Lankreijer v The Queen

[1992] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl21 of 1991

B e t w e e n -

PAUL JOHN LANKREIJER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Lankreijer 1 13/2/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992, AT 9.30 AM

Copyright in the High Court of Australia

MR_P ._J. HIDDEN, OC:  May it please the Court, I appear with

my learned	friend, MR B.W. INGRAM, for the
applicant.	(instructed by the Director, Legal Aid
Commission	of New South Wales)

MR M.S. WEINBERG, QC: If it please the Court, I appear

together with my learned friend, MR T.L. BUDDIN, on
behalf of the respondent. (instructed by the

Director for Public Prosecution)

BRENNAN J: Yes, Mr Hidden?

MR HIDDEN: If the Court pleases. Your Honours, we hand up

an outline of argument.	It is perhaps our briefest
yet.

BRENNAN J:  Does it add anything to the summary of argument

that is already in the application book?

MR HIDDEN:  A decision, Your Honour, yes, in the last

paragraph.

Your Honours, the applicant pleaded guilty in

the district court to a charge of importing heroin.

Your Honours, we regret that we did not lodge a

list of authorities within the requisite time

required for applications in Sydney. For that

reason, Your Honours, may we hand up to

Your Honours a copy of the relevant legislation extracted from the Watson & Watson Commonwealth

Criminal Practice?

BRENNAN J: Thank you.

MR HIDDEN:  The charge is laid under section 233B(l)(b) of

the Customs Act, which appears at page 1038 of the

extracted portion of the practice, Your Honours.

The penalty for that offence, where it involves as it does here a trafficable quantity of heroin, is provided by section 235(2)(d)(i) of the Act, which

is extracted at page 1052. It provides that the

sentence ,normally is a fine of up to:

$100,000 or imprisonment for ..... 25 years -

however, the effect, Your Honours, of

subsection (3) of that section is that if:

the Court is also satisfied that the offence

was not committed ..... for any purposes related

to the sale of, or other commercial dealing

in -

the heroin, then the maximum sentence is very much

lower. It is the sentence prescribed by

subsection (2)(e), being:

Lankreijer 2 13/2/92

a fine not exceeding $2,000 or imprisonment

for a period -

of -

2 years, or both.

Your Honours, the applicant was, at the

relevant time, 31 years of age, at the time of the

offence; an immigrant from New Zealand who had no

criminal record but who had a lengthy history of

heroin abuse commencing in about 1980.

In August 1989 he travelled to Thailand and in

Chang Mai he purchased for about $6000 a fairly

large amount of heroin. The precise amount is

disclosed at page 17 of the application book, Your Honours, which is the second page of the sentencing judge's remarks on sentence.

The gross weight of the substance purchased

was a little over 280 grams and it was quite highly

concentrated so that the amount of pure heroin was

a little over 232 grams. His Honour estimated, in

the light of some evidence before him, that on the

street in Sydney, sold as street deals, its retail

value might have been of the order of $450,000.

Now, Your Honours, the applicant's case was

that - or it was common ground that he had suffered

since childhood with cerebral palsy and he had a

number of long-standing associated physical defects

with the emotional effects that one would expect

from that condition. It would seem that that

loomed large in his turning to heroin. And he had

lived for some time in a de facto relationship with

a lady who was herself a heroin addict and the two

of them had been regular users for quite a long
period, save for a period in the late 1980s where

it seems that he attempted to defeat his addiction through a methadone programme. It seems that that

failed and he returned to the use of heroin prior

to his trip.

He was largely in employment in the

construction industry which was employment which

came and went. Shortly before his trip to Thailand

he had left a particular job he had and had been

out of work for a few weeks, as I understand it.

That did cause some financial difficulty. He sold

his motor vehicle for some $13,000 and with the proceeds financed the trip to Thailand and with part of the proceeds bought the heroin - - -

BRENNAN J: Well, no doubt, you need to identify the facts

but what is the special leave point?

Lankreijer

13/2/92

MR HIDDEN: 

Your Honours, it is this: the unusual feature

of the case is that at the hearing, for reasons
which we are unable to explain, counsel then
appearing for the applicant conceded that

section 235(3), that is the provision which would

have reduced the maximum sentence, was not
applicable. Notwithstanding that, the effect of
the whole of the evidence before His Honour, in our

submission, including the oral evidence of the

applicant himself in the proceedings, was that the
section was applicable.

McHUGH J: That is an almost impossible proposition to put,

is it not, Mr Hidden? I mean, if it was not an

issue; it was specifically conceded the section did

not apply, how can you then say that the trial

judge was satisfied in accordance with the section?

MR HIDDEN:  Your Honour, because of his findings.

McHUGH J: His findings do not support it.

MR HIDDEN: In our submission, they do, Your Honours.

TOOHEY J: Is that what you are saying, Mr Hidden, that he

was satisfied, as appears from the material, or

that he ought to have been satisfied?

MR HIDDEN: Certainly he ought to have been and, indeed, in

our submission, Your Honour, from reading

His Honour's remarks on sentence, in effect he was,

although he did not express those findings in the

terms of the section. In particular, Your Honours,

if we can take Your Honours to pages~ - -

BRENNAN J: But you have to be able to point to a negative

finding to satisfy the section.

MR HIDDEN:  Yes, Your Honour.

BRENNAN J: Where is the negative finding?

MR HIDDEN: There is a positive finding, Your Honour, which

amounts to the negative finding, in our submission.

BRENNAN J:  Where is the one which amounts to the negative

finding?

MR HIDDEN: Pages 22 to 23 of the application book,

Your Honour.

McHUGH J: But that simply says that he made this trip

specifically to satisfy his own and his wife's - de

facto - drug habit, does it not?

MR HIDDEN:  Yes, Your Honour.

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BRENNAN J:  And couple that with the concession that was

made, the reason for which you say you are unable

to identify, and how do you convert that into a

negative finding?

MR HIDDEN:  Your Honours, one has to have a look at the

comments which His Honour made in the course of the

remarks on sentence before arriving at those

findings.	He commented that the applicant was a
heroin user at page 17 of the book.	He said, in
the middle of the page:

The prisoner stated that he purchased the

heroin for his own use from funds he had

obtained from the sale of his motor vehicle. friends or associates, and having regard to the quantity involved I do not find this

admission surprising. Perhaps I should have

mentioned earlier that he said the heroin was

available for his own use and the use of his

de facto wife to whom I shall refer later.

Now, as to the question of the supply to

friends or associates, the applicant had made such

an admission, Your Honours, to the police and while

Your Honours do not have, in the application book,

the transcript of the evidence of the applicant in
the sentence proceedings, the applicant was in fact

questioned about that at some length, both in-chief

and in cross-examination, and the effect of his

evidence was no more than that if a friend or

associate who was sick and in need of heroin had

called by and wanted some, he would have given that

person some.

BRENNAN J: Freely?

MR HIDDEN: Yes. That is the effect of his evidence.

BRENNAN J: Without charge?

MR HIDDEN: Yes, Your Honour.
BRENNAN J:	How did that establish necessarily the negative

that is in (3)(b), given the concession?

MR HIDDEN:  We appreciate the problem with the concession,

Your Honour. But it is the effect of the evidence

that needs to be looked at and it may be necessary,

Your Honours - we have, in fact, in the course of

preparing the matter, photocopied the applicant's

evidence and if Your Honours would be assisted by

reading it, we have adequate copies of it here.

Suffice to say that the effect of his evidence was

that he was a long-term heroin user; he went to

Thailand specifically because he could get a

Lankreijer	13/2/92 long-term supply of heroin there very much cheaper
than he could in Sydney. He was to satisfy the
needs of himself and of his wife and, he said, from
time to time, if an associate was in desperate need
he might have given him some because he would have had enough to do so.

He was specifically cross-examined about this:

when in Sydney obtaining heroin from his normal

suppliers in King's Cross he would not have done so

because he simply could not afford it; he could not

afford to give it away. But at the sort of

wholesale price at which he could obtain a large

quantity in Thailand, he could afford to maintain
his own supply in the long term and be able,

occasionally, to give a little away. That was the

effect of his evidence. And on those matters he

was pursued in cross-examination.

It is in the light of that, Your Honours, that

we submit that clearly what His Honour was

intending to convey by the remarks at pages 22 to

23 of the application book was that he accepted

that this was the obtaining of a large quantity of

heroin for no other purposes than the use of the

applicant and his de facto wife with the occasional
gift, perhaps, to an associate who needed it.

Indeed, Your Honours, the sentence passed by

His Honour is consistent with such a finding
because while he did not apply section 235(3), the
sentence of three and a half years with a
non-parole period of two and a half years is right
at the bottom of the available range given the
higher maximum penalty available.

McHUGH J:  What do you say about - at page 23 when

His Honour is talking about the "mitigating

factors" at point 4 where he refers to:

the lack of any prospect of substantial

financial gain.

MR HIDDEN: Yes. Your Honour, in our submission, that is

easily misread. What His Honour was saying was

that "many of the customary mitigating factors

exist", in other words, "This is not the usual type

of unmitigated case where the importer stands to

make a substantial financial gain." That factor is

absent here and that being absent, that is a

mitigating factor which one sometimes finds in

these cases, that is all His Honour was saying. It

is not possible, Your Honours, to read that as any

kind of finding that there might have been some

financial gain or even any doubt about the

possibility that there might have been in the

context of His Honour's remarks as a whole.

Lankreijer 6 13/2/92

McHUGH J: But in the context of this case, surely

His Honour would have proceeded on the basis that

there was, in fact, an admission. Counsel who

appeared for the applicant specifically conceded

that he did not seek to bring himself within

235(3)(b) which must surely carry with it, in the

context of a sentencing procedure, an admission

that it was used for a purpose - at least some

purpose related to commercial dealing with the

goods.

MR HIDDEN: 

Your Honours, in our respectful submission, the

concession should not be so interpreted in the
light of the way the proceedings were conducted.

There was another material in the proceedings in

which the assertion of no intention of commercial

gain was clearly made.  Now, that material is also

not before Your Honours.  To the probation officer

that assertion was made.

BRENNAN J: 

Mr Hidden, there seems to be a growing practice

for the erection of a Chinese wall between counsel

who appear for an accused in this Court and the

counsel who appears in the court below, so that the

case emerges here with a completely new complexion,

unexplained and inexplicable.

MR HIDDEN:  Your Honour, regrettably, sometimes that has to

happen. The curious feature of this case,

Your Honours, is that the concession was made but then material was tendered, documentary material -

as I have said, the pre-sentence report and medical

reports in which a history was given in which the emphatic assertion of no commercial intention was

made - and the applicant gave evidence, the only

purpose of which can have been to show - partly to

explain how he got into heroin use and why he

needed such a large quantity but also, clearly, to

show that there was no intention of commmercial

gain. That is largely what his evidence was about.

BRENNAN J: That may have been so but that is not

inconsistent with the notion that (3)(b) was to be

negatived.

MR HIDDEN: Well, Your Honour, in our respectful submission,

it is. So that at the end of the day, despite this

concession, His Honour was left with evidence from

which, if it were believed, the conclusion would

readily be drawn that there was no purpose of

commercial gain.

TOOHEY J: Yes, but he may not have been prepared to draw

that conclusion, that is the difficulty. Once the

concession is made - you can understand when, in

the course of sentencing the trial judge canvassed

a variety of considerations and he may have spoken,

Lankreijer 7 13/2/92

as he did, about commercial gain or no commercial

gain, but that is really in the context that the

admission has already been made. It is one thing

to canvass a number of considerations but it is a

big step then to say that the court must have been

satisfied, in terms of paragraph (b), given the

concession.

MR HIDDEN:  Your Honour, in our submission, the evidence

could not stand with the concession, which then

left His Honour in a most unusual situation and it

is that situation which we certainly submit

attracts the grant of special leave. In a sense,

Your Honours, it is the converse of the situation

with which this Court dealt in Pantorno v Reg,
(1989) 166 CLR 466, and, again, we regret we must

hand Your Honours copies of that decision now.

Pantorno really was the converse situation

where it seems that sentence proceedings for a drug

matter were conducted upon the basis that a lower

penalty was applicable. The learned sentencing

judge adjourned the matter for sentence and excused

counsel from attendance and in passing sentence

determined that the higher penalty was applicable.

Now, in effect, without going into the detailed history of the matter which involved the Full Court

in Victoria re-examining one of its own decisions

and overruling it, suffice it to say this Court was

of the view that, in effect, natural justice had

been denied because the parties were not appraised
of the view which His Honour had formed and were

not given the opportunity to meet it.

At page 473 of the report, the Chief Justice

and Your Honour Justice Brennan had this to say at

about point 5:

When the parties to an adversarial proceeding agree on a proposition of law and conduct

their cases on that basis, their agreement

does not bind the trial judge. If the judge

determines the law to be different, he may
apply the law as he determines it to be, but

he must inform the parties of the view he has

formed when that is necessary to give them an

opportunity to address new issues arising from

the judge's departure from the proposition of

law on which the case was conducted.

Otherwise both parties are taken by surprise.

Now, Your Honours, as I have said - - -

TOOHEY J:  Can I just interrupt you, Mr Hidden? Really,

all that is saying is that the judge cannot move

beyond the area of concession without at least

Lankreijer 13/2/92

giving the parties an opportunity to address him,

but that is not the case here.

MR HIDDEN:	I appreciate that, Your Honour.
TOOHEY J:	He moved within the area of concession.
MR HIDDEN:	We can say no more than the dicta in Pantorno

are, to some degree, analogous and, indeed, this

situation is the converse of what happened in

Pantorno. But, in our submission, what happened

here -

BRENNAN J: Not quite, Mr Hidden. In Pantorno it was a

concession on a proposition of law. In other

words, the court acts in accordance with the law,

whether conceded or otherwise. But here we are

concerned with questions of concession of fact.

MR HIDDEN: Well, Your Honours, in that sense, the

concession in Pantorno was equally a concession of

fact. That is, it was not suggested that a state

of facts existed which would call a higher penalty

into question. Now, what we have here is a

concession that a state of facts does not exist which would call a lower penalty into question. The fact is at the end of the day the evidence was

precisely to the effect that the lower penalty was
appropriate.

Now, in our submission, Your Honours, at the very least, at the end of the day, the learned

sentencing judge should have said, "Well, Mr Crown,

in the light of the evidence, it seems to me that

section 235(3) is available. Do you want to do

anything more about it? For that matter, counsel

for the applicant, do you want to firm up your

proof on this issue?" In our submission, that

opportunity should have been given.

I should perhaps say this, Your Honours - we

have not yet turned and it is probably not

Mr Justice Carruthers, who gave the leading

necessary to turn to the judgment of the Court of both

judgment, at page 30, and Mr Justice Mahoney, at

page 31, made a remark to the effect that but for

the concession the Crown case might have been

conducted differently and further material might

have been put before the judge by the Crown. And,

indeed, at page 29, Your Honours, the form of the

concession announced by the Crown Prosecutor in the

sentence proceedings is set out.

Now, Your Honours, I am informed by my learned

junior, who appeared in the Court of Criminal

Appeal, that asked in argument what further

Lankreijer 9 13/2/92

material the Crown might have produced but for the concession, the learned Crown Prosecutor responded

that, firstly, there might have been more vigorous

cross-examination of the applicant; secondly,

evidence of a police officer might have been called

as to the number of shots or street deals which

might have been produced from this quantity of

heroin. Well now, Your Honours, the applicant was

cross-examined and cross-examined, it would seem,

to challenge the assertion that the drug was for no

other use than his own and his de facto wife's and

the occasional friend who needed a bit, and

His Honour was well aware of the quantity involved

and assessed, by his own calculations, quite a high

street value for it. It is not as if that fresh

material really would have altered anything, in our

submission, Your Honours.

Your Honours, we can only say that if the

Court would be assisted by it, we have extracted,
as we have said, additional material from the

sentence proceedings which do tend to show that the

whole of the evidence pointed towards no commercial

gain. What we have extracted, Your Honours, are

the pre-sentence report, the psychiatric report of

Dr Thomas Clarke and the oral evidence of the

applicant in the proceedings.

BRENNAN J: It is a matter for you, Mr Hidden, but as at

present advised it seems to me that you are a long

way short from establishing the necessary negative.

McHUGH J:  And even if you established it, what is special

about the case? I mean, the message has got to go

out to the criminal bar that this Court does not

sit as a court of criminal appeal.

MR HIDDEN:  What is special about the case, Your Honour, is

the most unusual course it took. It is as special

as Pantorno was, just in a very different way.

McHUGH J: Pantorno was a case of a denial of natural

justice.

MR HIDDEN: True, Your Honour, I accept that.

BRENNAN J:  The message perhaps also should go out that

counsel who do make concessions bind their clients

by making them.

MR HIDDEN:	If the Court pleases, those are our submissions.
BRENNAN J:	We need not trouble you, Mr Weinberg.

The applicant contends that the sentencing

judge erred in sentencing the applicant to three

and a half years imprisonment for importing heroin

Lankreijer 10 13/2/92

contrary to section 233B of the Customs Act 1901

(Cth) because, on the facts found by the learned

judge, the maximum sentence was two years

imprisonment. Under section 235 of that Act, the

maximum penalty for importing a trafficable

quantity of heroin is 25 years. However, section

235(3)(b) provides for a maximum penalty of two
years if the sentencing judge is satisfied that the
offence was not committed for any purpose relating

to the sale or other commercial dealing in the

drug.

The learned judge made no finding that the

circumstances of the offence fell within

section 235(3)(b). That is not surprising since

His Honour recorded in his judgment that counsel

for the applicant did not seek to rely upon the

lesser penalties provided by section 235 of the

Customs Act but submitted that the penalty should be at the bottom of the custodial scale.

Nevertheless, counsel for the applicant

contends here that, read as a whole, His Honour's

judgment shows that he was satisfied that the

circumstances of the case fell within

section 235(3)(b). His Honour said, inter alia:

However, the objective and subjective

facts satisfy me that the penalty that I

impose should be at the lower end of the

scale, even though the amount of heroin

involved was substantial. The circumstances

of the offence show he was a regular user who

made this isolated trip specifically to

satisfy his own and his de facto wife's drug

habit.

However, this finding falls short of finding that

the offence was not committed for any purpose

relating to the sale or other commercial dealing in

the drug. Moreover, the heroin involved had a

where counsel for the applicant specifically	street value estimated at $450,000. In a case
conceded that he did not rely on section 235(3)(b)
it is impossible to conclude that His Honour
intended to find what counsel for the applicant had refused to contend.

The case raises no question which even

arguably involves a special leave point.

Accordingly, special leave is refused.

AT 9.55 AM THE MATTER WAS ADJOURNED SINE DIE

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