Kostikidis v The Queen
[1996] HCATrans 323
TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone (03) 9672 5608
Fax (03) 9670 8883
O/N 4912
A 30.10.96
A 31.10.96
IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY
M67 of 1996
BETWEEN:KOSTIKIDIS
Applicant
- and -
THE QUEEN
Respondent
M68 of 1996
BETWEEN:MPEHELEVANAS
Applicant
- and -
THE QUEEN
Respondent
DAWSON J
AT MELBOURNE, THURSDAY, THE 24TH DAY OF OCTOBER 1996 AT 3.00 PM
MR R. RICHTER QC: If your Honour pleases, I appear with my learned friend, MR G.D. KEIL, for the applicants. (Instructed by Vadarlis Tasiopoulos and Co).
HIS HONOUR: Yes, Mr Richter.
MR J.D. McARDLE: If your Honour pleases, I appear for the respondent in both matters. (Instructed by Director of Public Prosecutions, Victoria).
HIS HONOUR: Yes, Mr McArdle. Are both matters to be heard together?
MR RICHTER: Yes, your Honour.
HIS HONOUR: So there no difference ‑ ‑ ‑
MR RICHTER: There is no difference in principle or in practice.
HIS HONOUR: ‑ ‑ ‑ relevant difference?
HIS HONOUR: Yes, Mr Richter.
MR RICHTER: If your Honour pleases, this is an application for bail pending the making of an application for special leave to appeal to the High Court on a question of sentence. The special leave application and statement in support were filed on 2 October of 1996. There are two affidavits in support. The matter has been through a number of hands and that was only recently put together to the extent that the first affidavit in support of the application, which exhibited a number of vital documents, omitted to exhibit the judgment of the Court of Appeal.
HIS HONOUR: Well, I have read that.
MR RICHTER: That has now been rectified by way of the second one. The next matter is this: that this, as we say, is an application for bail pending a special leave application and it raises necessarily peculiar and special problems as this Court has had to deal with in the past. We would submit and would accept as a proposition that bail will only be granted pending the hearing and determination of an application - I take it your Honour has our outline of submissions? -
HIS HONOUR: Yes, I have.
MR RICHTER: - in exceptional circumstances, there is no question about that.
HIS HONOUR: It is more than that, really, is not it, Mr Richter? It really is a question of whether the application or, if the application is successful, appeal will be futile in the absence of making a ‑ ‑ ‑
MR RICHTER: That is right. What we raise - and I suppose it is a special leave issue - is the question of whether futility - well, it is not so much a special leave issue, it is a question that is raised for this application as to whether futility is an absolute concept. In other words, is it all or nothing? Do you need to demonstrate that it will be totally futile - in other words you will have served your whole sentence prior to the determination of the matter or serve some portion of it and we would submit that there are ‑ ‑ ‑
HIS HONOUR: Well, it is a question of whether effectively this Court's jurisdiction is nullified.
MR RICHTER: That is right, your Honour, with respect, except for this: the Court has had to deal with cases where it is said that the jurisdiction is of course exception and is an inherent jurisdiction in order to protect the Court's processes from ultimate futility.
HIS HONOUR: Yes.
MR RICHTER: But nowhere does it define what ultimate futility means. Ultimate futility could mean that someone loses four months of their life for nothing, or it could mean that they lose the whole of the sentence for nothing, and that is not ‑ ‑ ‑
HIS HONOUR: Well it means that the order would be ineffective, I think.
MR RICHTER: That is right. But it does not necessarily mean that it would be totally ineffective. It would be effective for some purposes, even if in some instances it would be only to clear the name of someone. So that we make as part of our submission that the issue of futility is a relative one and is a matter for assessment in a particular case.
HIS HONOUR: But the point is that one does not focus upon a particular position of the applicant, the advantages or disadvantages to him. One focuses on the position of the Court as the basis of the jurisdiction.
MR RICHTER: Indeed, with respect. And the basis of that jurisdiction is not vitiated by an absolute rule that there has to be absolute futility demonstrated before the inherent jurisdiction comes into play. And that is a primary submission that we have to get over because in this instance we do not know whether or not there would be absolute futility. We are informed that a special leave application may get on, I think it is on 13 December, we do not know whether it will or not.
HIS HONOUR: Well now your clients have some 8 months to serve ‑ ‑ ‑
MR RICHTER: A minimum of 9 months was fixed ‑ ‑ ‑
HIS HONOUR: As non-parole - a non-parole period.
MR RICHTER: That is right, your Honour.
HIS HONOUR: And about 8 months of that are yet to go; is that right?
MR RICHTER: Yes. The Court of Appeal imposed its sentence on 13 September.
HIS HONOUR: Well, as I understand it, there is every likelihood that the application for special leave could be heard in that time, that is certain because there is a date in December.
MR RICHTER: That gives us some comfort.
HIS HONOUR: And any appeal could also be heard within that period.
MR RICHTER: Yes, your Honour.
HIS HONOUR: So that is the factual situation.
MR RICHTER: The factual situation gives us some comfort. It still leaves us with the situation where we would say that the time between September and 13 December, assuming special leave is granted, and assuming ultimately the appeal succeeds, of course, will have been served for nothing.
HIS HONOUR: And of course if special leave were granted you could renew your application in the meantime.
MR RICHTER: We could do that, your Honour. What we would say is this, that in this particular application it should be regarded differently from the normal sort of applications that are brought. We make a distinction which in fact we would seek to be making as part of our reasons for special leave to be granted, that there is to be a different - and there ought to be a different - approach in consideration of a Director's appeal in a case where, for example, someone is serving a sentence the director appeals to increase the severity of that sentence, certainly principles of double jeopardy apply in the way that this Court has from time to time referred to them, but a fortiori they apply a great deal more and need to be given greater weight in a situation where someone is not serving a term of ‑ ‑ ‑
HIS HONOUR: It amounts to this: you have never had an opportunity to appeal against a custodial sentence which is imposed upon you now.
MR RICHTER: That is right. And so it ought to be looked at differently, in our respectful submission. We are not here in the way in Chamberlain, for example, Chamberlain No 1 that is referred to, where one says: we are challenging the sanctity of the jury's delivered decision. And, indeed, of a subsequent intermediate appellate Court, dismissing the appeal. There are separate considerations that apply to those sorts of cases. In this case we are in fact saying: we would like to uphold the primary Judge. He gave us our liberty. We have had our liberty. We were plucked off the street by the Court of Appeal. And so that creates additional problems of angst that the Courts are tender to - not overly tender, but ‑ ‑ ‑
HIS HONOUR: Well that is where we get into the effect of the circumstances upon the applicants which I have been suggesting to you is not of great concern to the jurisdiction of the Court.
MR RICHTER: But it is of some marginal concern, but it is of concern, we would say, in a situation where prior to the hearing of the special leave application itself it can be demonstrated that there is a good arguable case, not only that special leave will be granted, but that the appeal will succeed. And we appreciate that we get nowhere unless your Honour considers that this is a case in which there is a pretty reasonable prospect of getting special leave to appeal, and thereupon a reasonable prospect of winning the appeal.
Now if that was the view of the Court then provisionally the Court could fix bail, and it is an inherent jurisdiction to prevent the futility of the 4 months, or 3 months that will have been spent in jail when the primary Judge thought that there ought not to be any. And it is on that basis that the application is brought. Could I ‑ ‑ ‑
HIS HONOUR: If I may just put this to you. It does seem that until Chamberlain's case, that is the decision of Brennan J in Chamberlain's case where there is an application for bail, it was very unclear as to where the jurisdiction of the Court originated. It now is no longer unclear; it is quite clear that it is Tait's case, in effect.
MR RICHTER: Yes. It is quite clear that it is an inherent jurisdiction and an inherent jurisdiction to protect the Court's processes against producing the futility.
HIS HONOUR: To preserve the subject matter of the ‑ ‑ ‑
MR RICHTER: Yes. Now the subject matter in this is, as we say, not black and white. There is a sort of divisibility about the subject matter. A portion of the 9 months, the 4 months or so, will be rendered completely futile. So that is why we say - and it is an important issue for the determination of this very application too, because there ought to be some delineation of the sort of cases on the one hand where one says: well, there is no real problem in waiting, you wait, there may be some serious consequences for you in terms of your state of mind about whether you think you are going to be serving 5 years of 10 years, or in terms of whether you may become eligible for parole by the time the decision is finally rendered, but with eligibility for parole, of course, as we know it is still at the discretion of the Parole Board. You may not be released at the expiration of the minimum anyway. A clear principle ought to be set forth, in our respectful submission, that ‑ ‑ ‑
HIS HONOUR: In that respect Gaudron J seems to have taken a view in Robinson's case, was it?
MR RICHTER: Yes.
HIS HONOUR: That no distinction is to be drawn between parole periods and the non-parole periods. That even if ‑ ‑ ‑
MR RICHTER: Robinson's case was a bit different though ‑ ‑ ‑
HIS HONOUR: Yes.
MR RICHTER: That is why ‑ ‑ ‑
HIS HONOUR: And then in Chew's case you seem to have a slightly different approach on the part of Toohey J and Chew's cases, part Toohey J and McHugh J.
MR RICHTER: Indeed, your Honour. But on an analysis of those sorts of cases where discretion has been exercised differently from time to time, one can actually find the rationale that flows through them, and it is not one that applies to this case in the sense that in this case, as I say, we are appealing in order to reinstate a primary Judge who was the Judge who heard the evidence and was best placed to assess the evidence and to assess the sentencing considerations at that level. And so it is a very, very different concept from the ones involved in the other cases, including cases where the question arises about whether or not the minimum will expire, or the sentence might expire by the time the matter is determined.
[3.15pm]
But having said that, and having submitted that the case ought to be considered differently, we would at once embrace the threshold question of whether or not a reasonable arguable case is shown to exist in this case, this case being of the second category, namely where a person who is at liberty wants to reinstate the primary Judge's sentence. We would say that in our respectful submission there are not only arguable grounds that the appeal will ultimately succeed and that certainly ‑ ‑ ‑
HIS HONOUR: Now you will elaborate that, will you not?
MR RICHTER: Yes. I want to get to that because that is really at the heart of it. If I cannot persuade your Honour that there are reasonable arguable grounds then I am nowhere, and I concede it immediately. So far as those matters are concerned, as I have indicated, the brief had been through quite a number of hands before I got to it. The grounds of appeal that are set out and the statements in support do not spell out as clearly as one might the sort of considerations that we say do in fact give rise to special leave issues.
What I have sought to do, your Honour, is in paragraph 5 of my outline of submissions I have sought to highlight the matters that we say arise from this case, or in this case, rather, that are worthy as being considered as of having special and general application to sentencing laws, certainly in Victoria and possibly in other states where there is no question of leave to appeal. And we are dealing in Victoria with a situation where the question of leave to appeal does not arise, so that on the face of it the sort of rulings in Everett and Malvaso have a different spin, but the principle, the foundational principle of the Court's reluctance to interfere on the various principles, including double jeopardy and so on, still prevail even in Victoria, and it is conceded that even in Victoria, where a Court of Appeal is able to refuse to intervene, where the sort of considerations of double jeopardy ‑ ‑ ‑
HIS HONOUR: But the Court of Appeal referred to both of these considerations, the Everett and Malvaso consideration and double jeopardy.
MR RICHTER: It did. But what it did ‑ ‑ ‑
HIS HONOUR: Was it in error in what it said?
MR RICHTER: Well, yes. Well there is an error in what it did not say. The problem was that it ought to have adverted to those considerations as part of its decision whether or not to re-sentence; whether or not to overturn. It did not; it referred to those considerations in its recalculation of the sentence. In other words, having decided ‑ ‑ ‑
HIS HONOUR: No, that was only double jeopardy. But not Everett and Malvaso. It referred to those separately, did it not, on page 9 of the judgment?
MR RICHTER: Yes, your Honour. Having decided to overturn, in our respectful submission, they deal with the sort of Malvaso propositions and the double jeopardy principle in the middle of the page. But what they say is this:
Principles applicable to appeals by the Director of Public Prosecutions are well established and were collected and restated in a recent decision of this Court in Clark -
and then the unreported decision of O'Rourke:
A prisoner whose freedom has already been removed by the considered decision of a sentencing Judge should not readily have that ...(reads)... to the seriousness as to shock the public conscience.
And his Honour the Justice of Appeal, Charles, of course, states that principle. It emerges out of cases where that principle bears the immediate application on the issue of whether or not to grant leave to appeal in the first place. And it does not really tell us where and how it fits into a scheme of things where the appeal is as of right. It does not do that, and it gives no real exploration of the sort of impact that it might have in this sort of case, or what it might require to consider.
The cases with which it deals, deals with a proposition or a situation of someone who has already been sentenced to a term of imprisonment by a primary Judge, but where the application applies, or rather invokes, a DPP appeal to try and increase that sentence. And that is why ‑ ‑ ‑
HIS HONOUR: But that was taken to account. They cite O'Rourke's case and say that a Court should not readily take away a man's freedom, and should not put him in jeopardy for a second time beyond the sentence already imposed.
MR RICHTER: That is the point that I am making, your Honour, and the point - if I have not made it clear I will seek to make it clearly - the point that I am making, going back to the first distinction that I drew between cases where someone is not serving because of the primary Judge, but is plucked off the streets as a result of the Court of Appeal's decision to re-sentence, as against a situation of someone who is sentencing but is put in double jeopardy with respect to the time beyond the sentence already imposed.
HIS HONOUR: But clearly in making reference to that case what they were saying was: well, look, we should not lightly impose a custodial sentence on these men because they have been free, pursuant to the non-custodial sentence imposed by the trial Judge.
MR RICHTER: That is, with respect, what they are not saying, and that is, with respect, where the special leave interest arises. What they are saying is: they have had their freedom put in jeopardy, and they should not have it put in jeopardy for a second time beyond the sentence already imposed. In the context in which this is uttered this applies to cases where there is already a custodial sentence imposed. And what we say is that separate principles apply. They are principles of double jeopardy, but they apply a fortiori with far greater force, and ought to be given far greater force in a situation where someone has been at large, has already served a goodly portion of their sentence, because these people have already served a goodly portion of their sentence whilst at liberty, and yet are pulled back in order to serve a fully custodial sentence.
So that is really the first point of special interest that arises, and we say in our submission that that is an important one and has not been addressed in terms of analysis by the Courts, in terms of apportioning the sort of differential that one applies. Now, the second matter which we say arises significantly as a special leave issue is the following, and it is referred to in paragraph 5(a) of our outline of submissions. There are certainly pronouncements in this Court, as indeed in Courts of Appeal, about prosecutors duties not to allow a Judge to fall into a situation of appellable error.
The cases that have been cited, Everett, Malvaso and a number of the other cases, in particular for example in New South Wales the case of Jermyn, which is quite an extraordinary case because I do not know if your Honour is familiar with it, but I have a spare copy of that for your Honour. It is in the New South Wales Court of Criminal Appeal. It is a situation where the Chief Justice, Street J, as well as McHugh J, as he then was, expressed very strong views about what an outrageously lenient sentence it was, and effectively paraphrased - they found it hard to understand how the Judge could have imposed it, but nevertheless refused the appeal on the basis that when the Crown Prosecutor was asked about a bond, he did not oppose it. He said it was a possibility.
So that principle, of course, goes a long way. What we do not have is a determination in principle about the distinction between active and passive leading of a Judge into error. And the reason it arises in this case, and it arises pretty squarely, is this: that when the plea was made it was open. The first thing that was said by counsel on behalf of the applicants, was - and he did not mince words about it - he put it to the Judge at page 32 of the plea ‑ ‑ ‑
HIS HONOUR: I do not have that, do I?
MR RICHTER: Your Honour should have it. It is exhibited to the affidavit.
HIS HONOUR: Yes, I do.
MR RICHTER: It is in fact exhibit B to the affidavit.
HIS HONOUR: Yes, I have it.
MR RICHTER: At page 32 Mr Dean - sorry, even earlier than that. Right at the outset Mr Dean says that he will be asking for a suspended sentence. And this is before he calls the witnesses. At page 1 of the plea, the very first paragraph of Mr Dean:
Your Honour, at the outset the submission that I am going to make at the conclusion of the plea is that whilst in these circumstances ...(reads)... to wholly suspend that period which your Honour imposes.
And he repeats that at page 32. Now, the learned Crown Prosecutor, when he makes submissions as to penalty, and they really start at page 37 where he deals with some factual matters, but the crux of what he is saying is summed up at page 39 where he talks about these counts exhibiting a high degree of deceit and a high degree of honesty. Well they were counts of dishonesty, after all. But nowhere does he say - at page 40 he says:
Your Honour, in my submission, specific deterrents and general deterrents should loom large in your Honour's considerations.
Well they probably did because his Honour found, as a matter of fact, that specific deterrents was really not necessary in this instance because the two applicants, the offences were very old and there was very persuasive evidence of their rehabilitation and change in lifestyle. The offences went back to 1989 and 1990. And his Honour had before him a witness, a former police - or a Police Superintendent - who had known the two for 12 years or so, and had given persuasive evidence, certainly evidence that the trial Judge accepted, that amounted to saying that specific deterrents in this instance was not warranted really.
And so far as general deterrence is concerned, well of course a suspended sentence is a generally deterrent sentence as well. People forget that the Sentencing Act tells us that a suspended sentence is a sentence for all purposes; a sentence of imprisonment for all relevant purposes. And that is specified in section 27 of the Sentencing Act. So to that extent it is important not to diminish from the notion that even a suspended sentence, seeing that there is a requirement to formulate a view that imprisonment is appropriate, a suspended sentence is in fact a generally deterrent sentence, and to some people a far greater deterrent than to others, especially people who have pulled their lives together and who may be fearful of the falling of the sentence altogether.
But the point that we are seeking to make is this: that at no stage did the learned Crown Prosecutor say to the Judge in the course of what was quite a lengthy plea, a suspended sentence that is asked for by the applicants would, in the view of the Director of Public Prosecution, or might, constitute appellable error. So that there is a distinction to be drawn in the cases between cases of active leading a Judge into error, as by saying: yes, it would be appropriate to release him on a bond; or, as against a passive leading into error, which it would be asserted in this case, of simply not telling the Judge ‑ ‑ ‑
HIS HONOUR: Was this point made before the Court of Appeal?
MR RICHTER: Your Honour, the point was argued before the Court of Appeal - I do not think it was taken as a ground 9. As I understand it, the matter was raised, but it was not taken as a ground. So it is one of those situations in which we come here on something that has not - on that issue ‑ ‑ ‑
HIS HONOUR: That rather weakens your position, does it not?
MR RICHTER: It weakens the position, but it is still in the confluence of all the factors that we say militate towards the grant of special leave in this case; is something that we would not be shut out from arguing if special leave was granted. And, in this instance, it is an important special leave issue, in our respectful submission. The next matter that we say would constitute a special leave issue, and something that the Court has always considered as a special leave issue, is the question of injustice, miscarriage of justice.
We cannot raise that other than by saying that in this instance there was a miscarriage of justice. But that will depend on the full argument, if necessary. But there are identifiable issues such as the ones that I have been seeking to identify that are clearly special leave matters, in our submission.
[3.30pm]
The next one that we say is clearly a special leave matter relates to the matters set out in paragraph 5(c) of our outline of submissions and it is this, that in our respectful submission what the Court of Appeal did was effectively to act contrary to the policy declared by the Parliament in the Sentencing Act of 1991, in Section 5, subsection 4, in particular. Section 5, subsection 4 of the Sentencing Act in Victoria provides that:
So far as -
it provides as follows:
A Court must not impose a sentence that involves the confinement -
and there is a distinction made between imprisonment involves immediate confinement, of course, and imprisonment by way of a suspended sentence; the Parliament is addressing itself to actual confinement here and it says:
A Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose of purposes for which the sentence is imposed cannot be achieve by a sentence that does not involve the confinement of the offender.
Now, the expressions used by the Court of Appeal in this instance, and in particular there is one expression at page 12 in the judgment of Justice of Appeal Charles has the tendency in our respectful submission to create a test and a burden that is contrary to the policy of the Sentencing Act because what his Honour says there, and this is about three-quarters of the way down:
In my view no strong special or exceptional circumstances were here established to justice the sentencing Judge in not imposing an immediate custodial sentence.
What that tends to indicate is that if a determination is made that a custodial sentence is appropriate a Judge has to be persuaded by the availability of strong special or exceptional circumstances to suspend it. That, in fact, is wrong when one looks at the - and the burden is place wrongly and the quantum of proof is placed wrongly, when one looks at the provisions of the Sentencing Act itself which provides a hierarchy for imprisonment which tells us that one has to - if one looks at Section 5 there is a hierarchy which is created there.
Subsection 3, of course, starts off by saying:
A Court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes -
that is the base point.
Then we go down to how a Court is to deal with the question of confinement, not a sentence of imprisonment which may or may not be suspended but the question of confinement, and it provides:
A Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does involve the confinement of the offender.
And the prima facie reading of that subsection indicates that is really for the Crown or for the presentation of the case to be persuade the Judge of that positively; in other words, that a non-confinement term of imprisonment is inappropriate; whereas we would say ‑ ‑ ‑
HIS HONOUR: But in expressing itself in the way in which it did the Court did not have in mind, did it, the particular section or the wording of the particular section?
MR RICHTER: But that is why it needs to be corrected and that is why it raises a matter of special importance.
HIS HONOUR: But the tenor of what is said is that - I mean the Court of Appeal is not concerned with onuses of proof or anything like that.
MR RICHTER: No, but it appears to lay down a principle that a Judge who has decided, and this is the primary sentencing Judge, a Judge has decided or indeed a ‑ ‑ ‑
HIS HONOUR: What does Vallis's case decide?
MR RICHTER: I am sorry?
HIS HONOUR: What does Vallis's case say?
MR RICHTER: I have had a very brief look at it, it does not decide that at all. Vallis's case deals with a completely different sort of situation.
HIS HONOUR: What does it say at page 277?
MR RICHTER: Yes, I should have brought it with me, I did not bring it with me, I will send my junior out to get it whilst my learned friend is speaking, but my recollection of Vallis's case was it completely distinguishable on that short of issue and that is why we say that the tendency of that passage is in fact to restate what is needed to be established before a sentence is suspended. We say it has got it upside down. It is not for an accused person, for a prisoner to persuade the sentencing Judge that there are strong special or exceptional circumstances to warrant the suspension of the sentence.
The tendency of the Sentencing Act in subsection 4 of that, and the hierarchy established by the whole of Section 5 indicates that it is completely the other way; a Judge starts off with the proposition that if a sentence of imprisonment is appropriate it ought to be suspended unless there are very good reasons for it not to suspended. Now, those very good reasons have to come into existence by way of either persuasion by the Crown or the self-evidence of that proposition. So that in our respectful submission provides an important special leave point because if it is allowed to stand there is the possibility that in a jurisdiction where leave to appeal is not necessary the sentencing principles will go awry.
Now, I will not repeat the submission which is summarised as best I could in the outline of submissions. And the final point of special leave that we say arises out of this case is that the Court of Appeal failed to recognise that the double jeopardy principle has a greater application in fact where a wholly suspended sentence has been imposed, and the respondent to a Director's appeal has been free in the community as against one in which an immediately effective term of imprisonment has been imposed, and the Director's appeal effectively complains of the inadequacy of its length.
And the passages at pages 9 and then pages 13-14 do not indicate in our respectful submission that the learned Judge was conscious of that distinction insofar as it might bear significantly upon the decision whether or not to overturn the sentence below. We would submit that that is a matter of high principle and of general applicability because for a number of reasons one is able to demonstrate that it ought to be a far, far more extreme case to warrant the interference that occurred in this case with the sentence below.
And so far as the judgment of the Court of Appeal in this instance is concerned in our respectful submission it ends up dealing with the matter on the same sort of factual basis that the learned trial Judge in fact dealt with it, in particular the arguments in relation to count 1 about whether or not there was an intention at the outset to defraud or whether that became converted at some later stage the Court indicates that it is content to deal with on the basis that the primary Judge was in fact correct.
So it is not as though there was a manifest error demonstrated, there were no manifest errors demonstrated, the Court considered that it was manifestly lenient giving absolutely no analysis of cases or no analysis of what the appropriate range would be in this sort of case. We say that there are a number of cases that in fact exist to demonstrate that it is not outside the sentencing discretion range and that is something that may need to be argued hereafter, but the fact is there is nothing in the judgment itself that tells us why it is outside the range or why it ought to be outside the range, and so it is also an important ‑ ‑ ‑
HIS HONOUR: There is quite a lot. I mean ‑ ‑ ‑
MR RICHTER: I am sorry?
HIS HONOUR: There is quite a lot, it tells you why, because these were offences of dishonesty, that a considerable amount of money was involved, that they were calculated and so on.
MR RICHTER: Yes.
HIS HONOUR: The Court of Appeal deals with the facts quite fully.
MR RICHTER: That is right, but so far as the Court of Appeal is concerned it does not deal with it in terms of the context of other cases of similar nature.
HIS HONOUR: Well, it does not have to, does it?
MR RICHTER: Well, it is the other cases of similar nature that give the range, it is not really appropriate for a Court of Appeal to be taken to be saying, From hereon in where someone steals or defrauds X dollars over a period of time they have got to go to gaol?
HIS HONOUR: The Court of Appeal is the body that sets the range very often.
MR RICHTER: It can assess the range.
HIS HONOUR: Sets it.
MR RICHTER: I am sorry?
HIS HONOUR: Sets the range.
MR RICHTER: Yes, it sets it, but it does not set it in a vacuum and, indeed, there are authorities both in the Court of Appeal and in the High Court that say that you do not just pluck a new range because that is unfair to a particular person and you do not elevate the range in the one go, as it were, by doing what the Court of Appeal appears to have done here, you do it as a result of a careful analysis of previous sentencing.
Now, the primary Judge had an analysis of previous sentencing too before him. There are a lot of cases that could be put to a Court in terms of demonstrating that where there has been significant dishonesty, and this of course was significant dishonesty involving a large amount of money, you do not necessarily impose an immediately effective custodial sentence; the range is open to impose a custodial sentence which is suspended, for example; and the interesting thing, of course, is that the sentence that the Court of Appeal actually imposed is a sentence that is capable of being suspended.
In other words, it is a sentence the totality of which is less than 24 months and could have been suspended, and going back to the other point that we raised in relation to the Sentencing Act prime facie ought to have been suspended and was not suspended because the Court in our respectful submission acted on the basis that it was for the applicant to persuade it, to persuade it that there were strong special or exceptional circumstances to justify the non-imposition of an immediately effectively custodial sentence.
[3.40pm]
Of course the strongest aspect that should have justified that if justification needed to be provided in that form was the fact that they had been at large, the offences were old, there was plenty of evidence that they had reconstructed their lives in a very, very significant way, there was every reason to permit them the liberty of going at large, including the family situation, the fact that they were employing 11 other people ‑ ‑ ‑
HIS HONOUR: But these are not special leave points, are they?
MR RICHTER: They are not special leave points but they are matters that the Court of Appeal ought to have had regard to and sufficient regard to because we say that it ‑ ‑ ‑
HIS HONOUR: But I mean it is not a special leave point to say that the Court of Appeal did not have regard to these matters.
MR RICHTER: No, the special leave point is to say that having had regard to all the matters the Court of Appeal considered that changing the sentences as it did, and it repeated the sort of error of which it has complained before about the Judge giving four months on the first count and not accumulating and so on. The interesting thing of course is they gave the same amount on each of the counts and gave marginal accumulation and one could say that was a tailoring exercise just like the original sentencing Judge's exercise was a tailoring exercise, that is acceptable.
What is interesting is they came to a conclusion that the appropriate term of imprisonment was 15 months with a minimum of nine, well below the term of imprisonment that is capable of being suspended and that prima facie under the Sentencing Act, ought to be suspended ‑ ‑ ‑
HIS HONOUR: But the reason they did that they took into account the element of jeopardy, they said the sentence would have been greater had it not been for that.
MR RICHTER: Indeed, indeed, that is what they said, but we do not know what they would have given otherwise, but the point is they were really obliged to fix it that way and having fixed it that way at 15 with the nine, the sentencing considerations then really come into play. You do not, in our respectful submission, give with the one hand and take away with the other, if your sentencing consideration is because this is a director's appeal and we are not going to give you as much, we will give you 15 months instead of three years the other sentencing considerations that militate towards leniency also operate namely this on the face of it given the history of the matter is eminently suitable for suspension, and we ought to have good reason why it should not be suspended.
Now, that essentially, your Honour, is the argument that we make, will not improve with repetition. We say clearly there are reasonably arguable, in fact highly arguable points of special interest that arise from this case. If no bail is fixed then a partial futility will occur so far as three or four months of these men's lives being gone, with damage which may well be irreparable, the loss of the business that they have taken some years to rebuild, problems at home that are referred to in the affidavit, that might all happen.
The consideration militating against that, of course, is one that has been spelt out in some of the cases which are saying it is no good to appear to be kind when in fact it may be doing a disservice. So if I give them bail now I may have to pull them back in later if they lose the appeal and that is a double cruelty. The answer is, in this sort of case ‑ ‑ ‑
HIS HONOUR: Well that is an argument that I would take into account.
MR RICHTER: I am relieved by that because in this sort of case the real cruelty was then going in without any notice and without being able to make arrangements which they would be able to make if bail was granted here on the basis that if they do not lose the appeal they will have at least settled their family affairs and settled their business requirements so that they can go in without the additional suffering of knowing that their lives are in total disarray, if your Honour pleases.
HIS HONOUR: Thank you, Mr Richter.
MR RICHTER: Pardon me, sir, we now have Vallis' case.
HIS HONOUR: And what does it say at page 299, was it?
MR RICHTER: Yes, your Honour. It is reported [1996] 1 VR at 257:
The accused admitted false documents to the Commissioner submitted with a view to strengthening his position in a dispute involving an assessment.
Your Honour can see the headnote.
HIS HONOUR: 277 it is.
MR RICHTER: At 277, your Honour has a copy there now, I take it.
HIS HONOUR: I do not.
MR RICHTER: We procured one for you, your Honour.
HIS HONOUR: Well it is merely saying what is said there.
MR RICHTER: Yes.
HIS HONOUR:
These cases also emphasise the discretion which the sentencing judge has at least in strong, special of exceptional circumstances not to impose an immediate custodial sentence.
MR RICHTER: Yes, well that appears to compound the problem that I have highlighted as a special leave point, having regard to the formulation in the Sentencing Act, if your Honour pleases.
HIS HONOUR: Very well, thank you, Mr Richter. Yes, Mr McArdle.
MR McARDLE: Your Honour, I will not dwell upon the personal circumstances surrounding both applicants, as your Honour has indicated that the focus should be upon the Court rather than the individuals. I put this in passing that in fact there is nothing unusual or exceptional or even remotely so in relation to the personal circumstances of both of the applicants, relying for that observation on the contents of the affidavit and indeed the matters that my learned friends have put to your Honour.
Now in relation to the events themselves they went into custody as a result of the adverse determination of the case, according to their affidavit, on 13 September. All the indications are that the special leave application would be heard in Melbourne, as it turns out, on 13 December. While the carriage of that is in the hands of my learned friend's solicitors there is nothing that I am aware - and I suppose also the listing arrangements of this Court - but there is nothing that I am aware of that would prevent the case from coming on on that day.
HIS HONOUR: That is as I understand the situation, and I also understand the situation to be that in all likelihood any appeal would be heard before the expiration of the non-parole period of the sentences, but that is not the point that Mr Richter makes. He says well assume that he is successful in what he would regard as being successful is in having the non-custodial sentence restored, sentence for trial judge, then there would be a futility in the sense that his clients would have served a period in prison which they could never regard.
MR McARDLE: Yes, and then his position would be similar to that of Mr Chew on his first application, that is to say ‑ ‑ ‑
HIS HONOUR: What about Mr Chew on his second application?
MR McARDLE: Well by that stage Mr Chew had achieved one thing, he had got special leave, he had achieved that. It would appear that the argument had been heard and that the Court had reserved its decision, without, I think, indicating what course the Court ultimately intended to take, and it is sometimes the case, of course.
HIS HONOUR: What is the citation of the first Chew case?
MR McARDLE: I have got them both here. They both, as it turns out in vol 66 ALJR, not so far as I can ascertained, reported in the CLR and the first Chew case is at page 209 and the second one is at page 221. The first one was heard in Perth on 24 October 1991 before his Honour, McHugh J, and his Honour, Toohey J heard the second one in Canberra on 11 December 1991 and what had occurred, I think, was that on 10 or 11 December a special leave application had been heard and the case apparently had been argued and that the matter was then reserved.
HIS HONOUR: Well I suppose you can say that if the application for special leave was successful, and it did not appear that the appeal was going to come on or at least judgment was not going to be delivered for some time, then an application for bail could be renewed.
MR McARDLE: Yes, yes, and what happened in Chew ‑ ‑ ‑
HIS HONOUR: And that would be closer to Chew (No 2) than Chew
(No 1), yes.
MR McARDLE: Yes, and in fact I think the Crown made a concession in Chew (No 1) that bail would be appropriate.
HIS HONOUR: It withdrew that by Chew (No 2).
MR McARDLE: Yes, Chew (No 2). Now, in those circumstances ‑ ‑ ‑
HIS HONOUR: It seems it should have reversed its position.
MR McARDLE: Your Honour, in those circumstances I would prefer, unless your Honour presses me not to make any such concession at this stage although I would say that the position had improved in the event that special leave is granted in December.
[3.50pm]
But I do not want to be in the position of moving backwards and forwards in relation to undertakings and such. But in relation to the second Chew case, he was successful before his Honour, Toohey J, who found that exceptional circumstances in all the events then existed. Now, in this case, of course, both applicants, according to their affidavit, or the affidavit filed on their behalf, will be eligible to be released on parole in June of this coming year, I think about the 12th, or thereabouts, which would fit in with the calendar months.
HIS HONOUR: Do you make any distinction between non-parole and parole periods of the sentence?
MR McARDLE: I was going to move on to that because there is then another six months of parole. And, of course, if the applicant is successful and if the appeal is successful and, amongst other things, that exercise rehabilitates their reputation in the community, then it is still a matter as to the order, even though the sentence might be served, then there is still the fact that they can take what benefit is available - and I do not say this lightly - of the fact that the original Court of Appeal judgment of quashed. And it would be of some importance. So it is not entirely futile whatever happens. It may well rehabilitate the reputation to an extent.
HIS HONOUR: Well, not entirely.
MR McARDLE: Not entirely.
HIS HONOUR: It is not a case where the conviction is removed.
MR McARDLE: No. They were convicted by the primary judge.
HIS HONOUR: I know. But it is not a case where there is an application for leave to appeal against conviction as well as sentence and, if the appeal is successful, the conviction is quashed. That does rehabilitate one, I imagine.
MR McARDLE: Absolutely. And I suppose part of a curious aspect of this, if I might say so, is that the jurisprudence, or at least my learned friend's submissions, tend to talk in terms of things being absolutely futile or partly futile. Things are futile or they are not, in my submission. Now, whatever be the situation, they would be able to say in the future, yes, we were convicted but we were not sentenced to immediate imprisonment as a result of that, in the event that they were successful in the High Court in both application for leave to appeal and the hearing of the appeal.
Now, your Honour, if I could move now to some of the matters that were put before you. This, it is submitted, of course, is not the occasion for a special leave application and, your Honour, the matter is not fully argued before you. Some of the matters - I appeared in the appeal, as your Honour will see from the judgment, and at least one of the matters that my learned friend has advanced, that is to say the obligations, as he would characterise them, on the Crown prosecutor at the time to intervene, without invitation, it was not put, as I remember the appeal.
That creates a difficulty, it is submitted, at the very least, for the applicants in pursuing a special leave application or an appeal when it turns out that the High Court does not have the benefit of the intermediate Appellate Court's views on the matters. Well, now, moving to what is said to you to establish a reasonably or reasonable arguable case. Now, the authorities of Everett and Malvaso, together with a number of others; Griffith, for example and some decisions of the State Courts, including the Victorian Court of Criminal Appeal, were all put before the Court in this case.
It is all material, that is, the day to day work, if I might say so, of the Court in the criminal jurisdiction. There are numbers of directors appeals, and these matters are always in the forefront of the arguments, including the two unreported cases of O'Rourke and Clarke. Now, Everett and Malvaso involve cases where the director had to seek leave to appeal. Malvaso's case was one where there was a difficulty which ultimately caused the appeal to founder, as to whether or not leave had been obtained. That is a South Australian case.
Everett's case is a Tasmanian case. That too is another area where leave has to be sought. From that point of view those authorities, it is submitted, are of limited assistance. Nevertheless, the observations made by the Court were taken into account and, I contend, correctly taken into account in the instant appeal. In relation to the prosecutor's duties my learned friend makes a distinction between positive, or passive, at least, and active error. Now, there is already a body of law in relation to the prosecutor's obligations.
He or she, it is submitted, should not remain passive in the event that it appears that a Judge is going to fall into error. An obvious example would be as to the maximum period of imprisonment, or something of that nature; something could be easily sorted out. On the other hand, an examination of what occurred in this case, in particular pages 39 and 40 which were drawn to your Honour's attention by my learned friends, would indicate that at the conclusion of the plea, because a good deal of the material before your Honour seems to relate to subpoenas and costs, and such. But at the conclusion of the plea it was made quite apparent what the views of the Crown were in relation to the seriousness of this matter. And it was, of course, a very serious matter.
It involved four episodes over a period of time and a very large amount of money. The matter was brought before the Court successfully because of the manifest inadequacy of the penalty. But there are other matters of consideration. The trial Judge took, it was submitted, an erroneous view as to the damage done as a result of this escapade. And it was important, deemed important by the director, and an invitation was extended to the Court, and the Court accepted that invitation to make some observations as to the seriousness of this sort of offence and how it affects the community generally.
That is one of the reasons why the case was brought before the Court. And it is in the context of those observations that one comes to the matter that my learned friend said displays an error by his Honour, Mr Charles J; but I will come to that in a moment. In relation to the prosecutor's duties it is not, it is submitted, the law, nor is it a matter that should be the subject matter, or reasonably arguably the subject matter of a special leave application that the prosecutor has an obligation to somehow, without invitation, whenever a disposition is submitted as being appropriate on behalf of an accused, to intervene in that.
This is a case where he was not invited to do so, he was not invited by the Judge. He may well have, with good reason, it is submitted, have thought that what he had to say was sufficient.
HIS HONOUR: But in any event the point you make is that this was not raised in the Court of Appeal, and therefore cannot form any strong basis for the success of an application for special leave to appeal.
MR McARDLE: Moving on to the next matter, your Honour. The observations made by his Honour, Charles J, at the bottom of page 12. Of course, it has to be seen in the context where his Honour makes those observations about the damage done to the community generally, not just the financial institutions, as a result of this sort of activity. His Honour's observations are not such as to lead any Court in the future to think that he had misunderstood the scheme of the Sentencing Act and reversed any onus.
The ground that he was concerned with was, of course, ground G, that is manifest inadequacy. One that, of course, does not admit to too much argument, it is submitted, and one in which it was clear with those considerations, it was a very serious case and the tariff would require immediate imprisonment, and that there was no material available to suggest otherwise. Now, the last matter raised before your Honour related once again to the matter of double jeopardy. It is clear that that was taken into account not only as a result of what the Court said, but the sentence was, of course, less, the imprisonment was less.
[4.00pm]
Malvaso was a case where a suspended sentence was the subject matter
in appeal, it is a curious case in its way. So these matters have been considered by the High Court and are not, it is submitted, matters requiring or justifying special leave in the future. Your Honour, I think that concludes the matters that I desire to put to you unless there are some matters you wish to raise with me.
HIS HONOUR: Thank you, Mr McArdle. Mr Richter.
MR McARDLE: If your Honour pleases.
MR RICHTER: Very briefly, your Honour, first of all as to the matter of the decision as in Chew. Chew are classically the sorts of cases that are covered by the Chamberlain principle, there is an appeal against conviction there. The original conviction by a jury has a certain sacrosanctity about it which, if not disturbed by an intermediate Court of Appeal, spells the kind of finality in law that unless something very special happens thereafter, it stays that way, and it is for that reason that in Chew it is not to the issue; Chew is quite different.
The second matter so far as Everett, Malvaso and Griffiths that my learned friend adverted to all having been before the Court of Appeal, I do not see much of a discussion of those principles of those specific cases in the judgments themselves, but the point that we make is that there is a difference between States where you need leave to appeal and States where you do not have leave to appeal. And of course your rights are more important in a State like Victoria where the appeal is as of right to take the double jeopardy aspect into consideration at the level at which one decides no matter how towards the lenient end of the range the sentence is, one decides whether to intervene in the first place.
Not just having decided to intervene, to discount the sentence by the double jeopardy aspect. And it is that which constitutes a special leave point in our respectful submission. Finally, so far as the matter being serious on the face of it, of course it was serious on the face of it, that is why it drew a sentence of imprisonment from a primary judge rather than just a bond. He sentenced to a term of imprisonment as did the Court of Appeal sentenced to a term of imprisonment. The difference lay in the way in which the Sentencing Act is to be regarded in particular circumstances where who has to demonstrate the appropriateness of suspension.
Now, that is a special matter because it goes straight to the heart of who bears what burden and to what degree. If your Honour pleases.
HIS HONOUR: Thank you, Mr Richter.
The two applications before me are for bail pending the hearing of applications to this Court by the applicants for special leave to appeal against a decision of the Victorian Court of Appeal which substituted custodial sentences for the non-custodial sentences imposed upon them by the trial judge. Each applicant was convicted upon four counts of obtaining property by deception and was sentenced by the trial judge to four months imprisonment, suspended for two years' on one count. The trial judge made community based work orders in respect of each of the other counts.
On 12 September 1996 the Court of Appeal substituted for those sentences a total effective sentence of 15 months imprisonment in the case of each applicant. Each applicant was ordered to serve nine months before being eligible for parole.
The power of this Court to grant bail is to be found only in its inherent power to preserve from futility the exercise of the Court's jurisdiction to grant special leave to appeal and to allow an appeal thereafter. See Chamberlain v The Queen (1983) 46 ALR 608. There is no general power to grant bail pending appeal as there is in other jurisdictions, but even if there were it would remain a power to be exercised only in exceptional circumstances. See Re Cooper's Application for Bail [1961] ALR 584; Hayes v The Queen (1974) 48 ALJR 455. In effect, bail would be granted only where an appeal was likely to be successful or there was a risk the sentence would have been served by the time the appeal was heard.
The practice of this Court must be more restricted, not only because of the limited nature of its jurisdiction, but also because an application for special leave to appeal will ordinarily be made seeking leave to appeal from a court of appeal which has considered the conviction and sentence in the trial court and has found no error. In these cases, however, the applicants are seeking special leave to appeal against the judgment of the Court of Appeal upon an appeal by the Director of Public Prosecutions against their sentences. That is to say the applicants have not had a previous opportunity to appeal against the sentences now imposed on them and to seek a restoration of the non-custodial sentences imposed upon them by the trial judge.
The applicants' applications for special leave to appeal and any appeals if leave is granted can, it seems, be heard in this Court before the expiration of their sentences and before they become eligible for parole. The application for special leave in any appeals will not therefore be rendered futile if bail is not granted because the applicants will still have a non-parole portion of their sentences to serve at the conclusion of proceedings in this Court, and any order of the Court made in their favour will still be effective albeit possibly reduced in effect somewhat by the period served if bail is not granted. See Chew v The Queen (No 1) (1991) 66 ALJR 209; Chew v The Queen (No 1) (1991) 66 ALJR 221. I would add that of course if the situation had changed by the time the applications for special leave to appeal were heard and if those applications were successful an application for bail could be made at that time. But in this Court the question of bail is not one of the effect which the refusal of bail would have upon the applicants. Rather, it is whether the granting of bail is necessary to preserve the jurisdiction of the Court. In this case, in my view, it is not.
Moreover, even if I were to consider that the reduced effectiveness of the order which might be made by this Court in favour of the applicants was a relevant consideration, the likelihood of success in the applications for special leave to appeal would clearly have to be taken into account. Putting to one side the fact that the applications for special leave to appeal are for leave to appeal against a judgment given upon a successful appeal by the Director of Public Prosecutions, this Court grants special leave to appeal against sentence only where there has been an error of law or a gross violation of the principles of sentencing. The judgment of the Court below is carefully considered, unanimous, and does not, in my view, display either of those shortcomings. Nor do I think that the judgment fails to take into account the exceptional nature of appeals by the Director of Public Prosecutions against sentence. See Everett v The Queen (1994) 181 CLR 295 and 299.
The point raised by the applicants before me that the prosecutor did not make any specific submission to the trial judge concerning the inadequacy of sentence was not raised as a ground of appeal before the Court of Appeal and was, it seems, not put. Accordingly, it does not carry great weight as a special leave point. Nor do I think that the judgment demonstrates any failure on the part of the Court of Appeal to observe the requirements of section 5 subsection (4) of the Sentencing Act 1991 Victoria. Nor does the judgment lay down any proposition, in my view, which is in conflict with the requirements of that subsection.
The Court of Appeal was aware of the considerations dictated by the element of double jeopardy present in the matters before it and had regard to those considerations in its judgment. The reasons for the increase in the sentences which the Court of Appeal thought appropriate appear adequately in its judgment and it was not incumbent upon it, in my view, to establish a range of sentences by reference to other cases. I do not consider that the applicants have a substantial prospect of success in their applications for special leave to appeal.
For all of these reasons the application for bail must be refused and I so order. Is their anything else, gentlemen?
AT 4.11 PM THE MATTER WAS ADJOURNED
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