
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 11 February 2014
Date of judgment: 28 March 2014
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