Kontorinakis v The Queen

[1995] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S102 of 1995

B e t w e e n -

KOSTAS KONTORINAKIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 12.06 PM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant. (instructed by Trevor Nyman and Company)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   May it please the Court, I appear with my friend, MR P.G. BERMAN, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Mr Odgers.

MR ODGERS:   Thank you, your Honours.  The first matter is the matter is slightly out of time and the applicant asked for an extension of time.

DAWSON J:   How slightly?

MR ODGERS:   I think it is about a month, your Honour.  The explanation for the delay is at application book page 30, your Honour.

DAWSON J:   Well you can proceed to the merits of the application, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  If I might deal firstly with the application of section 12 of the Criminal Appeal Act.  Do your Honours have a copy of that provision?

DAWSON J:   Yes, we do.

MR ODGERS:   Your Honours, it is the applicant’s submission that there is a clear breach by the Court of Criminal Appeal of that provision and the proviso to that provision in particular, when it received evidence of the sentence of a co-offender, Mr Balich.  He was sentenced after the sentencing of this applicant.  We submit that certainly the applicant’s sentence was increased.  The Court of Criminal Appeal, we say, considered the Balich sentence in doing so.

DAWSON J:   But was it considering evidence there or that is just a matter of the record of the court, is it not?

MR ODGERS:   Well, our submission is that this provision should be seen as looking at matters of fact, preventing an Appeal Court from considering matters of fact as distinct from matters of law.

DAWSON J:   But what if the same sentencing judge sentences two people, one first and the other second, is he not able to take into account the sentence he imposed first?

MR ODGERS:   Well, your Honour, there will be evidence before him or her.

DAWSON J:   What is the evidence?

MR ODGERS:   In relation to the matter as well.  He will certainly know what the matter is that.....sentencing on.

DAWSON J:   Because it is a matter of record of the court.

MR ODGERS:   Your Honour, essentially the submission is that there is a danger in this type of case that an Appeal Court will apply parity principles and take into account evidence of what we say is a fact that a co-offender was sentenced to a considerably larger sentence and say, “Well, we think there is unequal treatment.  We think that even if the sentence imposed on the first offender was adequate, that the sentence - that equality, as in Lowe terms, would justify an increase”, and it is our submission that that danger would explain or be a justification for interpreting the provision in section 12 to prevent an Appeal Court doing just that.

TOOHEY J:   Except that it is usually the applicant who wishes to rely upon the conviction of a co-offender in order to demonstrate a lack of parity.

MR ODGERS:   Yes.

TOOHEY J:   Do you mean, that would go out the window?

MR ODGERS:   No, because that is precisely why the proviso to section 12 talks about increasing a sentence.  This Court in Lowe recognised that matters of equality may justify reducing an otherwise adequate sentence, which is not in error in law, by reason of the fact that there was either an earlier or a subsequent sentence of a co-offender where legitimate disparity appears.  We submit that that reasoning by statute cannot be applied to a Crown appeal and that the legislation - just as it prevents, for example, evidence of an aggravating fact, which is not available at the initial sentencing, this, putting it clearly, by any definition, prevents an Appeal Court saying, “Well there is this new evidence which shows that there was an aggravating element which the sentencing judge failed to take into account, we are going to increase the sentence”.  So we say that this provision prevents Lowe principles being applied in reverse and an Appeal Court saying, or running the risk of saying, two co-offenders apparently equally guilty; one got much more; he has not appealed, let us say, hypothetically; we should increase the first one; we have to take that into account.

TOOHEY J:   But it is not the admission of the evidence itself that the section strikes at, is it but, rather, the increase in sentence by reason of the evidence?

MR ODGERS:   Our submission is that once the evidence was admitted, once it was received, and once it was read and once it was referred to in the judgment ‑ ‑ ‑

DAWSON J:   Well how did the court apprise itself of the other sentence?

MR ODGERS:   I believe it received remarks on sentence, your Honour; evidence of what the sentencing judge in the Balich matter said, his remarks on sentence, which included a reference to the sentence that he imposed.  So we say that that falls within the  ‑ ‑ ‑

DAWSON J:   But that is part of a judgment of the court; that is not a matter of evidence.  I mean, you are not calling evidence when you read a judge’s reasons or the result.

MR ODGERS:  Well, in my submission - it is our submission really that the provision is unambiguous; that the only way to establish what happened at the Balich sentencing was to tender evidence of what the judge said in his remarks on sentence.  In our submission, it is clearly distinguishable from a situation where a sentencing court receives evidence of other judgments, other sentences, as part of its process of determining what the range is.  Clearly, in this case, it was interested in the particular fact and the particular facts that this was a co-offender; that is what made it important, that is what this court, in our submission, the Court of Criminal Appeal, was interested in.  They were not using it to get information about the range or the tariff or whatever; it was relevant because it showed that a co-offender, who on the face of it objectively seemed to be of similar criminality, received a considerably higher sentence and we say that that falls within the prohibition of section 12, and for a very good reason.  The legislature clearly intends that a person be not put at risk, that on a Crown appeal they are liable to be sentenced to a higher sentence because of some factual event which appears to create apparent injustice.

DAWSON J:   Well, my proposition to you is that it is not a factual event.  You say it is.

MR ODGERS:   Yes, that is the position, yes, your Honour.  Your Honours, if I turn to the other aspect of the application.  The Court of Criminal Appeal held that there was manifest inadequacies in the sentence and the relevant statement of the court in the judgment of Justice James is at page 15 of the application book, line 42.  He stated:

In my opinion, the objective facts of the offences, which I have already referred to and which were referred to by counsel for the Crown in her submissions, necessarily produce the conclusion that the sentences imposed by Judge Court, whatever special opportunities his Honour had for acquainting himself with the facts, were manifestly inadequate to reflect the objective gravity of the offences.

Now, we really have two submissions here, your Honours:  firstly, we submit that the decision and the order, which increased the total sentence from 20 months to 36 months, increased the minimum term from 15 months to 27 months, that that reveals, in our submission, a misunderstanding of the principles laid down by this Court in Griffiths and Everett and similar cases.  It is clear that, as Chief Justice Barwick stated in Griffiths, the jurisdiction to allow Crown appeals depends on a conclusion either of error of law or a grossly inadequate sentence, such that the inevitable conclusion is that there was some error of law.  Our submission is that given the sentence that was imposed by the Court of Criminal Appeal, they must not have applied that principle because ‑ ‑ ‑

DAWSON J:   They said they did.

MR ODGERS:   Well they said that it was manifestly inadequate.  Our submission is that ‑ ‑ ‑

DAWSON J:   It was not.

MR ODGERS:   Our submissions is that it is not clear what they meant by the words “manifest inadequacy” and we say that when you look at what they did, they could not have understood it in the proper sense, which is, what we say, gross inadequacy.

DAWSON J:   There is a manifest misunderstanding of “manifest inadequacy”, is what you are saying.

MR ODGERS:   Yes, your Honour, that is how we put it.

TOOHEY J:   Your client is eligible for parole as from next month, is he?

MR ODGERS:   In December, yes, your Honour.  Your Honour, the other aspect of our submission that we put, that the Court of Criminal Appeal erred in its application of proper principle, is that it appears from what his Honour Justice James said at the bottom of page 15, that the objective facts necessarily produce the conclusion that there was manifest inadequacy.  We say that that demonstrates a staged approach, looking at the objective facts, putting to one side the subjective elements, which we say were very significant in this case.  I mean, this was a man who was 40 years old, had never been convicted of any offence, he pleaded guilty, he provided assistance to the authorities ‑ ‑ ‑

DAWSON J:   But it was a pretty horrifying crime, was it not?

MR ODGERS:   Your Honour, there is no gainsaying that but, nonetheless, the sentencing judge at first instance, a very experienced judge, well aware of all the ins and outs, made a judgment that, taking into account both objective and subjective elements, that that sentence that he imposed was appropriate.  Now, yes, there is an exceptional jurisdiction for the Court of Criminal Appeal to interfere but it must do so on proper principles, and we say that the Court of Criminal Appeal fell into error, firstly, because it did not in fact see gross inadequacy, that is the first point; secondly, that it fell into error because it focused exclusively, it appears, on the objective elements as distinct from the totality of those matters which should be taken into account on sentence, and that that staged approach led them to the conclusion, looking at the objective circumstances that there must be manifest inadequacy - they would say, “OK, we will allow the appeal” and then they proceed to impose a sentence which, in my submission, reflects the reality that what they have done is they have then looked at the subjective matters, they have thought, “Yes, there is a lot of reason here for taking a much more lenient view” and they have produced a sentence which in fact, in my submission, demonstrates that all along there was no gross inadequacy.  Those are the submissions.

DAWSON J:   We need not trouble you, Mr Solicitor. 

The Court is of the view that there is no sufficient reason to doubt the correctness of the decision below and special leave to appeal is accordingly refused.

AT 12.18 PM THE MATTER WAS CONCLUDED