Kostikidis v The Queen

[1996] HCATrans 397

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M67 of 1996

B e t w e e n -

STAN KOSTIKIDIS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M68 of 1996

B e t w e e n -

PETER MPEHELEVANAS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 1996, AT 12.37 PM

Copyright in the High Court of Australia

_________________________

MR B.D. BONGIORNO, QC:   If the Court pleases, I appear with my learned friend, MR N. PANE, for both applicants.  (instructed by Vadarlis Tasiopoulos & Co)

MR J.D. McARDLE:   May it please the Court, I appear with MS C.M. QUIN, on behalf of the respondent in both of these matters.  (instructed by Mr P. Wood, Solicitor for Public Prosecutions)

GAUDRON J:   Yes, Mr Bongiorno.

MR BONGIORNO:   If the Court pleases, I must commence by seeking the Court’s leave to file over a summary of argument which was delivered to the Court yesterday and given to my learned friend yesterday.  The reason for the application is that the original argument which had been filed did not comply with Order 69A.  The argument it is now sought to advance does not change in essence the argument that was originally foreshadowed.  Indeed, it in one respect shortens it because one of the bases upon which special leave was being sought has now been abandoned.

GAUDRON J:   Yes, thank you.

MR BONGIORNO:   I seek that leave from the Court under Order 69A rule 8(5).

GAUDRON J:   Yes, you will have that leave, Mr Bongiorno.

MR BONGIORNO:   If the Court pleases.  This matter arises out of a sentence imposed in the County Court, reviewed in the Court of Appeal and a sentence of a suspended sentence being substituted with a sentence of immediate imprisonment.

The circumstances in which it occurred were that the accused prisoners had been convicted after a trial on two counts of obtaining financial advantage by deception; had pleaded guilty to two counts of the same offence, and after a plea at which, of course, both the accused and the Crown were represented, the trial judge sentenced them to a suspended gaol sentence, or gaoled them and suspended the sentence, I think is the appropriate description here in Victoria.

The Director of Public Prosecutions appealed under the Crown appeal provisions in the Crimes Act and the matter came before the Court of Appeal as a Crown appeal.  The Court of Appeal, by unanimous judgment, held that the sentence imposed by the trial judge was manifestly inadequate and substituted a sentence of immediate imprisonment; in fact, one of 18 months with a minimum of nine.

GAUDRON J:   It is not suggested that that sentence is outside the range?

MR BONGIORNO:   It is not, your Honour.

GAUDRON J:   And it follows almost automatically from that, does it not, that the suspended sentences were manifestly inadequate.

MR BONGIORNO:   With respect, no, your Honour.  The proposition that in respect of counts of obtaining a financial advantage by deception that there must be a gaol sentence, is not a proposition that either the Court of Appeal in Victoria has accepted; it all depends in the individual circumstances.  Some cases, of course, call for a suspended sentence, some ‑ ‑ ‑

GAUDRON J:   This was fairly serious financial fraud, was it not?

MR BONGIORNO:   Yes, it was.  I cannot suggest that it was not.  There have, however, been more serious cases of financial fraud dealt with by suspended sentences in the Court of Appeal itself.  Moffitt was a case in point where the amount was, I think, almost twice what was being dealt with here, and the circumstances were a depredation by a stockbroker upon a trust account owned by a deceased estate.  So that was, in many senses, a more heinous crime than this.  The Court of Appeal, or the Full Court, as it was then, the Court of Criminal Appeal, refused to lay down any principle that there ought always be a mandatory gaol sentence, an immediate sentence of imprisonment in such a case. 

So that to answer your Honour’s question, we would submit that both the suspended sentence and the sentence of imprisonment were within the range.  We could not argue about either, and if the trial judge had imposed the sentence that the Court of Appeal ultimately imposed, we would have been, of course, unable to come to this Court, simply on the basis that it was manifestly excessive in any event.

What we say has occurred here is that this raises the question of where the principle in Everett’s Case, which is the principle that the Crown cannot, where there has been an indication by a trial judge that he intends to impose a non‑custodial sentence, approach a Court of Appeal successfully, in any event, to have an immediate gaol sentence imposed, whether that applies ‑ ‑ ‑

GAUDRON J:   That is not a point you took in the Court of Appeal, is it?

MR BONGIORNO:   It was not, your Honour, no.

GAUDRON J:   And it is a principle which permits of exceptions.

MR BONGIORNO:   It permits of exceptions but, in our submission, the fact that it was not adverted to by the Court of Appeal judgment by Mr Justice Charles, at all - and we make this point in our outline - he did not advert to the proposition that, in fact, the Crown had said nothing below.  He apparently was not urged to, but it is patently obvious, in our submission, from the material that was before the Court of Appeal and from the application book, that that was, in fact, the case.  The Crown Prosecutor addressed the court for some, I think, 10 or 12 pages of transcript and in the course of that made no submission at all.  We submit, as far as a fair inference from what had occurred to that point, that the court was going to impose a non‑custodial sentence.  Indeed, even what occurred after that point, that the court was going to impose a non‑custodial sentence.

In Everett this Court said that if the court makes it clear that a non‑custodial sentence is to be imposed, it is the duty of the Crown to say something.  We say that this case raises a special leave point in one of two ways ‑ ‑ ‑

GAUDRON J:   Everett permits of exceptions, does it not?

MR BONGIORNO:   It does, your Honour.

GAUDRON J:   There are two things that may be said about what you have just said:  firstly, there may be circumstances where, if the sentencing judge has made it clear that a suspended sentence is to be imposed before the Crown Prosecutor has addressed, in which it is simply pointless to raise the issue other than formally, at least, and the other matter is that Everett, itself, does allow that there may be exceptions.

MR BONGIORNO:   Yes, they do, your Honour.  We would simply say that the fact that this was not raised in the Court of Appeal - and in the forensic sense the applicants here must bear the responsibility for that, and I say in the “forensic sense” because that it all, not the actual sense - the Court of Appeal never came to consider the question of whether this was a case which fell outside Everett or not.

GAUDRON J:   I hesitate to interrupt you again, Mr Bongiorno, but the Court must adjourn at this point and resume at 2.15.  I hope it has not interfered with the flow of your argument.  We may make some allowance for that afterwards.  Thank you.

MR BONGIORNO:   Thank you, your Honour.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAUDRON J:   Mr Bongiorno, the times have been adjusted a little in your favour to accommodate the interruption.

MR BONGIORNO:   I am indebted to the Court.  Your Honour, before lunch, put the proposition to me that Everett’s Case was, of course, subject to exceptions, and there is no doubt about that.  What we say is that in this instance there was no exception identified in the Court of Appeal which would take this case out of the ordinary if ever it applied to it in the lower court.  Our application for special leave is really two‑pronged in this sense:  we say either Everett did apply, and the principle in Everett is sufficiently wide to cover a situation where the trial judge not only makes clear his intention but it is a fair inference from the way the case has run that it is his intention, and we say Everett is either sufficiently wide to cover that situation or it is not.  If it is not, we say that a matter of general public importance arises out of the proposition how wide and how far does the obligation of the Crown go in apprising the trial judge of the Crown’s attitude.  What has happened here is something, in our submission, which is common in sentencing courts.  It is not a rare event.  Counsel for the accused has opened his submissions by saying - from the top of page 5 of the application book:

at the outset the submission that I’m going to make at the conclusion of the plea is that whilst in these circumstances a custodial penalty is appropriate, that this is the type of case where it is within Your Honour’s discretion to wholly suspend that period which Your Honour imposes.

So there is no question that right at the outset of the plea, the accused’s counsel, the prisoner’s counsel, is making an application for a non‑custodial sentence.  We then go to what the prosecutor says, and that commences - it is a discrete address, it is not just in the course of discussion with the court - at page 36 of the application book.  Indeed, the fact that it is a discrete address is made clear at line 22 where his Honour says:

I will just have a five minute break, I think, before I hear Mr Tinney.

Mr Tinney commences at line 26, and he goes from there, I think, from page 36 to page 44, line 8, and at no point during that time does he grapple with the application by the accused’s counsel for a non‑custodial sentence.  Nor does he grapple with, in our submission, the clear indication from the trial judge, from the sentencing judge, over the course of counsel for the prisoner’s submission that he is not indisposed to grant the application which is being made.

GAUDRON J:   Did the sentencing judge say that in terms?

MR BONGIORNO:   He did not say it in terms, your Honour.  Indeed, in terms, he said, when he adjourned the court cur ad vult, releasing the prisoners on bail, at page 48, line 17  ‑ ‑ ‑

GAUDRON J:   That is after the prosecutor ‑ ‑ ‑

MR BONGIORNO:   After the prosecutor has finished:

I will sentence the prisoners at 10 a.m. next Tuesday, they can remain on bail until then.  The fact that I am allowing them to remain on bail should not be taken as an indication that I have in mind any particular penalty, they should not assume that I will not impose a custodial sentence, but because I’m uncertain of what I will do I will allow them to remain on bail until next Tuesday.

We say that that, in itself, is an indication that the trial judge is considering what the Crown later submitted in the Court of Appeal was appealable error.  He is warning the accused but, in our submission, he is also warning the Crown.  If Everett’s Case is to be observed in the spirit of the way in which the decision should be interpreted, at that point the prosecutor had a clear duty to say to the court, “Well, if your Honour is considering a non‑custodial sentence, we would like to make submissions as to the inappropriateness and appealability of that sentence if your Honour imposes it”, and it was not done.

GAUDRON J:   All that may be right, but what you have against you is the holding in the Court of Appeal that the sentence imposed - and I am reading from page 76 - was:

manifestly inadequate and that it revealed such inadequacy or inconsistency in sentencing standards as to constitute error in principle.

In the face of that, why is it not a matter that constitutes exceptional circumstances for the purposes of the Everett principle, particularly in circumstances where you have not relied on Everett in the Court of Appeal?

MR BONGIORNO:   Your Honour, if the justice who gave that judgment in the Court of Appeal had adverted to the proposition that the Crown had not raised this in the court below, and that the reason for not raising it was that the prosecutor was misled, or the prosecutor thought this, or ‑ ‑ ‑

GAUDRON J:   Yes, but you did not.  Counsel for the applicants did not raise it.

MR BONGIORNO:   And we must, of course, concede that.  We say about that, that this Court ought not permit a procedural injustice, which we say has occurred here, to be perpetrated merely because counsel in a particular court - whether the sentencing court or the Court of Appeal - did not do that which appears on the papers to have been a matter of ‑ ‑ ‑

GAUDRON J:   I do not see your clients as having had a procedural injustice.  It seems to me they have a distinct procedural advantage.

MR BONGIORNO:   Your Honour, there is nothing - and I suspect the Crown will not be able to suggest anything - which suggests that my predecessor did not put this proposition to the Court of Appeal for some tactical advantage or forensic advantage that he perceived.  There can be none.  In our submission, when one looks at the trial court’s transcript, which the Court of Appeal must have done, it ought to have been, in our submission, quite obvious to the Court of Appeal as well as to counsel - and I do not seek to excuse what has occurred, but it ought to have been obvious to everyone that the Crown had not raised this in the court below and, in our submission, it was incumbent upon the Court of Appeal, if counsel did not raise it, to at least raise with the Crown “Why was not this raised below?”, in much the same way, with respect, as your Honour is raising it with me now.  The situation is not, in our submission, materially different.

McHUGH J:   Mr Bongiorno, what is the rationale of the doctrine that the Crown should not be permitted to depart from a course of action that may have induced the trial judge to impose a sentence that he should not have imposed?

MR BONGIORNO:   The rationale might be expressed in this way, your Honour:  in the case of Reg v Tait and Bartley, his Honour the Chief Justice and Justices Gallop and ‑ ‑ ‑

GAUDRON J:   Justice Deane.

MR BONGIORNO:   Justice Deane, yes, dealt with this in a passage which appears at page 476.  Your Honours should have in the material that case - At the bottom of page 476 - and we would respectfully adopt their Honours judgment as our argument here - the last paragraph on page 476:

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error.

McHUGH J:   That rather states a conclusion rather than a reason for this doctrine.  Why is it unjust?

MR BONGIORNO:   It is unjust because if the Crown had raised in the court of first instance that this would constitute appealable error, counsel for the accused could have dealt with it.  He might not have dealt with it effectively, but he could have at least dealt with it.  As it was, he was lulled into a sense, and his clients, of course, were lulled into a sense of believing that the Crown did not consider that which was going on to be in any way untoward.  That is the rationale, with respect, and indeed that is what their Honours are saying there.

GAUDRON J:   Yes, but they say it in more precise terms: “contributed to the error or led the defendant to refrain from dealing” with it.  There was no concession that a non‑custodial sentence was appropriate, and there was a challenge to the matters that you relied upon.  There was a challenge as to remorse; there was a challenge as to the nature of the offences, and there was a suggestion that deterrence ought to play a significant role in the sentence imposed.

MR BONGIORNO:   All of which, in our submission, could have gone to the length of the sentence imposed, in terms of the suspended sentence, or in terms of the community‑based order that was imposed also.  All of that, in our submission, is matter of degree not matter of principle, in our submission.  The Crown, here, ought to have said to the trial judge, “If you impose a sentence which is not immediately custodial, that will amount to appealable error”, because that is what they said when they went to the Court of Appeal.  In our submission, therein lies the error of principle. 

The fact that it was not raised by the appellants in the Court of Appeal, we say that is a forensic responsibility which they must take but it is no more than that.  If ultimately the justice of the situation requires that that be remedied in this Court, then in our submission special leave should follow under the criterion in 35A(b), the justice of this particular case.

Alternatively, as we put our argument, this Court ought to examine whether the principle in Everett, in the way in which it is expressed in the joint judgment now, really expresses the law at all, or expresses it widely enough, and whether this Court ought not to deal with the question of a prosecutor’s responsibility where the trial judge says nothing because that is the more usual case where the trial judge is not giving any indication as to what he is going to do but simply allows the plea to proceed and allows the accused to seek a non‑custodial sentence with the Crown saying absolutely nothing.

McHUGH J:   There is a passage in the judgment of Chief Justice King in Wilton which the Court cited in Everett at page 302 which is very much in your favour. If you look at page 302 of Everett and the quote of the Chief Justice of South Australia which is set out, that last sentence, in particular, “where a submission” ‑ ‑ ‑

MR BONGIORNO:

Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney‑General.”

McHUGH J:   It is the previous sentence I had in mind:

In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made.

MR BONGIORNO:   Yes, that is our case.  We say that the fact that we did not do it, that the ‑ ‑ ‑

GAUDRON J:   But the next sentence does allow that there may be exceptions.  “Generally speaking” indicates that there will be cases that fall outside that rule.

MR BONGIORNO:   We could not argue to the contrary, your Honour, but we would say this, that where those exceptions exist, it is incumbent upon the Court of Appeal to identify the exceptional circumstance, and that has not happened here.  The fact that the prisoners may have contributed to that forensically, and I emphasise “forensically”, because they, of course, did not argue the appeal themselves - - -

GAUDRON J:   But does the court not identify those circumstances as the rather unusual way in which the sentencing judge dealt with it on the basis that Esanda was guilty of contributory negligence?  That is hardly a proper consideration.

MR BONGIORNO:   His Honour, the judge who wrote the leading judgment, the judgment which was concurred in by the other judges, does not express any reservation about that proposition.  At the bottom of page 76, he says:

In the present case, the learned judge appears to have treated Esanda as contributorily negligent by virtue of what his Honour called “its extraordinarily relaxed lending policy” in relation to the

loss resulting from these offences.  I do not doubt that this was a matter which his Honour was entitled to take into consideration -

so, Mr Justice Charles is not saying that was an inappropriate matter to be taken into consideration, and certainly not identifying it is some exceptional circumstance which relieved the Crown of what we say was the clear obligation to avoid his Honour falling into what it said was appealable error.  I see, your Honour, that my time has expired.  If I might simply conclude by saying that either Everett is wide enough to cover this proposition, and there has been a failure in the Court of Appeal to apply it properly, or alternatively, it is not wide enough to cover this proposition and this Court ought to consider the boundaries of Everett and see whether, in fact, it really expresses the law in its proper form.  In either case, in our submission, there is a special leave point, one or the other, or both, perhaps, in the alternative, and special leave ought to be granted to appeal in this case.  If the Court pleases.

GAUDRON J:   Yes, we need not trouble you, Mr McArdle.

Given the nature and circumstances of the offences for which the appellants were convicted, the Court is of the view it was appropriate for the Court of Appeal to intervene, notwithstanding the failure of the prosecutor to address the sentencing judge on the question whether it was appropriate for him to impose suspended sentences:  see Everett v The Queen (1994) 181 CLR 295 at 302 and 303. Moreover, the point which the applicants now raise was not taken in the Court of Appeal. Accordingly, special leave is refused in both matters.

MR BONGIORNO:   If the Court pleases.

AT 2.31 PM THE MATTER WAS CONCLUDED