Loader v The Queen & Anor

[2012] HCATrans 355

[2012] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M43 of 2012

B e t w e e n -

IAN PAUL LOADER

Applicant

and

THE QUEEN

First Respondent

SECRETARY TO THE DEPARTMENT OF JUSTICE

Second Respondent

Office of the Registry
  Melbourne  No M44 of 2012

B e t w e e n -

IAN PAUL LOADER

Applicant

and

THE QUEEN

First Respondent

SECRETARY TO THE DEPARTMENT OF JUSTICE

Second Respondent

Applications for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 1.23 PM

Copyright in the High Court of Australia

____________________

MR M.J. CROUCHER, SC:   May it please the Court, I appear with my learned friend, MS H.V. SPOWART, on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR B.L. SONNET:   If the Court pleases, I appear on behalf of the first respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in this matter of behalf of the second respondent, the Secretary to the Department of Justice.  (instructed by Russell Kennedy Pty Ltd)

HEYDON J:   Yes, Mr Croucher.

MR CROUCHER:   If your Honours please.  Whilst, as it has been pointed out in the submissions of our learned friends, the elements of the Monitoring Act offences were not wholly included in the elements of the substantive offences of indecent assault, the elements of the substantive offences of indecent assault were wholly included, but within the elements of the Monitoring Act offences.

The steps in that reasoning are these.  First, section 40 of the Monitoring Act when read with the mandatory conditions of such an order, an extended supervision order or the like in section 15(1) and subsection (2)(a), provide effectively that a person subject to an extended supervision order – which I might call an ESO if I may, or an interim ESO – must not commit a “relevant offence”.  By item 6 of Schedule 1, and in section 3 of the Act, a relevant offence is an indecent assault.  Here, the indecent assaults that were alleged in a substantive offence were also pleaded respectively as the particulars for the two Monitoring Act offences, and that is spelt out in the second respondent’s submissions at page 134 of the application book.

Accordingly, the acts and the elements that gave rise to the Monitoring Act offences included within them the substantive offences of indecent assault in this case.  In Pearce, which is at tab 9 of the bundle of materials, in the joint judgment of Justices McHugh, Hayne and Callinan at paragraph 18 of their Honours’ joint judgment, this Court accepted that:

the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.

In this case, you will see from the application book at page 12 that whilst the plea to the Monitoring Act offences came after the plea to the substantive offences – it was all at the same time, really, it was just that he was arraigned on the indictment and he was arraigned, if that is the right way of putting it, on those offences as well.

In our respectful submission, the trial judge should not have allowed pleas to both the Monitoring Act offences and the indecent assaults to occur in those circumstances, or at the very least, she should not have imposed punishment on both.  So dealing just with the conviction application for the moment, we say that the Court of Appeal’s error is to be found at application book page 77, paragraphs 29 to 30, where Justice Nettle, who spoke for the court on this issue, said this, his Honour there dealing with section – I am sorry, I have got the wrong page.  It is not page 77, it is – sorry, page 77, paragraphs 29 to 30.  His Honour says this:

In my view, the argument is misplaced.  The short answer to it is that the offences alleged in Charges SO1 and SO2 included elements in addition to the elements of the offences comprised in Counts 1, 2 and 4 to 9 –

Counts 1, 2 and 4 to 9 are substantive, indecent assaults.  Charges SO1 and SO2 are the Monitoring Act offences –

There is no injustice in charging or convicting an offender of more than one offence committed in the course of the one episode of criminal behaviour if each offence is comprised of or includes different elements.  As the Court said in Pearce v The Queen:

To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.

Then his Honour goes on –

Of course, as was also made clear in Pearce, to the extent that two or more offences are comprised of the same criminal behaviour, a sentencing judge must take care to modify the sentences imposed for each offence in order to avoid the offender being punished more than once for the same conduct.  But that is a matter of sentencing.  There is no double punishment in the fact of entering a conviction on each offence.

With respect, Pearce was different.  Pearce was, if you think of it in terms of being Venn diagrams, a case where there was an overlapping criminality for two offences – a common element between the two, but neither offence was wholly included within the other.  Whereas here the indecent assault, because of the way it has been charged, are wholly included within the Monitoring Act offences.  That is the first point to make, and of course, in Pearce, the complaint insofar as there was double prosecution ought there should have been a stay failed because of that fact.  The court then moved on to consider double punishment in its perhaps purest sense, its sentencing sense, the sense in which Justice Nettle refers to there at the foot of paragraph 30.  That is the first thing.

The second thing is that, in our submission, the convictions are not saved by section 51(1) of the Interpretation of Legislation Act, which is set out at tab 15, your Honours.  Section 51(1) provides this:

Where an act or omission –

and I interpolate, so not an offence, but an act or omission –

constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

Here, in our submission, the applicant was punished more than once for the same acts.  First, the mere recording the conviction is a form of punishment, and convictions were recorded on both sets of offences in this case.  In Sessions’ Case, which is behind tab 8 of the materials, in the judgment of Justice Hayne – when sitting in the Court of Appeal, of course – this is said at the foot of page 312 over to the top of 313.  His Honour says:

Whether convictions should have been recorded on both counts is affected, in this case, by a number of considerations.

First, if the basic principle is that a single act or omission should not give rise to multiple punishments, convictions should not be recorded on both counts. (For present purposes it matters not whether that principle is founded in the common law or in the provisions of s. 51 of the Interpretation of Legislation Act.) The Sentencing Act –

That is the Victorian Sentencing Act, and it is the same Act here –

makes plain in s. 7 and elsewhere that recording a conviction after plea or verdict of guilty is part of the punishment meted out to an offender.  It is not right to say (as may be suggested by Friedland) that conviction for more than one offence is not double punishment and will present no difficulty for the offender if those who may later have to consider the prior criminal history of that offender are properly instructed in the significance that is to be attached to the fact of multiple convictions based upon a single act.  The fact of conviction is treated by the Sentencing Act as an element of the offender’s punishment.

So that is the first respect in which there is punishment.  Secondly, and perhaps more importantly, prison sentences were in fact imposed, both by the trial judge and then by the Court of Appeal, on the Monitoring Act offences and both sets of offences, the substantive ones as well.  Thirdly and further still, partial accumulation of the sentences on the Monitoring Act offences was directed upon the sentences for the substantive offences.  So there is clearly a doubling up, in our submission.

Now, moving to sentence, and these things do align sometimes in the authorities when you look at cases on double punishment including Audino which is one of the cases that is referred to by his Honour Justice Nettle in the judgment.  Sometimes double punishment seems to give rise to setting aside of a conviction and sentence, sometimes it is just a re-sentencing exercise.  Bearing that quirk or difficulty in mind, we say this about sentence.  Even if section 51 of the Interpretation of Legislation Act or some other principle can save the convictions, our submission is that there was still no room left to impose any additional sentence on the Monitoring Act breach offences, or, if there were any such room, there was still no room to impose any accumulation of the sentences upon those offences upon the sentences for the indecent assaults.  Why?

BELL J:   Why does that follow, given the different element in the Monitoring Act offence involving as it does the failure to comply with the conditions of the order?

MR CROUCHER:   This reason, your Honour.  Both the trial judge and the Court of Appeal had already taken into account in sentencing on the indecent assaults the aggravated factor that they were committed in breach of the orders, and that had affected the penalty obviously enough.  So, so much is apparent from her Honour the trial judge’s reasons – which I will not take your Honours to but just for reference is at page 19 of the application book at paragraph 26 and also at page 24, paragraph 55 to 56.  But more importantly, it is clear that the Court of Appeal did so when they undertook the re-sentencing exercise.

It is apparent for three reasons.  First, the individual sentences and orders for accumulation imposed by the trial judge on the substantive offences of indecent assault were left completely undisturbed by the Court of Appeal.  Secondly, whilst the individual sentences for the Monitoring Act offences were reduced because of the error as to jurisdictional limits upon those penalties if it be imposed, the Court of Appeal still directed partial accumulation of those sentences upon the sentences for the substantive offences, and as it happens results in four months additional gaol time, to the total sentence that is.

Thirdly, and this is where the reasons of the court are important, at page 85 of the application book, after referring to the applicant’s argument on Audino’s Case, at paragraph 53 and 54, his Honour says this:

This case is different.  In Audino, there was a complete overlap between the offence of driving with excessive blood alcohol concentration and the offence of culpable driving.  So, it was held that it was double punishment to impose any penalty on more than one of the offences.  But, in this case, there is only partial overlap between the offences the subject of Charges 1, 2 and 4 to 9 and Charges SO1 and SO2.

Certainly, to the extent of the overlap, the sentences imposed on the offences of failing to comply with conditions of the IESO and the ESO must be moderated in accordance with Pearce.  But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court.  That warrants additional punishment.

Now, just going back and making two points.  First, it is apparent that when his Honour is doing, if I can call it the Audino analysis, his Honour again has failed to recognise the difference that this is a case, like Audino, where one offence or series of offences is wholly included within the others, not a Pearce situation where there is partial overlap.  That is the first point.  The second point is that in that last paragraph that I read from at paragraph 54 where his Honour says:

But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court.  That warrants additional punishment.

Well, that added criminality about which his Honour speaks was taken into account as an aggravating factor in sentencing on the substantive offences.  That this was done is clear when one goes over the page to 86 and paragraphs 57 to 58, where his Honour says this at 57:

In practical terms, it would have made no more sense for the judge to leave out of account that the applicant was subject to an IESO or ESO at the time of committing the substantive sexual offences than it would have been for the court in Audino to leave out of account, as a circumstance of aggravation of the offence of culpable driving there in issue, that the offender was palpably drunk at the time of its commission.

As has been noted, the applicant was not to be punished twice for the same wrongdoing.  To the extent that there was an overlap between the substantive offences and the offences of breaching the IESO and ESO, the individual sentences needed to be modified in accordance with the precepts explained in Pearce.  But that does not mean it was an error for the sentencing judge to take all the circumstances of each offence into account in assessing the nature and gravity of the offence.

So, in our submission, it is plain from his Honour’s reasons that there is an aggravation, or either in the court’s own re-sentencing or in allowing the sentences to stand that were imposed upon the applicant on the substantive offences by the trial judge, that there is an element referable to the aggravating factor of committing these offences in breach of the supervision orders.

HEYDON J:   I have just got a problem with this.  I am not sure it is entirely right to say here is an indecent assault that has got integers 1 to 3 in it, and there is this other offence which has got 1, 2, 3 and 4.  On one we shall only sentence you for 1 to 3 and the other we shall only sentence you to 4 in relation to integer 4.  Indecent assault is a sort of crime which, in the eyes of some people wrongly, it is not really perceived to be a crime, it can sometimes not be a very serious crime, sometimes it can be an extremely serious crime.  The character of the acts which result in a conviction for indecent assault can be radically modified because it happens to be in breach of the condition of the court order.  They have a different nature.  Is that not what Justice Nettle is talking about in paragraph 58?

MR CROUCHER:   Well, in my submission, what his Honour is talking about he is saying that you are entitled to, and it was proper to, aggravate – the offending is aggravated by the fact that it is committed in breach of the order.  That is something that has been taken into account in sentencing upon the indecent assault.  So, our submission is that that is the way in which his Honour is sentencing or re-sentencing and/or considering what her Honour the trial judge has done.

BELL J:   Is his Honour not doing any more than this?  Observing that in sentencing for the indecent assault, the sentencing judge must take into account the surrounding circumstances.  To a sentence a person who has never been convicted of an offence for what might seem a relatively mild indecent assault may attract a particular sentence.  The same conduct in circumstances in which it is the thirtieth conviction and a person is on bail, for example, for another such offence is a matter that forms part of the circumstances that affect the arrival at the correct result in terms of the sentence for that offence. 

When one comes to the monitoring offence, there is the consideration of the criminality involved in the breach of a court order, albeit by, in this instance, the conduct that is the subject of the indecent assault offences, but it is qualitatively quite different to the indecent assault.  What his Honour is pointing out is that in sentencing for the latter offence, assuming it follows on the sentencing for the indecent assault, one takes into account the need not to doubly punish for the fact of the indecent assault.  But that does not mean that a sentence of some severity might not be imposed for the fact of being in breach of the court order, and that measure, in terms of the sentence, would not be appropriate to reflect when sentencing for the indecent assault as a circumstances of aggravation, if you see what I mean.

MR CROUCHER:   Well, with respect, we say that is a distinction without a difference.  We say that what his Honour was doing and what his Honour was endorsing of the trial judge was sentencing on the substantive offences, taking into account the aggravating factor of committing this in breach of an order, to put it in short terms, and all that goes with it.  Having done that, there is nothing left of the criminality in breaching the order because what is the difference between having aggravated a sentence for indecent assault by reason of committing it in breach of an order and then turning to the breach of the order and saying, now I am going to punish you for that as well.

BELL J:   The difference is you are not punishing for the breach of the order in taking it into account as a circumstance of aggravation.

MR CROUCHER:   But, in our submission, there cannot be any meaningful difference, and certainly, if we are wrong about that, it cannot lead to accumulation in a case like this, when you have already aggravated the sentence for the indecent assault offence.  I see the time is up, your Honours, and those are our submissions.

HEYDON J:   Thank you very much, Mr Croucher.  We will not trouble you, Mr Sonnet.  We need not trouble you either, Mr Holdenson.

We are of opinion that special leave to appeal must be refused because no error has been demonstrated in the reasoning of the Court of Appeal.

Please adjourn the Court until 3.30 pm on Monday, 4 February 2013 in Canberra.

AT 1.44 PM THE MATTER WAS CONCLUDED