Malkoun v The Queen; Malkoun v The Queen

[1991] HCATrans 236

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS of 1991

B e t w e e n -

AMAD MALKOUN

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M7 of 1991

B e t w e e n -

ELIE MALKOUN

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

Malkoun 1 30/8/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 1991, AT 11.15 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:  May it please the Court, I appear

with my learned friend, MR J.R. CHAMPION, for the

applicant in this matter.	(instructed by Bruno
Kiernan & Associates)

DAWSON J: Yes, Mr Bellanto. These two matters are being

heard together, are they?

MR BELLANTO:	I believe so, Your Honour, yes.
MR B.D. BONGIORNO, QC:	I appear with my learned friend,

MR T. GYORFFY, for the Crown in both matters, Your

Honour. (instructed by Mr J.M. Buckley, Solicitor

for the Director of Public Prosecutions)

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MRS.A. SHIRREFS,	for the applicant
in the second of the two matters.	(instructed by
Melasecca & Zayler)

DAWSON J: Yes, Mr Bellanto.

MR BELLANTO:  May it please the Court. In this matter it is

submitted that there has been a serious or gross

breach of the sentencing discretion, producing an

error and injustice to the applicant, and two

points of importance are raised in the application.

Firstly, where a minimum term is 88 per cent of the

head sentence, it cannot effectively provide for

mitigation of punishment in favour of

rehabilitation through conditional freedom.

The second point is this: that there is a

necessity for the sentencing judge and the Full

Court to refer to the relevant considerations which

bear on the minimum term, because these are the

only indicators that the appellant, the community

and an appellate court has, of the matters which

played a part in the exercise of the judicial

discretion on sentence.

Malkoun 30/8/91

The Full Court, in the reasons for judgment at

page 50 of the appeal book, addressed the question

which was the ninth ground of the appeal in a few

lines, in these terms:

There is no substance in these grounds. The

fixing of a minimum term is a matter for the

discretion of the sentencing judge and it will rarely be possible to demonstrate error in the

minimum term where no error can be found in

the head sentence.

And the court referred then to the argument for the co-appellant and referred to the fact that it was for this reason that the co-appellant based the

argument on this ground on the ground that the

sentence was manifestly excessive and, of course,

that goes to the head sentence and not the minimum

term.

TOOHEY J:	Mr Bellanto, is this Court concerned with the challenge both to the head term and the minimum
term?

MR BELLANTO:  No, Your Honour. We say that the challenge

goes to the ratio between the head term and the

minimum term as being, in effect, nugatory, and not

allowing for the purpose for which a minimum term

is fixed, that is -

TOOHEY J: Yes, I understand that. It was just that the

draft notice of appeal - perhaps I am confusing one

with the other, am I? The draft notice of appeal,

or one of them, asked that the sentence imposed be

quashed.

MR BELLANTO: That is the co-appellant.

TOOHEY J: That is the co-appellant, is it?

MR BELLANTO:  So, in effect, what the Full Court has done,

we submit, is to look at the head sentence and, on

the basis that there is no error in the head

sentence, therefore found there was no error in the

minimum term.

DAWSON J:  Was the sentencing judge bound to fix a minimum

term in this case?

MR BELLANTO:  No. Well, unless there were special

circumstances as to why he should not, but having

so decided, he was then bound to fix one in

accordance with the legislation and principles, and we say that this Court should indicate that in this

type of case a sentencing judge should express

reasons and indicate the factors or the indicators

that give rise to the minimum term. That was not

Malkoun 30/8/91

done in this case, and it is a variance from what

is adopted in New South Wales, for example, where

the recent authority of Lian indicated that a

sentencing judge should fix reasons because, as I

said, it is the only way that the appellant, the community, and the appellate court can ascertain the basis on which the minimum term was fixed.

DAWSON J: Well, we do not know what the sentencing judge

said, do we?

MR BELLANTO:  We have the reasons, Your Honour, which I hand

up.

TOOHEY J: Mr Bellanto, could I make sure that I am not

confused about this? The draft notice of appeal at pages 15 to 16 appears to be the notice relating to your client.

MR BELLANTO:	Yes, Your Honour.
TOOHEY J:	And it seeks an order that the order of the Court

of Criminal Appeal be quashed and a lower sentence

be imposed on the applicant. Now, is that lower

sentence meant to read a lower minimum term?

MR BELLANTO:  Yes, Your Honour. I am sorry, I misunderstood

Your Honour earlier.

TOOHEY J: Yes, thank you.

MR BELLANTO:  Your Honours, the sentencing judge on the

first page, at page 241, referred briefly to the

fact that Amad Malkoun was single and 26 years of

age and was a property developer, and then referred

to the facts of the case and came back to the

question of personal considerations on page 246

point 9 where he said:

I have taken into account all of the matters

upon which you have relied and which I am

entitled to take into account, and given to

them and to all the other circumstances of the

case such weight as I think they deserve.

Now, that is all that was said, and it may

well be suggested, and the appellant could be
forgiven for taking the view, that those matters

related to the head sentence and not specifically

to the minimum term. And this Court, in Bugmy,

recently has indicated that different

considerations apply and different weight is to be

attached to those considerations, particularly when

one is looking at the minimum term and the head

sentence. But from what the learned sentencing

judge said, it is not clear what factors were taken

into account in fixing the minimum term.

Malkoun 4 30/8/91

DAWSON J: It is clear that he regarded this as a

particularly serious offence. In fact, he regarded

it as one which might well merit the maximum term.

He pointed out that had the matter gone for trial, the applicant would have been presented on a count of trafficking in a commercial quantity during a

period of over three years and, on that charge, it

would obviously have constituted a most serious

example of that crime.	So that he took a very
serious view of it.

MR BELLANTO:	He did.
DAWSON J:	And in allowing a difference between the minimum

term and the sentence of two years he reflected the

view which he took of the crime.

MR BELLANTO:  Well, Your Honour, that may well be. However,

it does not appear in the reasons for sentence that

that was the way he approached it.

DAWSON J:	What do you say he ought to have said?
MR BELLANTO:	We say that the sentencing judge should have

indicated what factors were relevant to the fixing

of the minimum term, and it is only by giving

reasons in relation to the fixing of the minimum

term and the head sentence, but particularly the

minimum term, that one can ascertain, particularly

the appellant - - -

DAWSON J:	What sort of reasons?
MR BELLANTO:	The sort of reasons would be the fact that

rehabilitation is not a major consideration, or he

is not allowing sufficient weight to personal

factors relevant to the applicant; matters of that

kind.

DAWSON J: Well, he made it quite plain that he regarded it

as a most serious offence, and that would indicate

he did not regard it a suitable case in which there

should be very much mitigation of the sentence in

favour of rehabilitation. That appears as a

necessary inference from what he said.

MR BELLANTO: Well, Your Honour, the error was compounded,

we submit, by the Full Court, in dismissing the

ground without really giving reasons and, in saying

what it did, that is, that if there is no error in
the head sentence it is very rare that you would
find error in the minimum term. Expressed in that

way it is, we say, not a proper application of the

principles, which clearly are that different

considerations apply, and there may well be no error in the head sentence but an error in the

minimum term.

Malkoun	30/8/91
TOOHEY J:	Mr Bellanto, it appears from some of the other

matters that we have to deal with that there have

been a number of changes in the sentencing laws of

Victoria in the last year or so. So far as the law

appropriate to the sentencing of these applicants

is concerned, are their sentences subject to

remissions?

MR BELLANTO:  Yes, Your Honour.

DAWSON J: Both the sentence and the minimum term?

MR BELLANTO:	Yes.
TOOHEY J:	And of what order?

MR BELLANTO:  A third off the minimum term and an effective one-third off the head sentence. The formula that

I have worked out - and I do not suggest this is

completely accurate - but it would lead to a

minimum term of 10 years and 8 months, and 12 years

on the head sentence. But we say that does not

address the problem in that the ratio between the

minimum term and head sentence, on that

calculation, is narrower than the sentence imposed

by the learned sentencing judge.

TOOHEY J:  So now you say it does not address the problem.

Do you say it is irrelevant?

MR BELLANTO:  No, but it provides a shorter period on parole

- in other words a shorter mitigation of the head

sentence in favour of rehabilitation; and going

back to our first point, rendering nugatory,

really, the purpose behind a minimum term.

TOOHEY J:  I understand that submission. I did not think it

was one that you were making, though. That is in

part what prompted me to ask about the existence of

remissions. In other words, assuming that the

your client would be eligible for parole six years	remissions, they would be eligible for parole, or applicants' conduct was such as to entitle them to
earlier than he is eligible for parole according to
the minimum term. Have I understood it correctly?

MR BELLANTO:	Yes.
TOOHEY J:	And is_ that a factor that you ask us to take into

account or not?

MR BELLANTO:  We say it does not really change the position

because the ratio between the head sentence and the

minimum term on that calculation is narrower than

that imposed by the learned sentencing judge.	And
the same argument can be advanced, we say, in

Malkoun 6 30/8/91

respect of the remission calculation as that fixed

by the learned sentencing judge.

TOOHEY J: But there are dicta in earlier judgments

suggesting that for the minimum term to be

effective it needs to be something less than the

period after which the prisoner may be released

according to the operation of ordinary remissions,

but you do not appear to be relying upon that sort

of approach at all.

MR BELLANTO:	No.
TOOHEY J:	Thank you.
DAWSON J:	Mr Bellanto, you really have to show, do you not,

that the time between the minimum term and the head

sentence is manifestly wrong, manifestly unjust?

MR BELLANTO:  Yes.

DAWSON J:  How do you show that? Why is a period of two

years wrong here?

MR BELLANTO: Well, on a sentence of 18 years, 16 years is

too long. It does not give the prisoner any

prospect of early release for good behaviour. The

matters that this Court addressed in Bugmy as to

why a person should look towards early release, a

gap of two years -

DAWSON J:  I am sorry, I do not understand that. Good

behaviour is a matter which is taken account of by

remissions, is it not?

MR BELLANTO:  Yes.

DAWSON J: Parole has nothing to do with that.

MR BELLANTO:	Yes, but the period between the expiration of the parole period or when the prisoner is released
is still the same in relation to the head sentence.
The ratio is still the same.

DAWSON J: Yes, I can appreciate that. But good behaviour

or lack of good behaviour is taken account of, so

far as incentives are concerned, by remissions, is

it not?

MR BELLANTO:  Yes·.

DAWSON J: Parole is not an incentive to good behaviour.

MR BELLANTO: Well, if one does not behave one does not get

parole, presumably.

Malkoun 7 30/8/91

TOOHEY J:  But you are really talking about different

things, are you not? I mean, remissions are, as it

were, a reward for good behaviour in prison. The

minimum term, it is said, holds out some hope that

if the prisoner shows signs of rehabilitation,

which is not necessarily the same, I suppose, as

good conduct in prison, then the prospect of parole

following a minimum term serves some useful

sentencing purpose.

MR BELLANTO:  We agree, with respect, Your Honour.

TOOHEY J: Well, you might agree with me but you do not

appear to be relying upon it.

MR BELLANTO: Well, we are, and for that reason the question

of rehabilitation is an important consideration

which does not appear to have been addressed by the

sentencing judge, because evidence was called on

the sentence going to that very question.

DAWSON J: It is not for the sentencing judge to assess the

prospects of rehabilitation, is it?

MR BELLANTO: Well, we say it is a factor.

DAWSON J:	I thought that had been expressly denied in the cases, that the sentencing judge was to direct his
mind to that factor. Perhaps you could go to
Power's case.
MR BELLANTO:	The non-parole period is a sentence of

imprisonment, but otherwise one questions why one

has a minimum term and a head sentence.

DAWSON J: Yes, but the prospects of rehabilitation are for

the paroling authority, are they not, not for the

sentencing judge?

MR BELLANTO: Well, with respect, Your Honour, Bugmy seems

to -

DAWSON J: Perhaps you would direct our attention to the

passage?

MR BELLANTO:  The Chief Justice and Mr Justice McHugh, in

the minority judgment, on page 532 point 4:

whereas the minimum term represents a portion
of the head sentence during which the offender
will not be considered for parole. In one
sense, that portion must itself bear a
proportionate relation to the crime.

Generally speaking, the perceived prospects of

rehabilitation will make a significant

difference.

Malkoun 8 30/8/91

McHUGH J: Well, it is the first sentence on that page, is

it, that is the relevant sentence from your point

of view?

MR BELLANTO:  I am sorry, yes, the first sentence. And

then, of course, in the majority judgment, on page 536, at point 8, the Court referred to the case of

Iddon & Crocker and then said:

"The scheme of the legislation is plain

enough. The intention of the legislature is

that a minimum term is a benefit to the

prisoner ... " That benefit lies in providing

the prisoner a basis for hope of earlier

release and in turn an incentive for

rehabilitation.

DAWSON J: Yes, I can understand the incentive but, just

speaking for myself, I find it hard to conceive

that the court is in a position to assess the

prospects of rehabilitation at the time it imposes

sentence. But maybe that is just a matter of

words, that rehabilitation, of course, is a factor,

that is the purpose, if parole is granted, or at

least one of the purposes, of parole. But taking this particular case, His Honour the trial judge, may well have taken the view that, having regard to

the nature of the offence, rehabilitation, either

viewed as an incentive or as a possibility, was not

particularly relevant because he said that this man was engaged in the business of distributing heroin.

He said:

There is not the slightest suggestion that

either of you -

that is either of the accused -

is addicted to, or even a consumer of, heroin. You were in the business simply for the money

that you could make out of it; in other words,

for greed.

Well, that does not mark it out as the sort of case

where rehabilitation looms large, does it?

MR BELLANTO: Perhaps not, Your Honour. However, it is

difficult to know, without His Honour expressing

reasons for doing what he did, and it produces the

situation that we find ourselves in at this

juncture where we do not really know, and the

courts in New South Wales follow the policy of

judges expressing reasons in that manner. Now,

unless that is done, one finds difficulty in

ascertaining - - -

Malkoun 9 30/8/91

DAWSON J: In other words, what you say is, if he had added

the sentence, "In those circumstances, I do not

consider rehabilitation is an important factor", or

"is a relatively unimportant factor", that would

have sufficed.

MR BELLANTO:  Or, "For those reasons I am fixing a lengthy

minimum term" .

DAWSON J: Well, it is not very difficult as a matter of

inference to conclude that these were the reasons

why His Honour did what he did.

MR BELLANTO:  Your Honour, can I take the Court to the New

South Wales case of Lian, and we say this puts the

position the way we submit should be applied in

this particular case. It is a case of Chee Beng

Lian, (1990) 47 A Crim R 444. That was a case

under the Drug Misuse and Trafficking Act and also

the Customs Act, and the appropriate penalty, the

maximum penalty there, was a penalty of life

imprisonment. The penalty imposed by the learned

sentencing judge was 24 years with an 18 year

minimum term, and since the passing of the sentence

and the hearing of the appeal, the truth in

sentencing legislation was passed in New South

Wales, and the Full Court in New South Wales held

the view the sentence was excessive and reduced the sentence and applied a new sentence in terms of the

legislation.

On page 450 of the report the court deducted a

number of principles relevant to the fixing of the

minimum term. Principle number 5 is apposite for

our purposes here. The court said:

Having regard to the large discretions which

are involved and the multitude of

circumstances relevant to the exercise of such

discretions, it is not to be inferred that a

judge has failed to take relevant

or she does not refer to those considerations,

or all of them, in the reasons given on

passing sentence. Yet those reasons represent
the only indication which the prisoner, the

community and an appellate court, has of the

matters which played a part in the exercise of
the judicial discretions on sentence. It is

therefore appropriate to examine them to
ascertain whether, at the least, the chief
relevant considerations appear to have been

taken into account, differentially, in the
exercise of the discretions to fix the head
sentence and the minimum term ..... Especially
in the case of a lengthy sentence, and in the
event of doubt, the omission to refer to a

considerations into account simply because he

Malkoun 10 30/8/91

relevant consideration will warrant an

appellate court's quashing the sentence and

proceeding to re-sentence the prisoner, making

reference for itself to the matters which have
not been specially referred to by the

sentencing judge -

et cetera. Your Honours, we say, with respect,

that that is an approach that was not adopted in

this case.

TOOHEY J:  Can you take us to the way in which the Court of

Criminal Appeal dealt with the minimum term in the

case of your client, Mr Bellanto?

MR BELLANTO:  Yes, Your Honour. It is on page SO, and it is

the passage that I referred the Court to earlier.

TOOHEY J: Is that the entirety of the court's reference to

the minimum term?

MR BELLANTO:	Yes.
TOOHEY J:	Thank you.
MR BELLANTO:	And that, we say, simply just does not address the problem and, in fact, exacerbates the
difficulty.

DAWSON J: But surely that is not a special leave point by

itself. I mean, it may be debatable whether the

trial judge should have gone through the

considerations in Power and Bugmy and so on, and

listed the matter and ticked them off, but you

really have to show that the sentence was

manifestly wrong, do you not, before you can -

MR BELLANTO: With respect, no, Your Honour. That passage

in the judgment of the Full Court is erroneous, we say, with respect, because to say that if the head sentence is right therefore the minimum term must

be right -

DAWSON J:  But they are not saying that. They are saying it

is a matter of the discretion of the sentencing

judge and, if that is true, then it will rarely be

possible to demonstrate error because it is a

matter of discretion.

MR BELLANTO: The-argument we advance is that there are

different considerations.

DAWSON J: But it is not a special leave point to debate

that proposition, is it?

MR BELLANTO: Well, really, our special leave point is that

reasons should be given.

Malkoun 11 30/8/91

DAWSON J: That is the point, is it?

MR BELLANTO:  Yes, that is the point. That is our main

point, that reasons should be given, in accordance

TOOHEY J: Well, would you put it as broadly as that? For

instance, you may have a minimum term which is so

clearly proportionate to the head sentence that it

is probably unnecessary for the judge to give

reasons.

MR BELLANTO: It is obvious in those circumstances.

TOOHEY J: If you are going to formulate it, you probably

have to refine it to some extent, but where the

minimum term is so close to the head sentence as it

is in the present case, then it is incumbent on the

trial judge to give reasons for fixing such a high

minimum term.

MR BELLANTO:  I am obliged to Your Honour. That is the way

we would put it.

TOOHEY J: That just may be a way of approaching it, that is

all.

MR BELLANTO:  Yes, we would respectfully adopt that. that is our point, Your Honour. But

McHUGH J: That point does not seem to have been argued in

the Court of Criminal Appeal. I mean, the New

South Wales Court of Appeal has said that judges
have got to give reasons in some detail. It is not

sufficient just simply to give you a conclusion.

There are cases like Pettit v Dunkley???, and

Sirousmis????? of that nature seems to have been

and other cases in the New South argument

addressed to the Court of Criminal Appeal.

MR BELLANTO:	Not precisely in those terms, but ground 9 in the grounds of appeal argued before the Full Court referred to the question of rehabilitation and the
evidence before the sentencing judge, and those
matters were raised and they were not addressed in the judgment of the Full Court.

McHUGH J: Well, if the trial judge does not give his

reasons in sufficient detail an accused person is

denied his right of review by the Court of Criminal

Appeal because they cannot examine the factors that

the judge took into account. All you have is the

end product, in this case 16 years. But you do not

seem to have addressed any argument along these

lines before the Court of Criminal Appeal, so why

Malkoun 12 30/8/91

should we look at the case in that light at this

stage?

MR BELLANTO: Well, Your Honour, at the end of the section

there is a question of injustice.

McHUGH J: Well, there may be no injustice. Sixteen years

may be sufficient. It has been said in cases not

only in New South Wales but in Victoria, that the

failure to give adequate reasons is itself an error

of law. That point has not been run.

MR BELLANTO: Well, it was raised. It was argued in the

Full Court. These matters were referred to in the Full Court. The fact that the evidence was called

going to the personal background of the applicant,

his work history, his future rehabilitation, his

family - all that material was raised in argument,

and the Full Court was addressed to those facts.

McHUGH J:  It was not made a separate ground of appeal. ninth ground of appeal was: The

That the sentence ..... was excessive on the

basis that the minimum term ..... failed to

sufficiently take into account the Applicant's

prospects of rehabilitation.

That was the ground that was argued.

MR BELLANTO:  Yes, that was the ground. It was not a

specific ground, Your Honour, we agree, with

respect. But the questions were canvassed, I can

indicate to Your Honour, in argument, before the

court. Thank you, Your Honours. They are our

submissions, if the Court pleases.

DAWSON J: Yes, Mr Bellanto. Is it convenient to hear you

now, Mr Merkel?

MR MERKEL:  Could we adopt what my learned friend has put on

the minimum sentence without repeating it.	We wish
to raise a quite different point.	The point that

arises on our application stems from the fact that

recent legislation broadly throughout Australia,

but particularly in New South Wales, Victoria,

South Australia and under the Commonwealth

sentencing legislation, has sought to entitle an
accused to a discount in relation to a plea of
guilty irrespective of the motivation of the

accused in making that plea.

TOOHEY J:  Mr Merkel, could I just clarify with you the matter I clarified with Mr Bellanto. What are we

looking at here - the head term and the minimum

term?

Malkoun	13	30/8/91
MR MERKEL:	Both, Your Honour.	What happened in the present

case, and I will come to it shortly, is that the

point we raised goes to the extent to which the

trial judge ought to have given a discount for the

plea of guilty, irrespective of and in disregard of the motivation for that plea, and that goes both to the head sentence and the minimum sentence; quite

a separate point to the point raised by my learned
friend.

The issue arises in a fairly stark form in the present case because in the present case the trial

judge - and this was confirmed in very strong terms

by the full court - took into account in

ascertaining the discount that should be given by

reason of the plea the fact that the accused was

pleading to lesser charges than those that were

originally framed, the period of trafficking or

alleged trafficking, had been reduced and was not
proceeded against at all on importation charges.

The point that arises, in our submission, is that the legislature has sought to move away from

the common law altogether - - -

DAWSON J:  I am sorry, I do not follow that, Mr Merkel.

What the trial judge says was that - this is at

page 245:

had the matter gone for trial you would have

been presented on a count of trafficking in a

commercial quantity during a period of over

three years.

What did they plead guilty to?

MR MERKEL:  A period of ten months, Your Honour, and then

further down the page, Your Honour - - -

DAWSON J:  And there were charges of importation which were

not proceeded with, is that the position?

MR MERKEL:  They were indictments, Your Honour, that were

never filed. They were not proceeded with and His

Honour refers to that in the middle paragraph, when

His Honour said:

you gained the advantage of having the Crown

not proceed with a charge of conspiracy to

import heroin - - -

DAWSON J:	The middle paragraph on page?
MR MERKEL:	Page 245, Your Honour, the page Your Honour just

had.

DAWSON J:  I see, yes.

Malkoun 14 30/8/91

MR MERKEL:  So that the legislature has directed its

mind - and I will take the Court to the specific

provisions - to provisions which will entitle an

accused to a discount on a plea of guilty and the

factor that will be critically relevant is the fact

of the plea and the stage of the proceedings at

which it occurs.

The legislature, in stipulating those matters,

was seeking to move away from the common law

position which, in effect, denied any discount at

all for a plea of guilty and that was so absolutely

where the plea was out of self-interest such as

would have occurred in the present case where -

DAWSON J:  Was there legislation in place in Victoria at the

time?

MR MERKEL:  Yes, there is legislation in Victoria,

Your Honour, and - - -

DAWSON J:  What does it say?

MR MERKEL:  We have handed up a folder, Your Honour. The

Victorian legislation is under tab 6. It is

section 4 of the Penalties and Sentences Act.	I
should say that has already been changed in an
Act - which is tab 8 - which has been passed and

yet to be proclaimed, but that makes the discount

mandatory.

Section 4 provides that:

in passing sentence -

the court -

may take into account in fixing the sentence

(a) the fact that the person pleaded guilty;

and

(b) the stage in the proceedings at which the

person pleaded guilty or indicated an

intention to plead.

We have at tab 7 set out the

Attorney-General's speech, which makes the

point - and that is at point 8 at page 567, the

second page of tab 7. In introducing that change,

the Attorney-General said, in the second sentence:

The purpose of this provision is to give

effect to a recommendation of the Shorter

Trials Committee. It has hitherto been the common law in Victoria that a court can take

into account a plea of guilty only by way of

Malkoun 15 30/8/91

mitigation of a sentence if the plea of guilty

is accompanied by an indication of contrition

guilty into account whatever the

or remorse on the part of the accused person. plea of

circumstances of the plea of guilty may be.

Since those changes, at tab 8, the

Victorian legislature has brought itself in line with, certainly, New South Wales and the

Commonwealth, by passing the Sentencing Act 1991, and in section 5(2)(e) the requirement is that:

(2) In sentencing an offender a court must

have regard to .....

(e) whether the offender pleaded guilty to the

offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.

That brings Victoria into line with New South

Wales, which is at tab 9. Section 439 requires the court to take into account the fact of the plea and the stage and to accordingly reduce the sentence.

It is also similar to South Australia, which is at

tab 10, section l0(g):

10. A court ..... should have regard to such of the following matters as are relevant and

known to the court .....

(g) if the defendant has pleaded guilty to

the charge of the offence - that fact;

and, finally, the Commonwealth legislation in 1990,

at tab 11, section 16A(2)(g):

(g) if the person has pleaded guilty to the

charge in respect of the offence - that fact.

The Acts and, indeed, common law sentencing

principles will have regard to the quite

separate matter of whether the accused has shown

remorse or contrition and the courts have

traditionally had regard to the reason for a plea

of guilty in ascertaining whether remorse or

contrition exists. What occurred is that in
Victoria - and we have set this out in our cases.

I will not take the Court to the detail of them, but the cases, particularly

Reg v Page and Reg v Gray, which are cases 2 and 3,

made it clear that a plea of guilty unaccompanied

by contrition or remorse will not result in a

discount at all and it was that situation which the

legislature has sought to address in the Victorian

provisions and in the provisions in other States.

Malkoun 16 30/8/91

We have set out in our list of authorities other decisions of Courts of Criminal Appeal in

South Australia and New South Wales which adopted

that common law position. Shannon's case in South

Australia did not give a discount for a plea of

guilty without contrition being demonstrated or

there was one further circumstance where the plea

was to, in effect, save the public purse the

expense of a trial, and there was a public interest

factor.

McHUGH J:  Mr Merkel, you are seeking to elevate this case

into a great question of principle but you have got

to show that by using the words "notwithstanding
that", the trial judge in some way improperly took

into account the fact that you could have been

charged with a higher charge, does it not? That is

what it was all about, what was meant by the words

"notwithstanding that".

MR MERKEL:  Your Honour, that is so, except that the Full

Court and, as I understand it, certainly the way in

which the case has been argued by the Director of

Public Prosecutions have assumed that the trial

judge took into account the charges that were not

proceeded with and the advantages.

Can I take Your Honour to what the Full Court

said at page 49 of the application book. About

eight lines down from the top of the page

Their Honours said that the Perez-Vargas principle was not applied which was, in effect, sentencing

for what you were not charged with.	What
Their Honours said is:

Nothing suggests that the learned judge

imposed a sentence upon the assumption that

the applicants were guilty of other more

serious offences, but His Honour was plainly

entitled, particularly in the circumstances of

this case where he was asked to grant a great

deal of time to enable counsel to discuss the
case before arraignment, to take into account

the fact that the applicants were originally

to be charged with more serious offences.

That matter was clearly relevant to an

evaluation of the reasons for the plea of

guilty, such reasons being relevant for the

purposes of considering what discount should

be·given for that plea.

We would submit, with respect, Your Honour,

that there would have been no occasion and, indeed,

no relevance whatsoever to His Honour's reference

to two very important matters which His Honour

clearly weighed up.

Malkoun 17 30/8/91

McHUGH J:  Was this an extempore judgment of the trial

judges?

MR MERKEL:  I am told not, Your Honour.

McHUGH J: It was a considered judgment, was it?

MR MERKEL:	Yes, Your Honour, so that we say that in the context, particularly where His Honour mentions it
in that short passage at page 245 - twice
His Honour has gone out of his way to indicate that
he has taken into account in determining the
discount the two factors that, we say, demonstrate a very basic principle in respect of these new sentencing provisions. Putting to one side altogether the erosion of the presumption of
innocence that this approach brings with it, it is
bringing within the statutory formula the very kind of considerations which the statute wishes to be
rejected and disregarded.

McHUGH J: But surely the trial judge is entitled to take

into account what is the motivation for the plea of

guilty and if the motivation is to avoid the

prospect that you might be convicted of a more

serious offence, is that not a relevant factor to

take into account?

MR MERKEL: It is relevant, Your Honour, and it has been

regarded as relevant on the question of contrition

and remorse which both the trial judge and the Full

Court dealt with as a separate item. The vice of

what has occurred is, we have now come full circle

and that principles of examining the motive for a plea of guilty which have accepted an examination of the reasons in the context that the Full Court

referred to, to demonstrate absence of contrition

and absence of remorse, find, and should find, no

place at all in respect of this new legislative

proposal to give the benefit of a discount

irrespective of motivation.	They are separate
matters.

McHUGH J: But how do you give section 4 of the Act any

content without reference to an external context?

I mean, it says you are to take into account.	How
do you give that direction some content?	How do
you discount it?

MR MERKEL:  You, Your Honour, have regard to what the

legislature indicated, the fact of the plea and the
stage at which it was made, the stage of the

proceedings.

McHUGH J:  Do you give 50 per cent off, or do you give

20 per cent off, or - - -

Malkoun	18	30/8/91
MR MERKEL:	They are matters of discretion, Your Honour.	We

do not challenge the question of discretion. We

challenge the question of whether the lesser charge

is proceeded with and the charges not proceeded

with at all are a relevant consideration at all.

Our submission is based on the much narrower point

that whilst there may be many factors to be taken

into account, the presumption of innocence and the

legislative move to deny motivation as a relevant factor - as exemplified in the Attorney-General's

second reading speech - demonstrate that it is

wrong in principle to take into account those two

particular aspects, namely that other charges were

not proceeded with at all and the period of

trafficking to which the plea was to be made was

reduced -

DAWSON J: That is unrealistic, Mr Merkel, is it not? There

is no presumption of innocence in relation to your

client in respect of some sort of dealing in drugs

because he pleaded guilty to it and one has got to

attempt to assess the seriousness of the offence

and in doing so one can have regard to these other

circumstances.

MR MERKEL:  Your Honour, we say that that brings into

question the even more fundamental principle and

that was the one that was dealt with in New South

Wales in the first case on the list of authorities,

Reg v Perez-Vargas, (1986) 25 A Crim R 194 and, in

particular, a passage at page 196 - this is the

Court of Criminal Appeal, Chief Justice Street and

Justices Hunt and Allen - and at page 196, where

the sentencing judge had taken into account the

fact that they were not charged with section 233B

Customs Act charges, and what the court said in the

third last paragraph is:

It is contended, validly in my view, that it

was not proper for His Honour to take the

approach indicated in the last sentence that

with an offence in respect of which the	has been quoted. The appellants were charged
maximum is fifteen years and it was for that
offence and no other that they were standing
for sentence. The prospect that other more
serious charges carrying heavier sentences
might have been brought against them was no
more relevant than that other offences
carrying a lower maximum might have been brought against them.
We say that it is fundamental to sentencing

that the trial judge sentenced only in respect to

the charge to which the plea has been made. The

fact that that was reduced and the fact that other

charges were not brought, we would submit, entitles

Malkoun 19 30/8/91

the accused to the presumption of innocence in

respect of those additional matters. That is why

we say that the notion of bringing into the

question of the discount for a plea, the fact that
other charges were not brought, or lesser charges
were the subject of a plea, is quite alien to the

purpose for which the legislature wishes to give

this discount. I accept its relevance on

contrition and remorse because a benefit - - -

McHUGH J: But that is what I have some difficulty in

understanding. If it is relevant to take into

consideration a plea of guilty as indicative of

contrition and remorse, why is it not relevant to

take into account that the plea of guilty has been

motivated by self-interest?

MR MERKEL:  Your Honour, because we say the two issues arise separately. The contrition and remorse is put

forward as part of a plea by an accused and the

court is entitled in determining whether to give a

discount on that ground, a separate ground, to have
regard to the reason for the plea. That is what

the courts have done and if the reason for the plea

appears to be the benefit of not being proceeded

with on other charges, then that may go to negative

contrition and remorse as a factor to give a

discount; not because of the plea but because of the inferred or implied absence of contrition and

remorse.

Both the learned trial judge and the Court of

Criminal Appeal in the present case dealt with contrition and remorse as a separate and discrete

ground and found that it did not carry with it any

benefit of a discount. That was where the common

law stood in respect of taking into account a plea

to lesser charges. The legislature was very

unhappy with that because, with obvious problems

within the criminal justice system of long trials,

it wanted to offer a clear incentive to a plea of

They said it would be wrong under the common law to	guilty which the criminal appeal courts had denied.	hold out the incentive of a lower sentence for a
plea of guilty and, therefore, self-interest was
regarded as not entitling you to a discount.

Thus, section 4 of the Victorian Act, the

Commonwealth and the New South Wales Act, all of

which were introduced for the purpose of entitling

an accused who pleads guilty to a discount by

reason alone of the fact that they had pleaded -

their purpose, the fact that it was

self-motivation or self-interest, was not to be

relevant to those matters, and indeed, one of the

cases on our list of authorities, Reg v Giakas,

which is No 12, is a decision of the Full Court of

Malkoun 20 30/8/91

the Supreme Court of the State of Victoria, under

section 4 accepted that the previous

authorities - that is at page 978 of case No 12 in

the first paragraph, by referring to Reg v Morton

where Their Honours set out the conclusion at line

7 :

The result of this consideration of the

section is that a court may always take a plea

of guilty into account in mitigation of

sentence even though it is solely motivated by

self-interest and even though it is a plea to

lesser offences than those originally charged

or intended to be charged.

Then at line 22 Their Honours said - - -

McHUGH J: Well, you have skipped over the sentence which

confirms what I was putting to you. Their Honours

said:

Doubtless, however, a plea of guilty which is

indicative of remorse or of some other
mitigating quality will ordinarily carry more

weight than a plea dictated solely by self-

interest.

MR MERKEL:  But I accept that, Your Honour. That is the

discrete but separate factor treated as such by the
courts on the presence of contrition or remorse.

In the present case no benefit was given in respect

of contrition and remorse by the sentencing judge

or, in reviewing that by the Full Court, the point

being, Your Honour, that the legislature sought to

treat that as a separate factor altogether.

McHUGH J:  I must say my mind spins these days when I try

and take into account all these statutory
provisions about sentence that are found all over

the country.

DAWSON J:  Mr Merkel, what is it that you say the trial

judge did that was wrong? He said, and one can

accept that, that he was aware that the accused

had:

gained the advantage of having the Crown not

proceed with the charge of conspiracy to
import heroin and having the period of
trafficking reduced, as it has been.

Notwithstanding that, I accept that your plea

of guilty justifies a reasonably substantial

discount off your sentence.

Where is there anything wrong in that?

Malkoun 21 30/8/91

MR MERKEL:  We say, Your Honour, that the only rational

explanation for reference in those passages to the

notion of advantage and benefit is that he has
reduced the discount by reason of those collateral

matters.

DAWSON J: Well, he is saying that there is no contrition or

remorse involved in it, it is self-interest. What

is wrong with that? And, notwithstanding that, I

will give you a discount.

MR MERKEL:  Your Honour, that is the point. He then moves

away from the section 4 aspect, and then in the

next sentence deals quite separately and discretely

with the aspect of contrition and remorse.	He
says:

Other matters were relied on in mitigation,

such as your comparative youth ..... remorse

said to have been shown by each of you, about

which I must say I am somewhat sceptical.

Now, we say that both there and the same in

the Full Court, that the contrition and remorse

ground was dealt with discretely and separately as,

indeed, it should. We say the extent to which this

matter has come full cycle is demonstrated by the

submissions that the Director has put before the

Court on this issue. We started with Gray's case.

We started with legislative intervention and the

Attorney-General saying "We do not want to have the discount denied or affected by self-interest

suggestions". Then, when one goes to page 33, what

the Director is putting, in our submission, is a

return to the common law that the legislature has

specifically disavowed. What is put by the

Director at page 33 in the submissions in paragraph

11 is:

In determining whether or not a discount

should be given for a plea of guilty the

sentencing Judge cannot take into account that

the plea is to lesser charges than were

originally preferred or could have been

brought by the prosecution.

And then in paragraph 12 says:

In determining what weight to give to a

plea of guilty the Judge may take into account

that a lesser charge was proceeded with

because it may indicate that the plea was

entered as a matter of self interest and not

through remorse which would entitle additional

weight to be given to the plea: see Reg v

Gray.

Malkoun 22 30/8/91

We say that there one is mixing up two quite

separate questions:

In such circumstances the Trial Judge may

infer that the "entry of the ''guilty" plea is

then merely a manifestation of an exchange of

an advantage for a disadvantage by both the

accused and the Crown: Reg v Gray.

Now, we would submit that that thinking

and that approach should have no role to play

in statutory provisions such as those we have
taken you to which treat this discount for a

plea of guilty alone as a separate factor to

be measured up and treated as such with

contrition and remorse to be dealt with under a different heading and by reference to quite

different considerations. We say that what

that submission demonstrates is the very

position which was sought to be departed from

by the legislature has now been returned to.

McHUGH J:  I am not sure that is right. I appreciate that

section 4 enables the trial judge to give a

discount, notwithstanding that there is not the

slightest remorse or contrition, but just the bare

fact of a plea of guilty. Why is not the trial

judge entitled to take into account the

circumstances of the plea of guilty?

MR MERKEL:  If Your Honour embraces the circumstance that

includes the fact that lesser charges were not

proceeded with, we say that that is and ought to be

irrelevant to the benefit sought to be given by the

legislature by reason of the fact of the plea.	We
say it mixes two separate questions up.	We say

that there is a vice inherent in even taking into

account such matters as an advantage altogether because it seems to assume guilt. All it does,

really, is give the benefit of avoidance of

jeopardy. It is relevant to contrition and it can

negative a discount for contrition because it is a	plea based on an advantage or self-interest. But
it should not negative and it should not denude or
undermine the benefit sought to be given by
statutory provisions such as section 4. We submit
that is the point and we say that what has happened by reference to what the Full Court has done in the
present case and the weighing up of these considerations by the learned trial judge is to bring it back full circle to the common law
position that the Attorney-General thought he was
departing from in his second reading speech and which, we say, the legislatures of this country thought they were departing from by reference to
the earlier cases of the Courts of Criminal Appeal

Malkoun 23 30/8/91

which approached it entirely on the basis of self-

interest, no discount.

We say that is the point that arises very much

in the present case and we say it is appropriate

for the Court to consider because it does give rise

to a question of sentencing principle which is of

general application. If the Court pleases.

DAWSON J: Yes, Mr Bongiorno.

MR BONGIORNO:	If the Court pleases. To go, firstly, to the matter of Amad Malkoun, Mr Bellanto's client. In
our submission, this matter can be answered perhaps
even more briefly than we did in the written notes of argument which we filed.
DAWSON J:	Was it argued in the Court of Criminal Appeal?
MR BONGIORNO:	The question of the alleged failure of the

trial judge to give reasons was argued in the Court

of Criminal Appeal and it, as I understand it from

my learned junior who was present, was put and

Mr Justice Crockett, in argument, pointed out that

the whole of Judge Howse's judgment sentence, in
fact, contained as it were the reasons for adopting

the course that he did in sentencing the prisoner

and that there was nothing in the point. It was,

as I understand it from my learned junior, desisted

from and was not pushed any further. Certainly,

the Crown does not contend that it was not put in

the Court of Criminal Appeal.

DAWSON J: Yes.

MR BONGIORNO:  Your Honour, the first matter that raises

itself in relation to Amad Malkoun is the general

question of the principles that this Court grant

special leave in sentence cases. On numerous

occasions it has said that it will only do so when

there has been a gross departure of some
fundamental sentencing principle.	We refer the
Court to Reg v White - - -

McHUGH J:  A lot of water has passed under the bridge since

White, Mr Bongiorno.

MR BONGIORNO: It has, Your Honour, but in our submission

the principle has not been - - -

McHUGH J: Its application seems to have been weakened

somewhat.

MR BONGIORNO: In all special leave applications the

application of any principle is fluid but, in our

submission, in this instance when one looks at what

Judge Howse did and what the Court of Criminal

Malkoun 30/8/91

Appeal did, there was no, it would be our

submission, violation of sentencing principle at

all let alone one that raises a point of general

application or a point of principle that would

merit a grant of special leave.

The question of why minimum terms are imposed

has been dealt with in this Court authoritatively

in Power and and adopted the reasoning in Power and

the comments of the Court in Power adopted in many

other cases. Power has been accepted as the

guiding principle in relation to minimum terms in

this State and in other States and there is

nothing, in our submission, that puts this case

outside the principles that were enunciated by the

Court in Power that -

TOOHEY J: Perhaps the crux of that appeal, or this

application, Mr Bongiorno, really is simply where

you have a head sentence of 18 years, with a

minimum term so close and only 16 years, whether it

is incumbent on the trial judge to explain why

there is such a narrow margin and if there is such

a failure does it really matter?

MR BONGIORNO:  Our first submission, in answer to

Your Honour there, would be that there has not been

a failure of the sentencing judge, that when one

reads the whole of his reasons he gives the reasons

for his sentence which include the reasons for his

giving 16 years as a minimum term.

Obviously he could have, I suppose, gone

directly to that particular point and dealt with it

specifically but, as I understand it as

Justice Crockett put in argument in the Court of

Criminal Appeal, it is all there in Judge Howse's

sentence in one way or another, even if it is not

spelt out in precise detail. He has, in seven or eight pages of his judgment, dealt with the whole

of the way in which the sentence was imposed and if

detail. In our submission it is there, so that	the Court wishes me to I can go through that in
there is nothing in the point that reasons were not
given.

Secondly, we say in the alternative, that even

if Judge Howse's judgment could be criticized for

not giving reasons, the question of not giving reasons leading to appellable errors, we would

respectfully adopt what Mr Justice McHugh said,

that that is a well known principle of law not only
in criminal law but, of course, across many areas

of law and it is not a matter that this Court needs

to pronounce upon again if having done so on other

occasions. So that even if there is anything in

the point, it is not a special leave point.

Malkoun 25 30/8/91

The Full Court in its judgment quite

correctly, in our submission, said at page 50 that

the the fixing of the minimum term is a

discretionary matter and all that it was saying

there was that the exercise of a discretion is a

difficult matter to upset on appeal unless there

has been some fundamental error of principle and
the Full Court took the view, one can infer at

least and, indeed, go further, I suppose, if one

accepts the proposition that Mr Justice Crockett

put in argument that there were reasons given by

Judge Howse that they regarded the sentence of

Judge Howse as not falling short of that required by way of reasons so as to fall into appellable

error. In the Full Court, when the court says

there is no substance in these grounds, the fixing

of a minimum term is a matter for the discretion of

the sentencing judge and it would rarely be

possible to demonstrate error in the minimum term

where no error can be found in the head sentence,

is doing no more than stating what, in our

submission, is a perfectly appropriate principle of

law.

McHUGH J:  Mr Bongiorno, one problem I have about what you

said Mr Justice Crockett says, is that the majority

in Bugmy took the view that the trial judge in that

case has been unduly influenced in fixing the

minimum term by considerations which bore only on

the head sentence and there is nothing in this

judgment - that is in the judgment of the trial

judge - to indicate that he saw any difference

between the two sentences.

MR BONGIORNO:  Nothing specifically, Your Honour, other than

that he dealt with both parts of the sentencing

process in the ordinary way. It might, I suppose,

of course with the wisdom of hindsight and

dissecting his judgment in the detail that it is

now dissected, it might have been better if he had

said, "I am imposing 16 years; it is a high

minimum", and directing part of what he, in fact,

said to that particular point but, in our

submission, when one reads the whole of his

judgment, it is clear that he took a very, very

adverse view of both of these prisoners and he

reflected it in the judgment and after all Power

said that the minimum term is to be that term which

the sentencing judge considers is the minimum
sentence that the prisoner is required to serve

before being eligible for parole. That is the

minimum that the judge regards as being

appropriate; as being the condign sentence with the

offence for which the prisoner has been convicted.

TOOHEY J: But the comment Justice McHugh made about the

sentencing judge might also be made with some

Malkoun 26 30/8/91

justification perhaps about the approach taken by

the Court of Criminal Appeal, because the statement

"that the fixing - it will rarely be possible to

demonstrate error in the minimum term where no

error can be found in the head sentence" suggests

that there are not different approaches to be

taken.

MR BONGIORNO: With respect, we would respectfully disagree

with Your Honour. What the Full Court is saying

there, in our submission, is simply that if you

were to successfully appeal a head sentence on the

ground that it was manifestly inadequate or

manifestly excessive, it would follow probably

almost as a matter of course that there would be an

error in the minimum term because it would be

difficult if a Court of Criminal appeal was to say

that 18 years was too long for something and was

going to reduce it to 12 or 14 say, it would follow

almost as a matter of course that whatever minimum

sentence was imposed, even if it was one that was

only something of 50 per cent or thereabouts of the

head sentence, which would be rare, that it would

follow that there would be an error. So that all

the Full Court is saying is that, of course, if you can upset the head sentence you will probably upset the minimum sentence, but the converse - - -

TOOHEY J:  No, they are saying the converse. That is not

what they are saying.	They are saying if you
cannot upset the head	sentence you are not likely
to upset the minimum	term. Is that not what they
are saying?

MR BONGIORNO: Well, if you cannot upset the head sentence,

you -

TOOHEY J: It will rarely be possible to demonstrate error

in the minimum term where no error can be found in

the head sentence.

MR BONGIORNO: Or, conversely where - - -
TOOHEY J: Well, no, that is not the way it is put.	I mean,

it follows, of course, that if you can demonstrate

that the head sentence is excessive then obviously
the minimum term is going to come down, but that is

not the situation we are looking at here; we are

looking at a situation in which it is said that,

even if the head sentence cannot be shown to have

been excessive, the minimum term was excessive.

MR BONGIORNO: That is the applicant's case, yes.

TOOHEY J: Yes, that is right, and underlying the

applicant's submission is the notion that perhaps

different considerations have to be brought to bear

Malkoun 27 30/8/91

on the minimum term to those brought to bear on the

head sentence.

MR BONGIORNO: 

Yes, well that is Bugmy; that is not a matter

in contention as to why there is a minimum term,
but in our submission the Full Court is not saying

anything other there than that when a sentencing

judge exercises a judicial discretion to fix the

minimum term it will be rare that you can find

error, in the same way as a Full Court will say it

is rare that you can find error in the exercise of

any other judicial discretion, unless there is

something which points to the taking into account

of irrelevant considerations or failing to take

into account relevant considerations.

TOOHEY J: 

I suppose it is not possible, Mr Bongiorno, to

say of sentencing in Victoria that ordinarily there

is a particular relation between head sentence and

minimum term.

MR BONGIORNO: Certainly not in percentages, Your Honour,

no. They vary quite considerably and I notice

Mr Bellanto put this as being 88 per cent of the

maximum term. I do not know whether that, as I

stand here, I am not able to assist the Court as to

whether that is the highest it has ever been.

TOOHEY J: Well, it could not be much higher, I suppose,

otherwise it would run straight into the head

sentence.

MR BONGIORNO:  Yes, into the head sentence and it is clear

that there ought to be, obviously, that if there is

going to be a minimum term - the court does not

have to fix the minimum term in some circumstances

if it considers the antecedents et cetera of the
prisoner do not warrant it it can refuse to set a

minimum term, but having, as it were, formed the view that it ought to fix the minimum term, well

then, it has to apply its discretion - the

sentencer has to apply his or her discretion - to

that particular question and fix it.

In our submission, that is what has happened

here and the Full Court have said no more and no

less; it is only when it is, as it were, blown up

into what is said to be a special leave point, that

it becomes exempt.

DAWSON J: Well, you said that the trial judge set out all

the circumstances which would bear on the exercise

of his discretion in these - - -

MR BONGIORNO: Yes, in his judgment.

Malkoun 28 30/8/91

DAWSON J:  - - - and the most that can be said is that he

failed to link them by saying "It is for these

reasons that I fix a rather higher minimum term

than I would otherwise have done".

MR BONGIORNO:  Yes. Your Honours, in answer to

Mr Justice Toohey, section 17 of the Penalties and

Sentences Act simply requires as a legislative requirement that the minimum term be six months

less than the head sentence - not less than six

months; a lesser term that is at least six months less. In other words, there has to be six months

between the - - -

TOOHEY J:  And does that formula apply irrespective of the

term of the sentence?

MR BONGIORNO: Irrespective of - yes.

where any person is convicted by a court of

any offence and is sentenced to be imprisoned

then, if the term imposed is not less than two
years the court must, and if the term imposed

is less than two years but not less than

twelve months the court may ..... fix a lesser
term .... that is at least six months less than

the -

head sentence. In this case it would have to be

six months; the two years thing does not apply of

course. There are subsections further on that give

the court the right not to fix a minimum term in

certain circumstances, which do not apply here.

There is nothing further that I can say about the

application of Amad Malkoun. In our submission the

basis for special leave has not been made out.

DAWSON J: Yes, and what do you say about it?

MR BONGIORNO:  So far as the other applicant is concerned,

the question here that Mr Merkel raises, in our

submission misses the point. What he is saying is

that once section 4 of the Penalties and Sentences

Act came into effect - that is the section which

gave the discount for a plea of guilty - the

considerations which might have moved a court to

leniency based upon a plea of guilty in the past no longer applied to explain that plea of guilty. Now

that is just not the law, in our submission. It is

not the law as applied in Victoria and it would be

an absurdity, in our submission, if it was.

The situation and the way in which our

argument is developed in writing is to point out that the common law position, prior to section

4, was that in some States a plea of guilty,

irrespective of motive, was regarded as a

Malkoun 29 30/8/91

mitigating factor. In Victoria in Gray's case, a

plea of guilty, provided it demonstrated remorse,

was seen to be a mitigating factor. It was

probable, it would seem on looking at the

authorities, that the States were converging into a

situation where the common law would ultimately

have said that a plea of guilty, without more, was

a mitigating factor. The legislature in Victoria

stepped in, enacted section 4 - initially enacted

it to make a plea of guilty, per se, a mitigating

factor; subsequently amended section 4 to make a

plea of guilty and the time at which it was made a
mitigating factor, thereby removing the necessity

for anything other than the plea of guilty to

create one mitigating factor. But in determining

the effect which a plea of guilty must have or

ought to have on any particular sentencing task

that the sentencer is facing, in our submission, he

or she is entitled to look at the circumstances in

which the plea of guilty was offered and in this

case Judge Howse has, at page 245, set out in quite

succinct terms the basis of the plea of guilty:

What circumstances of extenuation or

mitigation are there? First of all, there is

your plea of guilty. I recognize that,

whatever the motive was inducing your plea, by
so doing you have saved the community the
expense and inconvenience of a long and very

expensive trial estimated to last somewhere

between three and five months, possibly

longer.

I am aware, of course, that you gained

the advantage of having the Crown not proceed

with a charge of conspiracy to import heroin

and having the period of trafficking reduced,

as it has been. Notwithstanding that, I

accept that your plea of guilty justifies a
reasonably substantial discount off your

sentence.

What Judge Howse is saying there is that, "You

gained the benefit of not being in jeopardy of a

charge of importing heroin or being exposed to the

possibility of conviction either for that or of the

charge of trafficking over a longer period and you

have pleaded guilty, partly at least, and thereby

removed that jeopardy from yourself". That is a

far cry from saying that there is any suggestion

that the presumption of innocence is eroded by

this; it is not. It clearly is not and, in our

submission, there is nothing at all in the

submission made by Mr Merkel that -

DAWSON J:  We need not trouble you any further on that,

thank you Mr Bongiorno.

Malkoun 30 30/8/91

MR BONGIORNO:  Thank you, Your Honour - or anything else in

relation to Elie Malkoun?

DAWSON J: Well you have said all you want to say - no, in

relation to Elie Malkoun, yes.

MR BONGIORNO: If the Court pleases.

DAWSON J:  Mr Bellanto.

MR BELLANTO:  May it please the Court. My learned friend

referred to Mr Justice Crockett. I understood him

to say that His Honour was a member of the

Full Court. His Honour was not on the Full Court

bench; I do not know whether my friend was

referring to an earlier decision in Bugmy, but the

Full Court - - -

DAWSON J: Justice Crockett was in disset in Bugmy, was he

not?

McHUGH J: Yes, he dissented in Bugmy.

MR BELLANTO:  Yes, but I understood my learned friend to say

that he was on the Full Court in this case.

MR BONGIORNO:	I did, and I was wrong.
MR BELLANTO:	I am sorry.

MR BONGIORNO: Mr Gyorffy just told me that I was incorrect;

I had misunderstood him. It was a judge, I am

sorry, I have libelled Mr Justice Crockett.

MR BELLANTO:  I thought I was in the wrong case for a

minute. Justice Toohey referred to the question of

a ratio in Victoria. As we understand it, there is

none indicated; however we take comfort from what

was said in the case of Lian, that Your Honours

have on the bench, where the court there said in

New South Wales before the new legislation,

75 per cent was considered the top of the range.

And finally, if the Court pleases, we adopt,

so far as necessary, the arguments advanced by my

learned friend, Mr Merkel, in respect of the

co-appellant.

DAWSON J:  Thank you Mr Bellanto. Mr Merkel.

MR MERKEL:  I do not wish to add anything further, if the

Court pleases.

DAWSON J:  The Court will retire for a short time.

AT 12.36 PM SHORT ADJOURNMENT

Malkoun	31	30/8/91
UPON RESUMING AT 12.45 PM:

DAWSON J: Neither the trial judge nor the Court of Criminal

Appeal expressly referred to the necessity to

distinguish between those factors which bear on the

fixing of the head sentences and those which bear

on the minimum terms, see Bugmy v Reg.

Nevertheless, having regard to what the trial judge said in relation to the head sentences in these cases, it is the view of a majority that a minimum term of 16 years does not seem manifestly unjust or disproportionate to the 18 years imposed by the

head sentence.

The cases turn on their own facts and the grant of special leave would not be likely to

result in any refinement or elaboration of

sentencing principles. The applicants also contend

that the sentencing judge was in error in the

manner in which he applied section 4 of the

Penalties and Sentences Act 1958. We are not

persuaded that the remarks of the sentencing judge

disclosed any error on his part. Special leave to

appeal will be refused in each case.

MR BELLANTO: If the Court pleases.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

Malkoun 32 30/8/91