Laurentiu v The Queen

[1993] HCATrans 296

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•

JA

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S3 of 1993

B e t w e e n -

DANIEL GIGEL LAURENTIU

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

Laurentiu 1 8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 9.34 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:  May it please the Court, I appear with

my learned friend, MR S.J. ODGERS, for the

applicant. (instructed by Christopher Murphy)

MR T.L. BUDDIN:  May it please the Court, in that matter I

appear on behalf of the respondent. (instructed by

M. Rozenes, QC, the Commonwealth Director of Public

Prosecutions)

MASON CJ:	Mr James.
MR JAMES:	The summary of the applicant's argument is set

out at page 93 of the appeal book. The concepts

referred to in that argument, "parity",

"possession", "telling lies in Becheru's trial" and

"evidentiary basis for sentence", relate directly

to the recently introduced provisions of
section 16A of the Commonwealth Crimes Act relating

to sentencing. That section has not been referred

to expressly on the list of authorities,

Your Honours, so I should hand to Your Honours

copies of that section.

DAWSON J: Did it apply in this case?

MR JAMES: Yes, Your Honour, and indeed, it was applicable

and referred to in the Court of Criminal Appeal as

well as by the trial judge.

DAWSON J: When did it come into effect? It has been in

effect for several years, has it?

MR JAMES: Well prior to this, Your Honour, and indeed, as His Honour Mr Justice Kirby points out, the first

case in relation to section 16A designed to explore

its effect was El Karhani, which was in the New

South Wales Court of Criminal Appeal well prior to

this decision.

TOOHEY J:  What use do you make of section 16A?

MR JAMES: Section 16A(l), Your Honour, requires a court to

impose a sentence that is of the severity

appropriate in all the circumstances of the offence

and, amongst other matters to which a sentencing

court must have regard, section 16A(2) requires the

court to have regard to the:

nature and circumstances of the offence;

in (a), and in (k):

the need to ensure that the person is adequately punished for the offence -

Laurentiu 2 8/10/93

What happened in the present case was that one

accused, who had imported 1.5 kilograms of cocaine

of a very high amount in value and had pleaded

guilty to that charge under the Customs Act and co-

operated with the authorities, was resentenced by
the Court of Criminal Appeal, because these
provisions had come into effect, to a sentence
which was subject to a discount of roughly SO per

cent because of his co-operation.

When it came to sentencing the present

applicant in respect of whom the charge was simply
possession, not the importation or being party to
any massive conspiracy, and the possession was of
50 grams, not 1.5 kilograms or any matter of that

order, the trial judge took as a benchmark or

starting point the sentence passed on that original

co-accused, without any such deduction. Applying a

concept of, as it were, parity on the basis that

they were all involved in the same transaction, and
possession and importation have the same maximum

under section 235 of the Customs Act, what one

could do was look at culpability and offset various

matters.

For instance, one could offset against the

accused's plea in this case, which would normally

give him a pragmatic deduction from sentence,

various other matters, and one could offset to

support a sentence, in effect, tied to Montenegro's

sentence, other considerations which might have

mitigated, because of a prior conviction for a New

South Wales offence of supplying drugs.

TOOHEY J:  I am still not clear about section 16A. Are you

saying that the sentence may not be susceptible of

challenge in the absence of section 16A, but that

that provision somehow makes it susceptible of

challenge?

MR JAMES:  No, perhaps I am not going that far, Your Honour.

What the court purported to do in the Court of

Criminal Appeal is to examine the sentence and see

if it was of the severity appropriate in all the

circumstances of the offence and if the person was

adequately punished. But in the process of doing

so, the application of the section, in our

submission, was attended by entirely wrong

principle as to what is parity, what is the crime

charged?

DAWSON J:  What are you saying, that because of Montenegro's

sentence in relation to 1.5 kilograms, it was not
appropriate to take his sentence as a starting

point in the case of this particular - - -

Laurentiu 8/10/93

MR JAMES: Well, it was not only taken into account as a

starting point, Your Honour; it was taken into

account in effect as a matter of parity.

DAWSON J:  And you say it was wrong because 1.5 kilograms is

not 50 grams?

MR JAMES:	Not only that, but Montenegro was the importer; the present applicant was merely a possessor of a
quantity inside the jurisdiction.
DAWSON J:	He was a first-time small fry with a commission

of 2500, whereas this man was said to be not very

many rungs down the ladder from the top.

MR JAMES:  His Honour was unable to find that he was not

very many more rungs down the ladder from the top.

Your Honour, the whole process, when one looks at

that, shows why it is entirely artificial to tie

his considerations to Montenegro's subjectives and

to leave him with a sentence which at the end of

the day not only produced the dissent of

Mr Justice Kirby, for the reasons set out

specifically at page 46 of the appeal book, but the

real disquiet of Mr Justice Wood, delivering the

judgment for the majority, who looked at matters
which justified the sentence being apparently

otherwise outside the range, and they turned out to

be, in effect, matters of aggravation. The prior

conviction and the telling of lies at Mr Becheru's

trial - - -

MASON CJ:  Mr James, can I just interrupt you for a moment

to pay you the compliment of saying that what you have said so far might sound all very well before

the sentencing judge and before the

Court of Criminal Appeal, but what has it got to do

with this Court on a special leave application,

where we are concerned with questions of

fundamental principle? All you have said so far

indicates that there may be a case for saying that

there was an erroneous exercise of discretion by

the Court of Criminal Appeal, but that does not

attract the jurisdiction of this Court.

MR JAMES:  I hope, Your Honour, I have gone somewhat further in saying that there was - - -

MASON CJ: Well, you have not managed to get further as far

as my understanding is concerned.

MR JAMES:  - - - in that there has been a wrongful

application and appreciation of principle; that
principle being the principle this Court enunciated
in Lowe, of parity. What has been done under guise

of parity is to tie this man's sentence fate to

Montenegro's sentence fate on a quasi parity basis,

Laurentiu 8/10/93

but not to discriminate on a disparity basis in his

favour.

MASON CJ: But there is no doubt that the Court of

Criminal Appeal had parity in mind.

MR JAMES: Well, it depends, Your Honour, what one means by

parity. Mr Justice Kirby appears to have had a

different concept of parity to that which

Mr Justice Wood - - -

MASON CJ: But the majority had parity in mind . What you

are doing is pointing to various	facts in this case
which indicate that they did not	succeed in giving
effect to the notion of parity.	But it seems to me
you cannot say from the judgment	that they ignored
the principle of parity.

MR JAMES:	No, Your Honour, what I am saying is that that principle was, in one way, distorted; that is to
say, tying this man to Montenegro was a wrongful
exercise of parity when one looked at the circumstances, yet that is what pulls his sentence
up, and that was done apparently as though there
was a principle, the principle - which is a wrong
principle, in our submission - being if you are
involved in a transaction, then all the features of
that transaction should be taken into account in
relation to your culpability, even if you are
charged only with, for example, possession, and
that your culpability can be inflated by what is really an artificial calculation, that being the
sentence that would have been passed on a person
except for the discount involved in co-operation
and subjectives.

Your Honours, in our submission, that is a

wrong exercise of principle, and it so affects the
way in which Lowe is to be regarded in the courts

of Australia, that the true application of parity

is distorted. Similarly, it is our submission that

to take into account such things as lies at a co-

accused's case, and various other matters, as
aggravation in order to support the tying of the

sentence arithmetically that way - - -

MASON CJ: Well, it was not taken into account as

aggravation; it was taken into account as a

counterweight, was it not?

MR JAMES:  The trial judge put it that it countered the

deduction that the accused would otherwise receive

for his plea; the pragmatic deduction of saving

costs. The Court of Criminal Appeal, or at least

Mr Justice Wood -

Laurentiu	8/10/93
MASON CJ:	You are not suggesting are that section 16(2) is

comprehensive and exclusive in terms of the matters

that can be taken into account?

MR JAMES:	No, Your Honour.
MASON CJ:	No.

MR JAMES: Section 16(1) may well be.

MASON CJ: Well, section 16(1) enunciates a guiding

principle.

MR JAMES:  Yes, but whilst I am not suggesting that

section 16(2) is comprehensive in the matters which

one takes into account, 16(2)(k) is not just one

sided; that is to say, ensure the sentence is

sufficiently high. It is also incumbent, by reason

of the language, to ensure the sentence is also

sufficiently low, and no one appears to have any

regard to that and the application of it here, and

indeed, what I urge in that sense is novel as a

construction of section 16A, and that of itself,

bearing in mind the newness of the section and the

consequences that have happened in this case, would

make it a special leave point, in our submission.

It is a construction of a statute of general public

importance which has had particular impact on this

applicant.

Your Honours, the way in which it has had that

impact is set out in the criteria that we refer to
in our summary of argument at pages 93 to 95, and
there is nothing, in our submission, in Radenkovic

that in any way strikes against the argument we put

here as this being a special leave matter. Indeed,

it was pointed out in Radenkovic that this Court

will not grant special leave merely on an argument

that the sentence is excessive, but will grant

special leave in the administration of justice in

an individual case if the sentence is tainted in

principle, for whatever reason.

Now, in our submission, this sentence is

tainted in principle and in the result, and we

would not only pray in aid the general
administration of justice, but also the application

of the section in this individual case. Unless I

can be of any further assistance to the Court, that

is the basis of our application for special leave.

MASON CJ:  The Court need not trouble you, Mr Buddin.

Laurentiu 6 8/10/93

The Court is not persuaded that there was any

error of principle on the part of the Court of

Criminal Appeal, and for that reason the

application for special leave is refused.

AT 9.47 AM THE MATTER WAS ADJOURNED SINE DIE

Laurentiu 8/10/93