Malvaso v The Queen

[1989] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1989

B e t w e e n -

GIANNI MALVASO

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ·· BRENNAN J DEANE J

Malvaso(2)

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY,. 22 AUGUST 1989, AT 10. 52 AM

Copyright in the High Court of Australia

AlT4/l /ND 1 22 /8 /89

MR M.L. ABBOTT, QC: May it please the Court, I appear for

the applicant with my learned friend, MR M.A. GRIFFIN.

(instructed by Elston & Gilchrist)

MR J.J. OOYI.E QC, Solicitor-General for South Australia: If

the Court pleases, I appear with my learned friend,

MR B.J. ILLINGWORTH, for the respondent.

(instructed by the Crown Solicitor for South

Australia)

MASON CJ:	Yes, Mr Abbott.
MR ABBOTT:	May I hand up five copies of the applicant's outline of argument.
MASON CJ:	Thank you.
MR ABBOTT:	As a preliminary matter, we seek leave to amend

to include two new grounds which grounds were - I think notice was given to the Crown some time ago and I believe a copy was sent to the Registry

in Canberra.

MASON CJ:  Yes, we have copies of it.

MR ABBOTT:  The two new grounds: one relates to section 302

of the CRIMINAL LAW CONSOLIDATION ACT and its

subsequent re-enactment in substantial - and

substantially re-enacted as section 12 of the

CRIMINAL LAW~ENTENCIN~ ACT and the further
ground is a reference to section 12 of the CRIMINAL

LAW~ENTENCING)ACT and the other provisions - I

am sorry, it is a reference to sections 10, 11,

38 of the CRIMINAL LAW 6ENTENCINQ ACT 1988 which came into operation on 1 January 1989 and I seek

leave to make those amendments and to argue those

grounds as part of this application.

MASON CJ:  Do you have any comment to make about that,

Mr Solicitor?

MR DOYLE:  Nothing as to the first one, Your Honour. As

to the second one, I would merely make the point

that at the hearing before the Court of Criminal

Appeal no argument was addressed to the court at all on whether it should be sentencing under the

new Act or the former Act and having been there

myself I am not at all sure whether the court was

proceeding under the new Act or under the former

section so there is the difficulty. It is not

addressed at all in the judgments and I do not

think the transcript will give us any indication

either.

But it is not a matter were in any sense we

are prejudiced so I merely point out that difficulty.

But I do not oppose the application.

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MASON CJ: Mr Abbott, the Court is of opinion there is no

need to make an order giving you leave to amend.

After all, the notice of appeal is merely a draft

notice of appeal setting out the arguments that
you would propose to rely upon in the event that

you had special leave to appeal. So we will hear

what you have to say in support of these additional

grounds in due course.

MR ABBOTT: If the Court pleases, could I hand up a list -

I do not know whether each of the Bench has a copy

of the draft notice of appeal containing the

additional grounds. I hand one up for the sake

of completeness of the papers.

This application for special leave arises

out of proceedings brought against one Gianni Malvaso

and as a result of an agreement that was entered

into between Mr Malvaso and the National Crime

Authority acting on behalf of or in conjunction

with the State Crown Law Office. The reason why

the State Crown Law Office was involved was because

it was proposed to prosecute Mr Malvaso and others

in relation to an offence against the law of

South Australia.

In consequence of the agreement that was reached,

Mr Malvaso changed his plea to one of guilty and

entered a plea of guilty to the information which

is contained in the application book at page 1,

the first count thereof. He was, thereafter,

sentenced after submissions were made by

Justice Olsson and Justice Olsson's sentencing

remarks can be seen at pages 47 to 50 of the

application book.

The outline of argument refers in particular

to the fact at page 2 of the outline that the Crown

appeal was expressly limited - I am sorry, I should

add that thereafter the Crown appeal to the Court
of Criminal Appeal - and the Crown appeal was

expressly limited to the head sentence and non-parole

period. This was in consequence of the agreement

that had been entered into between the applicant

and the law enforcement authorities.

What had happened was that the law enforcement

authorities, the prosecution, took this view:

they agreed to stand mute, that is to say nothing
on the question it put to them by the learned
sentencing judge whether the sentence should be
suspended or not. It is not true that they stood
mute in respect of every matter that would be
relevant to the question of suspension. Indeed,
they put forward on their own behalf, as part of
what they are prepared to say on behalf of

Mr Malvaso, submissions which if taken into account

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by the learned sentencing judge were, in our

submission, sufficient to suspend the sentence.

The Crown, for example, said matters in

relation to the importance of his assistance, the

danger that he had brought himself under and other

matters that were relevant, in our submission,

to the question of suspension. But on the issue,

if you like, as to what would the Crown say in

relation to suspension, yea or nay, the Crown,

as they caught it, stood mute.

The result of the Crown attitude was this,

that the applicant pleaded guilty. The applicant

pleaded guilty on the basis that if he could convince
the learned sentencing judge by virtue of the
submissions and evidence placed before the sentencing
judge to suspend the sentence, then the applicant
proceeded on the basis that that would be the end

of the matter so far as any jeopardy was concerned

that would curtail his liberty.

He was successful in so persuading the learned

sentencing judge to suspend the sentence of
imprisonment but thereafter the Crown appealed
to the Court of Criminal Appeal, not on the issue
of the suspension of sentence but on the sentence
per se, that is the head sentence and the non-parole

period.

The Crown took the view that the sentence,

but not the suspension of it, was manifestly

inadequate and that was the ground on which the

Crown appealed. They detailed and particularized

why they said it was manifestly inadequate.

The principal reason why the Crown said it

was manifestly inadequate was that the learned

sentencing judge, so it was said, had failed to

pay sufficient attention to the fact that there

was an act amending the penalties under the DRUGS

ACT legislaltion which increased the penalties

to $500,000 and 25 years imprisonment or both since the last lot of reported cases in South

Australia and I - none of which had been referred

to the sentencing judge but, in addition, the Crown

relied upon the passage of section 302 of the
CRIMINAL LAW CONSOLIDATION ACT which said section
was dealt with by this Court in the case of REG

V HOARE AND EASTON.

BRENNAN J:  Mr Abbott, was this bargain struck between the

prosecution and the defence a bargain which required

the accused to give information or a bargain which

required him to plead guilty?

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MR ABBOTT:  It was a bargain which had both components in

it.

BRENNAN J:  So it was struck before the information was given?

MR ABBOTT: It was struck before the information was given,

yes. It was struck on the basis that you plead

guilty and give the information and the assistance

that we seek of you, then the Crown attitude will

be this and the Crown will say this, that and the

other about the matter.

And so, it is conceded, I think, for the purposes of the appeal that the applicant fulfilled his

side of the bargain. What we say on this application

is that the Crown did not. Whilst it is true that

the Crown did what they said they would do in

relation to standing mute on the issue of suspension,

it was not in any way contemplated by the parties

that the Crown would appeal and thereby, albeit

still standing mute on the question of suspension

and not raising on the Crown side the issue of
suspension before the Court of Criminal Appeal,

place in jeopardy the liberty of Malvaso which

he had been accorded by virtue of the order of

the sentencing judge suspending the sentence.

What happened was that the Court of Criminal

Appeal unilaterally decided to intervene in the suspension of the sentence as well as increasing the head sentence and the non-parole period.

BRENNAN J:  When did the Crown acquire the right to appeal in sentence matters in South Australia?

MR ABBOTT: In 1984, I think, Your Honour. It is pursuant

to the CRIMINAL LAW CONSOLIDATION ACT, section 352(2).

I see it is inserted in 1980. I knew it was after

REG V TAIT AND BARTLEY because that judgment refers

to the various States where Crown appeals are

permitted.

So the right of appeal which is given to the

Crown by virtue of section 352(2) of the CRIMINAL

LAW CONSOLIDATION ACT says:

Where a person is convicted on information

and sentenced, the Attorney-General may, with

the leave of the Full Court, appeal to that

Court against the sentence passed on that

person, unless the sentence is one fixed by

law.

What we say about what happened was this, that

the Crown knew or at least realized that it was

a possible consequence of their actions that in

appealing against the head sentence and the

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non-parole period that the Full Court, the Court
of Criminal Appeal, may unilaterally, albeit without
any submissions from the Crown, intervene in the

suspension of the sentence.

We say that if either side had been asked

when the bargain was struck, this question,

"Assuming that the learned sentencing judge gives

Mr Malvaso a suspended sentence, will that be the

end of the matter so far as his liberty or lack of liberty is concerned?", the answer from both

sides would have been, "Yes".

So the Crown went ahead with an appeal saying

that it was to produce a standard and thereafter

the Crown, it is true, did not ask or invite the

Court of Criminal Appeal to interfere with the

suspension; indeed, my learned friend the

Solicitor-General made it very clear that the Crown

were not appealing on the issue of suspension.

And that can be seen - there are two references
that I wish to take the Court to: firstly, the

notice of appeal which is at page 70 of the

application book and the grounds of appeal at

page 70 are, firstly:

The Learned Sentencing Judge misapprehended

the appropriate penalty range in stating 'in

absence of any special circumstances, an

offence of this nature would automatically

attract an unsuspended custodial sentence

of the order of from four to six years'.

And, as I have said before, the basis on which

they claimed a misapprehension was principally,

if not entirely, due - that is wrong, not entirely,

principally due to the interpretation of section 302

of the CRIMINAL LAW CONSOLIDATION ACT that had

been given to it by the South Australian Supreme

Court in the case of REG V DUBE AND KNOWLES which

case was, as of June this year, overruled by this
Court in REG V HOARE AND EASTON.

DEANE J: Can you demonstrate that that is so? There is

not much point in simply saying that.

MR ABBOTT:  Yes, I can, Your Honour. I can demonstrate that

by reference to the outline of submissions on

page 74. Youwill see, at item 2:

The Crown makes no submissions -

on suspension:

3.      The appeal is brought to establish and

maintain a proper standard of sentence for

this offence.

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4.       The cases set out in the schedule of

penalties were all under the previous Act

and were sentences not affected by

section 302 of the CRIMINAL LAW CONSOLIDATION

ACT. They were, therefore, cases in which

the maximum penalty was ten years and $4,000.

5. Since then the maximum has increased to

25 years and $500,000. Parliament has also

enacted section 302.

And the court looks at the judgment of the Court

of Criminal Appeal at page 83, lines 14 and following.

The learned Chief Justice, in the course of his

judgment, said:

I think that that standard does not reflect
adequately the degree of criminality which
the legislature has attributed to the
production of large commercial quantities
of cannabis. It must be based upon a
consideration of sentences imposed prior to
the CONTROLLED SUBSTANCES ACT 1984, which
increased the maximum sentence for producing

crops in excess of 1,000 plants from 10 to

25 years, and before the commencement of

section 302 of the CRIMINAL LAW CONSOLIDATION

ACT, which requires the court to take into

account the statutory provisions regarding

good conduct remissions. The combined effect

of those two developments must be to increase
the sentences imposed for producing large

crops of cannabis quite substantially.

GAUDRON J:	But not the penalty for this offence?
MR ABBOTT;	Yes, Your Honour.  The offence was producing

cannabis under section 32(1)(a) of the CONTROLLED

SUBSTANCES ACT and the court in REG V DUBE AND

KNOWLES held that when imposing a penalty of any

good conduct remissions must be taken into account	sort in relation to offences the likely time for
and that that in turn resulted in an increase of up to 50 per cent in what would otherwise be the
appropriate standard of penalty. And it is our
submission that the Chief Justice, by referring to the increase in the penalties under the CONTROLLED
SUBSTANCES ACT and section 302, as justification
for the Court of Criminal Appeal intervention in the head sentence and non-parole period fell into
error, at the very least so far as section 302
of the CRIMINAL LAW CONSOLIDATION ACT was concerned.

If one looks at page 89 - - -

DEANE J: It is not quite as clear though as your submission

suggests. One starts with the Crown's statement

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that the old range was about two to four years. You have got two factors pushing that range up, one was the dramatic increase in penalties, the

other was section 302. Now, if it were just

section 302 your path would be fairly clear but

with the dramatic range or with the dramatic increase
in the maximum penalty is the sentencing judge's
range of - what was it - four to six years correct,
not correct or is it unduly low notwithstanding

the mistaken view of section 302?

MR ABBOTT: 

We would say not, that if one applies the

procedures which the Court of Criminal Appeal itself
said should be carried out by sentencing judges
after the decision in DUBE AND KNOWLES, and indeed

there is reference to that by the Chief Justice

at page 89 of his judgment again where he says

at line 5:

the just sentence, in my opinion, for Malvaso's

criminality after giving full weight to the

plea of guilty, would be 9 or 10 years

imprisonment, I cannot justify a reduction

for the considerations which I have discussed

to less than 5 years. I think that the

sentence of 3 years which the learned judge

imposed is far too lenient and resulted from

an erroneous impression as to the standards
of punishment for a large commercial scale
cannabis crops which are appropriate since
the institution of the higher penalties and

the enactment of section 302 of the CRIMINAL

LAW CONSOLIDATION ACT.

DEANE J:	But the real query then becomes, does it not, that
can one, as it were, adjust what His Honour said
there to in effect say six to seven years because
if one can allowing for the qualification of an
appellate court interfering with sentence, and
so on, it will probably bring you back close enough
to the trial judge's sentence to have the Court
of Criminal Appeal's reason for interfering with
the order suspending no longer - - -

MR ABBOTT: Relevant.

DEANE J:	- - - relevant. But I do not see clearly that
you can read it down to six or seven years.

MR ABBOTT:  Could I approach it this way: the learned

sentencing judge was given no real information

about the range of penalties. The learned sentencing

judge imposed a sentence of three years non-parole,

that is three years head sentence, two years non-

parole and a fine of $5000, suspending the sentence

of imprisonment. The Court of Criminal Appeal

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three months later increased the head sentence

to five years and the non-parole period to 3½ years.

True it is that reference was made in the judgment

to both the introduction of higher penalties in

relation to the old cases and section 302 but we

say it is a fair inference that section 302 carried

a great deal of weight with the court. indeed,

both matters having been referred to the learned
sentencing judge by Crown counsel but no cases
having been referred to him that would tend to

support the increase sought by the Crown on appeal.

The schedule that was produced to the Court

of Criminal Appeal was not produced to the sentencing

judge and the schedule which was produced is merely

a recitation of cases decided in the reports which

relate to South Australian cultivation cases and

it is true that they are apparently all under the

old Act and before the increase was made to 25

years and $500,000.

But the sentencing judge proceeded on the basis

that -as he said in his report which is at pages 72

and 73, in particular page 73, line 10.:

One of the major problems which I encountered

was a paucity of comparative sentencing

standards. In fact there was very little

information available in the records of this

Court and only some indirectly relevant data

in the District Court records. That information

which was available was not very recent and

it revealed surprisingly low tariffs for

cannabis production or equivalent offences.

Many sentences seemed to be no more than

three years and a large proportion of those

were less than that period. There appears

to have been a sharp divergence in approach between cannabis related offences and those involving hard drugs. It seemed to me that the tariff data available did not justify

consideration of a 'normal' sentence in excess

of Lunn AJ in respect of a more valuable crop

was seven years.

of 4-6 years, although a very recent sentence

The submissions of the Attorney-General which are on the next page and which I have already referred

to, after reciting in item 5 that:

the maximum has increased to 25 years and

$500,000 -

and that section 302 has been enacted, it goes
on to say:

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The cases indicate that for a crop of this size the range was from about two years to about four years depending upon the degree

of involvement. In the light of the

legislative changes -

and I emphasize plural -

and the attitude of Parliament the range should

now be from six years to twelve years.

7.       In the case of Malvaso 0 the head sentence

should have been between six years and eight
years with a non-parole period of not less

than four years.

And before I leave item 8, the Attorney-General

invites the court to establish a clear standard

and, at page 76, it is said, as to:

the decision to suspend, the Crown makes

no submissions because of the agreement of

which His Honour was informed and because

the Crown accepts that it should only change

its attitude on sentence in exceptional cases.

So that when the learned Chief Justice came to

consider this matter, in his judgment, he had had

the benefit of submissions in relation to

section 302 and to the increase in the legislation

and to the schedule which the learned Solicitor-

General placed before the court. And he said this

at page 83, in the passage that I have already

referred the Court to - he said this at line 10:

The learned sentencing judge approached

his task upon the basis that "in absence of
any special circumstances, an offence of this
nature would automatically attract an

unsuspended custodial sentence of the order

of from 4 to 6 years".	I think that that
of criminality which the legislature has
standard does not reflect adequately the degree
attributed to the production of large commercial
quantities of cannabis. It must be based
upon a consideration of sentences imposed prior to the CONTROLLED SUBSTANCES ACT 1984,
which increased the maximum sentence for
producing crops in excess of 1,000 plants
from 10 to 25 years -

I point out, so was the Court of Criminal Appeal's

consideration based on such cases - there were

not any under the new legislation -

and befo~e :the commencement of section 302

of the CRIMINAL LAW CONSOLIDATION ACT, which

requires the court to take into account the

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statutory provisions regarding good

conduct remissions. The combined effect of

those two developments must be to increase
the sentences imposed for producing large

crops of cannabis quite substantially.

And so he then returns to the applicant at page 86,

line 20, after dealing with another offender and

he says:

I now return to Malvaso. I have already said

that, giving full weight to his plea of guilty

but prescinding from certain special

circumstances to which I shall now refer,

I would have regarded the appropriate head

sentence as 9 or 10 years.

And then he deals with the special circumstances in assisting the authorities to secure the

conviction of one Moyse.	And he deals with the
evidence against Moyse:

The principal evidence against Moyse was that of an informer who had been a collaborator

with Moyes in his criminal dealings in drugs.

The informer had taped a conversation between himself and Moyse which incriminated Moyse

and therefore provided important corroboration

of the informer's evidence. That tape came

to be in the possession of Malvaso. He used

it as a bargaining counter to endeavour to

secure favourable treatment from the

authorities. In the end he agreed to plead

guilty to the charge of producing cannabis,

an original charge of conspirac~ being

withdrawn, to give evidence against Moyse

if required, and, most important of all, to

hand over the incriminating tape. Malvaso

performed these promises to the satisfaction

of the prosecuting authorities.	As an
inducement -

and I emphasize "as an inducement" -

to Malvaso to take the course which he took,

the authorities agreed that in relation to the question of whether Malvaso's sentence should be suspended, the prosecution, as an

advantage to him, would "stand mute".

And then the Chief Justice deals with what in fact

he understands the phrase "stand mute" to mean.

But we say that it was not merely standing mute,.

it was standing mute on - and that is not answering

the question if posed by the sentencing judge,

"What is the Crown attitude to suspension?", but

it was more than standing mute, it was also

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assisting the court by putting forward matters

favourable to Malvaso which, indeed, the Crown

did do to a limited extent.

(Continued on page 13)

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:MR ABBOTT (continuing):  Now, what we say happened is this:

Malvaso acted upon the inducement; he agreed to plead guilty; he took the risk that he would not be

able to convince the sentencing judge to suspend the
sentence of imprisonment. Fortunately for him the
learned sentencing judge did agree to suspend the
sentence of imprisonment but the Crown put it all at

risk, again, not by appealing on the issue of

suspension but by appealing on the issue of the

head sentence and the non-parole period.

BRENNAN J: What is the provision which provides for suspension

of sentences?

:MR ABBOTT: Well, at the time of the Court of Criminal Appeal

sentencing, it was section 38 of the

CRIMINAL LAW (SENTENCING) ACT but at the time when

the learned sentencing judge dealt with it, it was

section 4 of the OFFENDERS PROBATION ACT, in

particular, section 4(2a).	I have copies for the
Court.

MASON CJ:	Thank you.
:MR ABBOTT:	The new section under the CRIMINAL LAW (SENTENCING) ACT, section 38, is in the front of our book of
authorities which the Court should have. If one compares the OFFENDERS PROBATION ACT, section 4(2a)

Where a person has been convicted of an

offence punishable by imprisonment, and the court is of opinion that, having regard to-

(a) the character, antecedents, age, health

or mental condition of the person convicted;
(b) the trivial nature of the offence;

or

(c) any other extenuating circumstances -

it may -

suspend the sentence.

Under section 38 the grounds are much wider, expressed to be:

if it thinks that good reason exists for

doing so.

So, the sentencing judge was obliged to suspend

pursuant to the provision of the OFFENDERS PROBATION

ACT. The Court Qf Criminal Appeal, if it was to

consider suspension, was obliged to consider

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Malvaso(2)

unfortunately the provisions of the CRIMINAL LAW

section 38 of the CRIMINAL LAW (SENTENCING) ACT, 1988.

(SENTENCING) ACT, 1988 appeared to have past

unnotice4 by all - both applicant respondent and

court. We would, in our amended cil.raft grounds of

appeal, raise this matter that this fact regrettably
occurred.

So, the deal was struck; Malvaso was induced "to take the course which he took", to use the words of the

Chief Justice at page 87. He fulfilled his side of

the bargain; he proceeded on the basis - to use the

words of the Chief Justice at page 87 - that the

prosecution in "standing mute" that would be of "an

advantage to him". He took the risk that the

sentencing judge would not suspend; the sentencing
judge did suspend; Mr Malvaso entered into the bond,

et cetera; paid the fine which still has not been

repaid - the sheriff still has that - and, thereafter,

went about his business.

The Crown then appealed, only on the sentence

of imprisonment and the length of that sentence and

the non-parole period but the Court of Criminal

Appeal decided to intervene in the suspension.

Considering that the fact that they were permitted,

by way of law, to intervene in the head sentence

and non-parole period opened up the entire sentencing

topic. One of the questions that we seek to raise

on this application for leave is whether or not the

Court of Criminal Appeal should have assumed

jurisdiction in those circumstances. In our

submission, this situation is very similar -

BRENNAN J:  D::> you mean "should have assumed" or "had

jurisdiction''?

MR ABBOTT:  I think, sir, that legally the court had jurisdiction

in the sense that this was an appeal against sentence

and that an appeal against sentence opened up

jurisdiction to have a look at the entire sentence.

BRENNAN J:  The question is, is it not, whether or not the

Full Court, in granting leave, had a jurisdiction to grant leave more broader than the grounds which were

raised by the Attorney-General?

MR ABBOTT: Well, there appears to have been no consideration·

Indeed, we were unaware of the leave being granted.

Apparently it was done by a single judge without

hearing submissions from either side. We had, indeed,

I understand from my instructing solicitor, wanted to

be heard on the application for leave but the

application for leave, as our CRIMINAL LAW

CONSOLIDATION ACT provides, can be considered by a single judge exercising the powers of the Full Court

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Malvaso(2)	13

and the application for leave, as I said, occurred

apparently ex parte and the matter was referred to

the Court of Criminal Appeal

MASON CJ: That is how it is ordinarily done, is it not, in

this State?

MR ABBOTT: 

No, sir, it is ordinarily done in the vast majority

of cases by an adversarial hearing in which the Crown,
not always but invariably, where

it is a defendanr. seeking application for leave on

the question of sentence, oppose the matter and the
applicant has to demonstrate arguable grounds for
the consideration of the Court of Criminal Appeal.

BRENNAN J: What is the provision which allows for a single

judge to grant leave in an Attorney-General's appeal?

MR ABBOTT:  There is, to my knowledge, no special provision

allowing a single judge to grant leave in relation

to an Attorney-General's appeal. If one looks at section 352, which is in the front of our book of

legislation and cases, the amendment giving the

Attorney-General leave was inserted, without any

proper consequential amendments into the section

giving an appellant, that is, until 1980 a prisoner -
namely a person who is convicted- leave to appeal.

By section 356, which is not in the materials before you, of the CRIMINAL LAW CONSOLIDATION ACT, the provisions vested in the Full Court have the same

powers as the supreme court.

There is a provision, section 367, which is not,

again, in the materials, says that:

The powers of the Full Court under this Act to

give leave to appeal, to extend the time within

which notice of appeal, or of an application

for leave to appeal, may be given, to allow the
appellant to be present at any proceedings in

cases where he is not entitled to be present

without leave, to admit an appellant to bail	and to direct that time spent in custody by an
appellant pending determination of an appeal be
counted as part of a term of imprisonment may
be exercised by any judge of the Supreme Court in the same manner as they may be exercised
by the Full Court, and subject to the same
provisions, but, if the judge refuses an
application on the part of the appellant to
exercise any such power in his favour, the appellant shall be entitled to have the

application determined by the Full Court. "Appellant" is defined in section 348 of the

CRIMINAL LAW CONSOLIDATION ACT, to read:

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Malvaso(2)

unless inconsistent with the context or

subject matter -

"appellant" includes a person who has been

convicted and desires to appeal under this Act.

As I have said, the insertion of the Attorney-General's right to appeal in respect of

sentences was done apparently without the benefit

of any necessary consequential amendments and

represents a rather anomalous situation where

section 352 (2) was just tacked on to the right of a

person convicted to appeal against sentence. If

one looks at section 352(l)(d) it will be seen that a

person convicted may:

with leave of the Full Court -

appeal -

against the sentence passed on his conviction.

That is, the leave of the Full Court aspect,

is recited in subsection (2). Section 352(2) is,
as far as I am aware, the only amendment that was

made to the CRIMINAL LAW CONSOLIDATION ACT and,

indeed, to the rules relating to
criminal appeals to comprehend,or attempt to cover

the anomalous situation of a Crown appeal.

BRENNAN J:  The difficulty I am having at the moment,

Mr Abbott, is that on one reading of section 367,

the appellant that is referred to in that section
and thus the appeals which are referred to in that

section are prisoners' appeals and not Crown appeals.

If that is so then the leave which is referred to

in section 352(2) can be granted only by the

Full Court and not by a single judge.

MR ABBOTT:  Yes, that was right. That would follow.

BRENNAN J:  Did the Full Court purport to grant leave?

MR ABBOTT:	No, the Full Court did not purport to grant leave because a single judge had already purported,
ex parte, to grant leave.  I do have a copy of the
court file which shows the endorsement of
Justice Matheson in which he purported to grant
leave to appeal to the Crown in this matter. May
I hand this up to the Court? I apologize for not
having multiple copies. Have you seen that?
MR DOYLE:	No.
MR ABBOTT:	Could I show it to the Solicitor-General first

of all?

AlT5/4/DR	15	22/8/89
Malvaso(2)

MR DOYLE:	I cannot even read it.
MR ABBOTT:	Could I attempt to decipher it? I think it reads

this way:

referred to the Court of Criminal Appeal,

more particularly because of trial judge's

report and because leave to appeal has

already been granted in case of SERGI.

Matheson, J., 1 February 1989.

MASON CJ:  Thank you.

BRENNAN J: Well, what was referred to the Full Court? The

application for leave?

MR ABBOTT:  No. I understood by that that the actual appeal

against sentence was referred to the Full Court.

Certainly, my learned friend never applied for leave

to appeal from the Full Court proceeding, as I
understand his attitude, as indeed I understood the

counsel who represented Mr Malvaso, that leave had

already been granted by Justice Matheson in that

endorsement on the file.

BRENNAN J:  No doubt the Solicitor can assist us at a later

stage. It is his problem rather than yours, I would

have thought.

MR ABBOTT:  Yes.

MASON CJ: What precise point are you making about this at the

moment, Mr Abbott? You have drawn our attention

to this and you have suggested that there was no

actual grant of leave as was required by section 352(2).

Now, what flows from that?

MR ABBOTT:	What would flow from that - - -
MASON CJ.:	Yes.
MR ABBOTT:

- - - would be that there be no application for

leave: that being a condition precedent to the

entertaining of the appeal under section 352(2).

The whole proceedings by the Full Court, the

Court of Criminal Appeal, proceeded on an invalid

premise, namely, that leave had been granted when,

in fact, it had not been. The Court of Criminal

Appeal, failing to address its attention to a

consideration as to whether or not leave should be granted which, in one way I suppose, explains some of the matters that, perhaps, I have attempted to

cover in my outline: namely, that the court

appears to have had no regard to the special and

unique role of Crown appeals in dealing with the

Attorney-General's appeal in the course of its judgment.

AlT5/5/DR	16	22/8/89
Malvaso(2)

What it appears to have said is, "We have found

some manifest inadequacy here in terms of the

sentence. The sentencing judge should have had

more regard to the amendment and increase in

penalties under the legislation. The sentencing

judge should have had more regard to section 302;

there is manifest inadequacy, therefore the head

sentence should be increased and the non-parole period"

?nd in relation to the suspension of it the

Chief Justice said that he could not see any grounds

at all for the exercise of the discretion to suspend.

Justice Cox, who concurred with the Chief Justice,

appeared to have been quite disturbed at the

suspension of it. He said, at page 98 of the

application book, to allow Malvaso:

to walk away with a suspended sentence, would be

quite wrong.

GAUDRON J: But, Mr Abbott, does not that all assume tha4 for

the purposes of an appeal under section 352(2), you

break up the sentence into its component parts? Now,

I would not be sure that you do. I would have thought

a sentence is a sentence comprising of all its parts

and once one got to the position where the sentence

was said to be manifestly inadequate then what was

required was resentencing; attending to all its

component parts. I would have thought, unless you

can read into section 352(2) that the sentence

includes any part of a sentence, you could not make

that argument. Maybe you can read that into

section 352 -

MR ABBOTT:  Maybe I can respond this way, Your Honour: we

say that even if it was permissible for the Court

of Criminal Appeal to have considered "the whole
lot is up for grabs", we say they should not have

embarked upon a consideration of the suspension

aspect and that there is authority of our own Court
of Criminal Appeal where they have allowed an

increase in sentence on a Crown appeal but have

declined to interfere in the discretion. So, there

are authorities and cases where the Court of

Criminal Appeal has divided up the various fractions

of the sentence.

DEANE J:	But have you not got an earlier problem and that is
if the trial judge makes an order that the sentence
he imposes be suspended and the Court of Criminal
Appeal then quashes that sentence and imposes a new
sentence, the trial judge's orders suspending his
sentence has nothing to say to the sentence imposed
by the Court of Criminal Appeal.  The only way you
can get that suspended, if the Court of Criminal
Appeal increases it, is to get an order from the
Court of Criminal Appeal suspending it.

AlT5/6/DR	17	22/8/89
Malvaso(2)

MR ABBOTT:  I acknowledge the logic of what Your Honour has

said, but it was not followed in the case of

ATTORNEY-GENERAL V HEEL, a decision of

the Court of Criminal Appeal, which is on our list

of authorities to which I wish to refer in this

regard. It is the second case in our book and the

reference to HEEL's case is (1982) 104 LSJS 183.

The President of the Court of Criminal Appeal,

Justice Mitchell, said what the grounds of appeal

were at page 183, third paragraph:

The grounds of appeal are that the sentence
of two years' imprisonment imposed in respect
of each crime was manifestly inadequate; that

the effect of the total period of four years'

imprisonment imposed was manifestly inadequate,

in that the period did not adequately reflect

the criminal conduct of the respondent; and

that the sentences were manifestly inadequate

in that the sentencing judge erred in

suspending the sentences imposed.

At page 185, Her Honour said this - in the

first paragraph, the second sentence thereof:

Taking all that into consideration, however,

it seems to me that the sentence of two years'

imprisonment for each offence was manifestly

inadequate and that the total of four years'

imprisonment did not adequately reflect the

criminal conduct of the respondent over the

period in question. I would think that a

sentence of four years' imprisonment for each

of the crimes and no less could be justified

as being an appropriate penalty in the

circumstances and I would vary the sentences

accordingly.

Other considerations arise in regard to the

suspension of the sentences. As the

Solicitor-General has pointed out, this court

has said on a number of occasions that it is

only rarely that it is appropriate to suspend a

sentence of imprisonment imposed for armed

robbery. As he also pointed out, the court

has stated on a number of occasions that the

deterrent aspect must predominate in

sentencing for armed robbery.

There is reference to REG V KNIGHT and REG V SPIERO - However, the discretion to suspend is the

discretion of the sentencing judge. Unless

he can be shewn to have fallen into error,

it is not appropriate for this court to

interfere. I am satisfied that no error has

been shewn in this case.

AlTS/7/DR	18	22/8/89
Malvaso(2)

The learned sentencing judge carefully	reviewed the evidence before him, gave full
and proper consideration to the nature of
the offences and to the facts which, in his opinion, weighed sufficiently to enable him to exercise his discretion to suspend the
sentences. I would not interfere with the
discretion to suspend the sentences for
imprisonment.

And the order of the Cpurt can be seen on page 186. Now, whether that is treated as

Your Honour Justice Deane scenario has it a new

order of suspension attaching to a new sentence or

whether it be the old suspension not being interfered
with and carried over to a suspension of the new

sentences, one is unable to say.

DEANE J: On your argument, the last part of Her Honour's

order was surplusage.

MR ABBOTT:  Yes, because she says:

contained in the bond entered into before

the learned sentencing judge -

the same bond presumably continued,, or on the same
terms and conditions, in any event. But, we

endeavour to take a broader approach than that. We

say that the special nature of the Crown appeal

is such that, as I have said before, the Court should

decline jurisdiction and we obtained that view and

that submission from the case of JERMYN, (1985)

2 NSWLR 194. In JERMYN's case - that was a case

where the Crown, so the headnote reads:

fails to assist the trial court to avoid

appealable error by informing the sentencing

judge in response to a request for assistance

that there could not be seen to be any objection
to the accused being granted a bond, the Court

of Criminal Appeal should as a matter of

discretion decline to exercise its appellate

authority to correct inadequacies in the

sentencing order on the ground so conceded.

The basis on which that headnote is compiled

is to be found initially in the judgment of

Chief Justice Street at page 197P:

The specific matter relied upon by the

respondent is that the Crown, having informed

the sentencing judge that there could not be

respondent a bond, now seeks to assert in	seen to be any objection to granting the
this Court that his Honour erred in so doing.

AlTS/8/DR	19	22/8/89
Malvaso(2)

Then the Court referred to GAMBLE and the

well-known case of TAIT.	The Chief Justice said,
at page 198C:

The present case falls clearly on the other

side of the line. The conclusion is
inescapable that the Crown failed to assist

the District Court to avoid appealable error.

Nash -

of the district court -

(who, it should be noted, was sitting in the

country, without access to reports and

research facilities available in the city)

sought the Crown's assistance upon whether it

would be erroneous to deal with the matter on
a non-custodial basis and the Crown specifically

informed his Honour that it would not be

erroneous.

Then there is a reference to what transpired:

His Honour prudently and properly sought

information from the Crown in relation to
decisions of this Court on sentencing in
matters of this nature. If the Crown was
either not aware of the general tenor of

such cases or did not have access to them, or

a summary of them, it had a clear obligation to

say so and the judge would no doubt then have

taken further steps to obtain the requisite

information. As it happens, the Crown made a

definitive statement that there was no

objection to the matter being dealt with by

way of recognizance.

In this context I am of the view that this Court should, as a matter of discretion, decline to exercise its appellate authority to correct the

inadequacies in the sentencing order.	The
appeal should be dismissed.
And we say, to a like effect, the Court of

Criminal Appeal, whatever jurisdiction it may have

had and whether it be the fact that the entire

sentence or, as we would submit, only part thereof

was available for consideration the Court of Criminal

Appeal, given that the Crown appeal jeopardized or

potentially jeopardized the freedom of the applicant,

should have declined to exercise its appellate

authority merely to correct a sentence which, on the
best view for the Crown, was said to be merely

manifestly inadequate.

We say, and submit, that the principle of

double jeopardy in relation to Crown appeals, if there

be such a principle - and we would contend that there

AlTS/9/DR	20	22/8/89
Malvaso(2)

is such a principle - should be paramount to

considerations of mere manifest inadequacy such as

were present here. That is, of course, putting
aside the argument that there was no manifest

inadequacy, given the High Court's decision in

REG V HOARE AND EASTON in relation to section 302

of the CRIMINAL LAW CONSOLIDATION ACT and its

successor which operated at the time of the Court

of Criminal Appeal's deliberations - section 12 of

the CRIMINAL LAW (SENTENCING) ACT, 1988.

So, in further support of this submission,

I refer to the judgment of Your Honour Justice McHugh

in JERMYN's case, at page 202C where you

said that:

An appeal by the Crown is a challenge to the

exercise of the sentencing judge's discretion.

And you then dealt with basic matters and went through

the cases. Then on page 204F, aft~r

reciting the relevant authorities, Your Honour said:

In the present case the learned trial judge sought the assistance of the Crown as to

whether it was open to him, having regard to

the course of authority in the Court of

Criminal Appeal, to impose a non-custodial

sentence. The Cr.own said that it would be

open to the learned judge to deal with the
matter otherwise than by a custodial sentence.

Now the Crown submits to the contrary.

Your Honour then said:

Only in the rarest of cases, if at all, would a

private litigant be allowed to appeal against

the exercise of a discretionary judgment in

respect of a ground which he had expressly

conceded was open in the court below. No doubt

the public interest in having proper sentences

imposed upon offenders makes the case of the

private appeal an imperfect analogy. But when

the Attorney-General on behalf of the Crown asks
the court to set aside a sentece on a ground

which was conceded in the court below, I think

that this Court in the exercise of its undoubted
discretion should be slow to interfere.

Now, it is true that -

GAUDRON J: Is not that case, though, somewhat different

really? The appeal was concerned wholly with the

suspension of the sentence, was it not in JERMYN's

case?

AlTS/10/DR	21	22/8/89
Malvaso(2)

MR ABBOTT:  Yes, it was.

GAUDRON J: Whereas this appeal was concerned with the

sentence as to the fine and the period. And

the most that comes out of JERMYN, I should think,
is that the Court of Criminal Appeal has a

discretion as to whether or not it will allow

an appeal in respect of a matter which was

conceded before the sentencing judge.	Does it
go any higher than that?

MR ABBOTT:  We would seek to make it go a little further,

to cover the case of MAHONEY, where a matter

was conceded but where the Crown by its inaction,

or action, contributed to the error which is

sought to be raised on appeal.

GAUDRON J:  But does JERMYN go beyond acknowledging a

discretion in the Court of Criminal Appeal as

to how to deal with the cases in those circumstances?

MR ABBOTT:	No, it does not go beyond - - -
GAUDRON J:	Can you put it any higher by reference to

JERMYN that your Court of Criminal Appeal had more than a discretion, that is to say, that he

had a duty which is the way in which you originally,

I thought, phrased your submissions?

MR ABBOTT:  I do not think I can put it any higher than

that.

GAUDRON J:	Than a discretion?
MR ABBOTT:	Than a discretion.
GAUDRON J:	Were submissions put to your Court of Criminal

Appeal as to the existence of that discretion?

MR ABBOTT:	Yes.
GAUDRON J:	You asked the court not to entertain the appeal?

MR ABBOTT:  The court was asked, as I understand it, not to entertain the appeal. Could I just - - -

GAUDRON J:  And the court ruled against you in that discretion.

MR ABBOTT:  There was not a specific ruling. On the issue

of the suspension of sentence, counsel for Malvaso

prepared a memorandum which in no way covered the

issue of suspension. When asked by the Court of

Criminal Appeal, "What are you going to say about

suS:_)ension?", the answer was to the ef feet, "Nothing,

because it's not raised before you." The Court

of Criminal Appeal said, and I am paraphrasing "Well,

AIT6/l/JM	22	22/8/89
Malvaso

you'd better say something about it, because
we'd like to hear from you about it." Then, on
that basis counsel did address them, that they

should not interfere with the suspension because

it was not before them.

GAUDRON J: That really is not the point I am putting to

you. I thought your point, but I may be quite at cross purposes, is that the Court of Criminal

Appeal should not have entertained the appeal.

MR ABBOTT:  In the exercise of its discretion?

GAUDRON J: In the exercise of discretion, full stop; no

matter what, on any issue?

MR ABBOTT:  Yes, that is right, because it was in breach

of the bargain, the agreement.

GAUDRON J: · Yes. Was that submission put to the Court of

Criminal Appeal?

MR ABBOTT:  Yes, that is so. My learned friend assists

me in this regard. Page 77 of the appeal book,

Your Honour, at line 10:

This is a "Crown appeal". The principles

which relate to such appeals:

- prevent consideration of the matters which

the appellant wishes to raise, or

alternatively

the Court should in the exercise of

discretion decline to consider them.

So it was put firstly, that there was in effect no jurisdiction.

GAUDRON J:	You can use JERMYN to support the existence of discretion, which would go to paragraph 5, the
second dash.  But, given that it is an exercise
of discretion, you must go further and point to
some wrong principle infecting that exercise
of discretion.
MR ABBOTT:	Yes, that is so.
GAUDRON J:	Where is that?
MR ABBOTT:	The principle, which we say was not applied and which infects that exercise of discretion, was
the principle of double jeopardy. It is the
application of that principle to the role of
Crown appeals which we seek in aid of the
submissions we make.  Our starting point is
the remarks of Justice Deane in DAVERN V MESSEL,
where you spoke of it being wrong that a man
should go to sleep at night free and wake up,
I think you said "on the morrow", at risk to
go to gaol.  Your Honour's judgment is extensively

AIT6/2/JM	23	22/8/89
Malvaso

referred to by the President of the New South Wales

Court of Appeal, Mr Justice Kirby, in COOKE V

PURCELL. That is in our book of authorities, at

the back of the book. Justice Kirby, at page 2, in

the paragraph entitled, "The enduring principle

against double jeopardy", details the history of

the principle of double jeopardy and then, at page 5

of his judgment, says this, line 1:

It is to be noted that, at the heart

of this principle, as so expounded, is not

the avoidance of the risk of double

punishment as such but the avoidance of

vexation, the misuse of the great authority

of the state and the potential oppression

that may be involved in double trial and

double risk of conviction. The principle

has a basis different in kind from the

related rules which promote finality of

litigation, such as res judicata and issue

estoppel. The estoppels which can arise

from litigation do not, as many cases show,

demand the determination in the first

proceeding of precisely the same issue as

arises in the second proceeding. The

principle at stake in the development of

the "double jeopardy" rule is grounded in

something more fundamental than the prevention

of relitigation or the promotion of

finality of proceedings. It is based,

ultimately, upon a perceived principle

fundamental to civil rights.

MASON CJ:  You do not need to read all of this, do you,

Mr Abbott?

MR ABBOTT:  No, I was not going to read much more excent

to refer the Court to pages 6 and 7, where

Mr Justice Deane's judgment in DAVERN V MESSEL

is set out in extenso, and at page 8 double

jeopardy and Crown appeals against sentence are

Full Federal Court in TAIT AND BARTLEY is	specifically mentioned, and the decision of the
referred to. His Honour sets out the decision
in TAIT AND BARTLEY at the bottom of page 8:

It would be unjust to a defendant to

expose him to double jeopardy because of

an error affecting his sentence, if the

Crown's presentation of the case either

contributed to the error or led the
defendant to refrain from dealing with some
aspect of the case which might have

rebutted the suggested error.

We say that this is a case of double jeopardy, by

whatever means one likes to define that phrase,

because the Crown's presentation of the case

AIT6/3/JM	24	22/8/89
Malvaso

indeed contributed to the error and the

Crown's actions in not assisting the Court when asked to do so, but by remaining mute and citing no cases, led the court into the

error allegedly identified by the Court of

Criminal Appeal. The error, as I have said,

allegedly identified by the Court of Criminal

Appeal, was the failure to increase the sentence

sufficiently to cope with section 302, but no

guidance was offered to the sentencing judge

as to how he was to do this, other than a bald

reference to section 302 by counsel for the

Crown. The other matter that was alleged to be

incorrect on appeal, was the failure to take

into account the increase in penalties brought

about by the legislation. Again, apart from a

bald recitation of the fact that there was

such an increase, there was no assistance

provided to the learned sentencing judge.

So, we say that if one looks at what occurred

before the learned sentencing judge, the Crown,

in doing what he did do, contributed

substantially to the alleged error which was then

raised by the Crown on the appeal to the Court of

Criminal Appeal. If I could further refer the

Court - - -

BRENNAN J:	Mr Abbott, if we get past the stage of the Full Court going beyond what the notice of
appeal by the Crown asked it to do, which is
a problem for Mr Solicitor, we must come back, must we not, to the explanation of the course which the Crown took before the sentencing judge;
in other words, it was there performing an
agreement.  Do we not need to consider then
what role such an agreement should play in
the view of a court of criminal appeal which
is entertaining an appeal against sentence?
What is the role of an agreement in a case
like this? Is it something which in the
public interest the court is bound to acknowledge
and give effect to?
MR ABBOTT:	Yes • That raises the issue of pl-ea bargaining.
BRENNAN J:	Yes.

MR ABBOTT: It depends, I suppose, on what one calls "plea

bargaining". If the phrase "plea bargain" is

apt to cover a situation where an accused person

pleads guilty in reliance upon an understanding

of what the Crown will do during sentencing

submissions, then this was plea bargaining.

If the nhrase is intended to relate to some deal involving the judge, this was not plea

bargaining. We accept that the judge's discretion

was not fettered in anyway by the agreement

between the Crown and the defence, except in so

AIT6/4/JM	25	22/8/89
Malvaso

far as it resulted in certain material being

put to him, and only certain material being

put to him.

MASON J: Except it may be one thing for the Crown to

say, "If you do this, it will influence us

and our submission will reflect that view

and we will say we support a suspended

sentence." It may be another for the Crown
to say, "If you do this, we won't help the

sentencing judge on whether or not a

suspended sentence is appropriate."

MR ABBOTT:  The Crown, with respect, sir, did not say that

they would not help the sentencing judge.

MASON CJ: Is that not exactly what this strange phrase,

"standing mute" means?

MR ABBOTT:  The Crown had it, in effect, both ways, in one

sense, in that part of the agreement was that

they would positively put forward matters on

which the suspension could in fact take place.

MASON CJ:	But stand mute -
MR ABBOTT:	But stand mute.
MASON CJ:	- - - on the question whether there should be

a suspended sentence.

MR ABBOTT:  On whether, in their view, he should suspend.

There is a slight difference and you will see

that a memorandum was handed up in anticipation

of a Crown memorandum. That is why the document

refers to a memorandum. It is at page 61 and

this was a memorandum handed up by those

representing Malvaso. The memorandum is divided

into two narts: "Conunents on the first section

of the rnemorandum",that was in anticipation of

the Crown filing a similar memorandum. We had

been given by the Crown a written memorandum

which contained what they said they were going

to say. Because it was felt that the Crown

memorandum did not adequately reflect the

bargain that had been struck, a defence

memorandum - if you like - was handed up. The

second part of the memorandum is the relevant

part because it refers to the "Conunents on the

reasons why the Crown takes the position of
remaining mute on the question of suspension

of sentence". That can be found at page 65 of

the application book:

As to the second nart of the submissions
of the prosecution on the topic of why
the Crown is taking the position of
standing mute on the question of suspension

of sentence the following points should be made.

AIT6/5/JM	26	22/8/89
Malvaso

These points were, I think it is fair to say, never denied by the Crown in the course of

their submissions to the sentencing judge.

Point 1 is of extreme importance:

It is correct that before the

commencement of the Moyse trial the Crown

approached those acting for Malvaso. At

that time the prosecution told the defence
that they would be prepared to accept a

plea to a charge of producing cannabis at
Penfield and that no other charges would be preferred against Mr Malvaso if he

pleaded guilty. They stated also that

whilst the Crown could not be seen to

actively support the suspension of any
sentence of imprisonment the Crown would

inform the Court that they had nothing

to say as to what the penalty should be.

The Crown's position was put on the basis

that whilst their instructions were that

they were unable to state to the sentencing
judge that they actively supported a
suspended sentence they would preserve

"a very favourable silence". Indeed, the

Crown described such silence as "the most

favourable silence possible".

BRENNAN J: Where is the Crown's submission?

MR ABBOTT:  The Crown's submission starts at page 39,

lines 10 to 35.

BRENNAN J:  But there is no written document emanating

from the Crown?

MR ABBOTT:  No. Mr David, counsel. for the Crown, was reading

from a written document which he had given to

us and this is - - -

BRENNAN J: This is the document on which paee 61 and

following comments?

MR ABBOTT:  Yes. This is why the defence memorandum

refers to comments on the first section of

the memorandum, it being a memorandum in

response to what the defence erroneously

thought would be a memorandum to be handed up.

In fact, the memorandum was read. So, counsel

for the Crown dealt with the assistance that Malvaso had

given to the Crown	in various ways and I need
not read that out.	Then. at page 40, line 15:

On the question of whether or not there is suspension of any sentence your

Honour imposes, the Crown position is that

we stand mute. It is a matter for your

Honour to decide from material before you.

AIT6/6/JM	27	22/8/89
Malvaso

I interpolate, all material; not only the material

which the defence had put, but the material that

the Crown had put. The Crown were putting material

which, according to the authorities, can be

utilized for suspension of sentence. So the

Crown's silence and standing mute was not, "We'll

just say nothing and do nothing that would in

any way support a suspension of sentence. We will

put forward material on which a suspension of

sentence could be made. We will make submissions

that may incline a judge to suspend the sentence.

But if we are asked for our particular view,

we will not give it, whatever it might be."

As to authorities that support the view

that the Crown's submissions could have properly

been used by the learned sentencing judge to

suspend the sentence, I refer to REG V GOLDING

(1980) 24 SASR 161. It is not on our list of

authorities. In South Australia, our leading

case on informers, and those who assist the

Crown, and the principles that are to be derived

from such assistance are set out in GOLDING's case

and the law relating to informants is commonly

referred to in South Australia as "the nrincinles

of GOLDING's case". - -

The fact that the material which was relevant

to the length of head sentence and non-parole
period could also be used on the question of

suspension is specifically dealt with in the

case of BARLOW, which is on our authorities.

If authority be required for the proposition

that matters relevant to the length of head

sentence and non-parole period may be taken into

account a second time, even under the OFFENDERS

PROBATION ACT provisions that then applied, we

refer to the case of REG V BARLOW, (1982) 99 LSJS

and the judgment of Justice Mohr when he said

295.It is near the back of book of authorities.

at page 297, after reciting a number of factors

in which Barlow had given assistance to the

police over the prosecution of a corrupt policeman

named Lacey, the Court of Criminal Appeal said:

The appellant was aged 50 years and

had, apart from his complicity in this

offence, an exemplary character. He gave

every co-operation to the police in

their investigations and in the.result gave

evidence for the prosecution at the trial
of Lacey. His evidence was fundamental to
the nrosecution case. All of these factors

were.to be taken into account in deciding not

only the appropriate penalty but whether or

not a sentence of imprisonment should be

suspended if imposed.

AIT6/7/JM	28	22/8/89
Malvaso

We say that whatever the situation may have been before the learned sentencing judge and whether

it was something like BARLOW's case, or similar

thereto, the situation so far as the applicant

is concerned, in fact got better by the passage

of section 38 of the CRIMINAL LAW (SENTENCING) ACT,

which is in the front of our book of authorities,
which in effect provides that if for any reason - - -

MASON CJ:  Yes, you have made that point.

MR ABBOTT:  - - - the judge wishes to suspend. So that

to return to the memorandum, at page 61 of the

application book, the defence were saying that

the prosecution had not put the full picture

and - I will not read from it - but the defence,

by its memorandum enlarged upon the various

submissions of the Crown that had been mentioned

in brief by counsel for the Crown in the course

of the submissions before the sentencing judge.

Then, as to the reasons why the Crown were remaining

mute, the memorandum most importantly said, at
page 66, line 10:

In view of the attitude of the Crown and of their proposals instructions were taken

from Mr Malvaso and he through his Counsel

informed the prosecution that he desired to

plead guilty.

Then, at page 68, line 5, the concluding remarks: In a very real sense Malvaso was encouraged

to plead guilty to the substantive charge
that he has now pleaded guilty to by the

prosecution. He was encouraged by their

attitude in that it was made clear in the

course of discussions that they would leave

the aspect of a suspended sentence entirely

up to the sentencing Judge without opposition

of any sort and that if there was material

put before the sentencing Judge on which

suspension was appropriate they would voice no opposition to that course being followed.

So, I return to the principle which we say has

infected the Court of Criminal appeal, namely, given the jeopardy that Malvaso put himself in

by doing the deal and having, as it were,

successfully persuaded a sentencing judge to

suspend the sentence of imprisonment, it was

implicit in the bargain that was struck that that

suspension would not be put at risk by any further

activities of the Crown. The Crown did nut it at

risk by their appeal, not by the precise.words

of their appeal, but by the mere fact that they

AIT6/8/JM	29	22/8/89
Malvaso

raised,for the consideration of the Court of

Criminal AppeaL the sentence.

McHUGH J:  But the Attorney-General has a statutory power

of appeal and if he thought it was his duty to

appeal he could not by any agreement lawfully

fetter that power, could he?

MR ABBOTT:  I am not sure that - - -

McHUGH J: It is well established that a public officer

cannot by agreement fetter the exercise of - - -

MR ABBOTT:	Of a Crown.
McHUGH J:	- -- a statutory discretion.
MR ABBOTT:	Even so, sir, my answer to that is that

notwithstanding that the Attorney-General was

obliged to appeal within the exercise of his

statutory discretion, it was incumbent upon

the Court of Criminal Appeal to decline to

entertain it, given the jeopardy on which such

entertaining of an appeal would potentially

place this applicant in by virtue of the

Court of Criminal Appeal considering such an

appeal.

We refer in this regard to a decision

of the Court of Criminal Appeal in New South Wales
in the matter of HAYES, which is in our book

of authorities, where again Justice Kirby, at

page 470 - - -

McHUGH J: That was a dissenting judgment in that case,

though, was it not?

MR ABBOTT:  Yes, I realise that. I recognize that it is

a dissenting judgment but I would not have thought

that what he said about the appellate court's

discretion would have been dissented from by

the majority, if that is an appropriate expression.

McHUGH J: Particularly by me, since I think he quoted me.

MR ABBOTT:  Yes, particularly from Your Honour.

HAYES's case is approximately in the middle

of our book of authorities. The principle is

expressed in these terms - the third bottom line on

page 470:

If the Crown has failed to assist the sentencing judge to avoid error, the

Court of Criminal Apneal will be slow

to increase the prisoner's punishment.

Thus, if the Crown concedes that a

non-custodial punishment is permissible,

the court, on appeal, would rarely interfere:

see Jermyn. The court looks at the case as

AIT6/9/JM 30 22/8/89

Malvaso

it was presented below to the sentencing

judge. Although, as Lee J pointed out,

the Crown in the sentencing process is not

in a position of a contest with the

prisoner, and no hard and fast rules should

be laid down to inhibit its appeals,

ordinary principles of fairness will re9uire

courts to take the conduct of the Crowns

representatives into account.

Then numerous references are provided for that proposition.

GAUDRON J:  But they did take it into account, did they

not, in the Court of Criminal Appeal?

MR ABBOTT:	We say that no proper taking into account by our Court of Criminal Appeal in the case
of this applicant occurred, in that they at no stage considered the question of whether or not there was any discretion reposing in them to embark upon the appeal or not.

( Continued on page 32)

AIT6/10/JM	31	22/8/89
Malvaso

MR ABBOTT(continuing):  The way in which, in our submission,

our Court of Criminal Appeal dealt with this matter

was to say , "Th i s sentence i s too 1 ow . Reg a rd 1 es s

of what is done or agreed or what bargain there was,
we are going to set aside that sentence and so far

as the suspension is concerned, we can't see any

grounds why the sentencing judge would have

suspended so we are not going to suspend it".

BRENNAN J:  As a matter of discretion as distinct from

jurisdiction, why is that not precisely right

once you come to the point of saying that an

agreement between the prosecuting authorities

and an accused cannot bind the court? In other

words, if the court below is duty bound to impose
what is a condigned punishment for a crime and

the jurisdiction of the appellate court is properly

invoked to review the decision given in the court

below, what does it matter that the parties have

reached an agreement as to the way in which they

should conduct themselves when the purpose of the

agreement is and is properly stated to be the

performance of this agreement which they had

earlier reached?

MR ABBOTT: It does not matter at all, Your Honour, because

as I said at the outset or, at least, part of my

remarks, the agreement did not purport to fetter

the discretion of the sentencing judge in any way.

It was still up to him as to whether or not he would

act on the material to suspend the sentence.

BRENNAN J:  Then, what has JERMYN's case and TAIT's case

and so forth got to say to this at all because

which the accused is endeavouring to hold the

those are cases where the Crown and the accused

are at arms length ? Here, the conduct of the

·· Crown.

MR ABBOTT:  We say it is worse, where the Crown has, by

agreement, contributed to the error because, if

one looks at what Your Honour Justice Deane said

in DAVERN V MESSELL about the prosecution being
merely another branch of the courts,and here one
branch of the government has contracted with a

defendant, the defendant has taken up a certain

position in consequence of representations and

yet another branch of the same government is
saying, "Well, we have got an appeal in front of
us; therefore, we are going to proceed with the

appeal non constat whatever you have agreed".

BRENNAN J: Well, your submission then is tantamount to saying

that a court being, as you put it, a branch of

the same government, ought to honour the agreement

A1T7/1/SH	32	22/8/89
Malvaso(2)

which another branch of that government has

made.

MR ABBOTT:  I am not saying necessarily 'should honour";

should at least consider whether in the particular

circumstances it should assume jurisdiction, to

use the words of JERMYN's case.

McHUGH J: Have you looked at AGOZZINO, which is that case

which Mr Justice Kirby refers to in JERMYN?

MR ABBOTT:  Yes.

McHUGH J: That is a case where there was an agreement,

where the Crown agreed that they would not ask for

sentence and the Court of Criminal Appeal of

Ontario, or wherever - it was, said it would be unfair in the circumstances.

MR ABBOTT:  Yes. We have looked at these cases. They were

primarily supplied to us by courtesy of the Crown

and they are to be found in the Crown volume I.

The first case - AGOZZINO?	I am not sure of the
order in which they are - - -

MASON CJ:  There is no need to take us through all the cases,

Mr Abbott.

MR ABBOTT:  No. I do not propose to.

MASON CJ: But, if you want to take us to this particular

case, do so.

MR ABBOTT:  I would prefer to take the Court to MacARTHUR's

case which, ten years on from AGOZZINO's case,

refers to AGOZZINO's case. It is in the same volume

and MacARTHUR's case reads - the reference to

MacARTHUR is (1978) 39 CCC (2d) 158. The second

paragraph of the headnote reads:

Crown counsel having agreed to make

no submissions as to sentence at trial, the

effect of then permitting the Crown to appeal
the sentence would be to permit it to repudiate

the position it took at trial. To permit

the Crown to repudiate its position at trial

is destructive of the orderly administration

of justice, but the Crown will be so permitted

where it can be shown that the public interest

in the orderly administration of justice is

outweighed by the gravity of the crimme and

the gross insufficiency of the sentence.

Now, for present purposes and for argument, we

would be prepared to accept such a principle or

a proposition. What we say is that the Court of

A1T7/2/SH	33	22/8/89
Malvaso(2)

Criminal Appeal had no regard to those competing

interests, if you like, did not in any way take

into account the Crown's silence, the consequences

of permitting the Crown to appeal which, in this

case, were to potentially raise for consideration

of the Court of Criminal Appeal, the sentence as

a whole and, as Justice MacDonald said, at the

bottom of page 159:

It cannot be stated that there is

anything wrong in Crown counsel making a

submission to the Court as to the sentencing

of an accused. In my opinion, where Crown

counsel takes the position that it is not their duty to speak to sentence, they are wasting the time of the Court when, not

satisfied with the sentence, they immediately
appeal sentence. If Crown counsel thinks

that a jail sentence is warranted, he should

indicate to the Court his feelings. However,

Crown counsel should recognize that by recommending a particular sentence they may

find themselves in a difficult position if,

on appeal, they wish to repudiate the stand

taken in the lower Court.

In the present case, Crown counsel is asking the Court to allow him to repudiate the position which he took at the trial, as

he now states that the respondent should

receive a jail sentence. In the KIRKPATRICK

case, Montgomery, J.A., speaking for the

minority, said at p. 339:

In my opinion, such a repudiation by

the Crown of a position, taken by its

representative in charge of a case is

derogatory to the orderly administration

of justice, and we should countenance

it only if an urgent public interest

Then, there is a reference to the AGOZZINO so demanded.

case. So, we say that whilst this is not a case

where the Crown have directly repudiated the attitude

they took before the sentencing judge, they have
not stood up and said, "Well, we agreed to say

nothing about a suspended sentence before the

sentencing judge.	We now want to say something
about it".	The Crown, by their very appeal, have

repudiated the position they took with the applicant.

By their very appeal, they have realized the risk

that they may put at nought the suspended sentence

I:hich the applicant has managed to obtain from

the sentencing judge and we say that the final

words of this judgment are relevant, the last two

paragraphs. The judge said in MacARTHUR's case:

A1T7/3/SH	34	22/8/89
Malvaso(2)

However, I must weigh the fact that the respondent has entered a guilty plea and that

it is now too late for him to ask for leave

to change his plea. His guilty plea was entered

on the understanding that the Crown would

not speak on sentencing and I do not feel

it would be fair to the respondent to sentence

him when he may well have entered a not guilty

plea had he known a jail sentence was being

sought by the Crown. While this case is very

close to being one where the gravity of the

crime outweighs the public interest in the

administration of justice, the benefit must

be given to the accused.	As was said by
Huges sen, J., in the ROY case:	"The Crown

may feel that it made a bad bargain, but the

solution to that must surely be for the Crown

to make no bargains at all".

We say likewise in this case the applicant entered

a guilty plea. It is now too late for him to change

his plea. His guilty plea was entered on the

understanding that if he was successful in
convincing the sentencing judge to suspend,that
thereafter the order of suspension would not be

set at nought. The Crown by their appeal have achieved that and so we say this struck at the

heart of the bargain.

Now, I accept that the bargain does not bind the court but I also submit that the court should look, as a matter of discretion only perhaps, long

and hard before even embarking upon an appeal where

parties have conducted themselves in the way in
which the applicant and the Crown have conducted

themselves in this matter. There is, as I have

said, no hint of any consideration by our Court

of Criminal Appeal of any weighing of competing

interests, any assessment of the matters of discretion

that are set out in the cases,before they embarked

upon a decision, merely that the sentence was

manifestly excessive and that was the end of it. The judgment of the Court of Criminal Appeal

in relation to the suspension is at page 89 of

the application book, line 16:

If the sentence imposed upon Malvaso

is set aside, as I have proposed, it becomes

necessary for this Court to consider the question

of suspension of that sentence.

Then, the Court of Criminal Appeal dealt with what

fell from the sentencing judge in his report where

the sentencing judge said:

AlT7/4/SH	35	22/8/89
Malvaso(2)

"I had no hesitation in construing what

was said to me as constituting an attitude

that the Crown did not oppose such a course".

The Court of Criminal Appeal held that that was

wrong. We say it is correct and for the reasons

set out in our outline of argument; there was not
merely the fact that the Crown stood mute but also

the fact that the Crown made a number of submissions

on which the sentencing judge could have, if he

was so minded and was so minded, suspended the

sentence.

GAUDRON J:  Mr Abbott, is it possible or would it have been

possible for you to have asked the Court of Criminal the considerations you have just put to us in

argument?

MR ABBOTT:  I do not know the answer to that.

GAUDRON J: Well, did you ask the Court of Criminal Appeal

to do that?

MR ABBOTT:	No.
GAUDRON J:	What precisely did you ask them to do by reason of these considerations?
MR ABBOTT:	Not to embark - well, I return to the - the best

summary of that is contained in the outline of

counsel at page 77.

GAUDRON J:  That is 5, second dash?

MR ABBOTT: Five, yes.

GAUDRON J:  And was there a ruling given on that in the course

· · of argument?

MR ABBOTT:

I did not conduct the application before the

Court of Criminal Appeal.

MR DOYLE: Well, Your Honours, no particular ruling was given.

As best I recall, it was not presented as it were

as an issue, "We ask you to revoke the leave".

It was put in the context of the discretion which applies to Crown appeals and so the argument was, "Well, because of the discretion and because of

the circumstances, you shouldn't entertain this

appeal" or "shouldn't review the suspension".

We put it that way, as I recall it.

GAUDRON J:	Thank you.
MR ABBOTT:	So that - - -

AlT7/5/SH	36	22/8/89
Malvaso(2)

BRENNAN J: Mr Abbott, before you resume the even tenor of

your ways, can you tell me whether an appeal under

section 352(2) of the CRIMINAL LAW CONSOLIDATION

ACT is an appeal by way of rehearing?

MR ABBOTT: It is not an appeal by way of rehearing, as I

understand it.

BRENNAN J: It is not? It must be, must it not?

MR DOYLE:  Well, Your Honour, as I understand it - I always

have a little difficulty with the terminology -

it is one of these appeals where one can examine

the factual material before the sentencing judge

and is satisfied that he erred as to the facts,

the Court can intervene; so it is not the narrowest
type of appeal solely on groundsof law but, on
the other hand, it is not simply an exercise afresh
of the sentencing discretion. Error must be

identified be it error of law or error of fact.

MR ABBOTT:  Yes, I adopt that and we say that the error that

was identified, namely manifest inadequacy, was,

in turn, founded on error by the Court of Criminal

Appeal in relation to the matters that I have mentioned

already, principally section 302 of the CRIMINAL

LAW CONSOLIDATION ACT and the increase that that

section provided by virtue of the case of

DUBE AND KNOWLES.

I suppose, in essence, what we say the relevant condition of the bargain was and it did not bind

the Court but, in fact, we say it bound the Crown,

that the bargain was that if we were able to convince

the sentencing judge to suspend the sentence on

all the material that was put forward, from whatever

source, that is from both Crown and defence, the

Crown would accept the suspension and not in any way seek -

that is,. in any way, to upset the suspension.

The Crown, we say, erroneously proceeded to the

Court of Criminal Appeal on the basis that in so

appealing they were honouring that sort of condition

of the bargain but, in fact, as things turned out

when they got the Court of Criminal Appeal, the

Court of Criminal Appeal said to them, "Well, you

are only here on the sentence and non-parole period

but we are going to look at everything" and the

Crown quite properly, as my learned friend will

confirm, resisted the Court of Criminal Appeal doing that and I think the Crown position was,

"We are not here to ask you to do it. In fact,

we say you cannot do it but if you must, you must".

I do not want to purport to quote my learned friend's
exact words but certainly the Crown, consonant

with the bargain which it had struck, did not in

any way seek to encourage the Court of Criminal

AlT7/6/SH	22/8/89
Malvaso(2)	37

Appeal to grasp the aspect of suspension or to interfere in any way with the suspension.

The Court of Criminal Appeal decided on

the issue of suspension as the Chief Justice said

at page 95 of the appeal book:

I cannot find grounds which would justify

in my mind the suspension of the sentence

on Malvaso.

The Chief Justice, at line 3, then dealt with the

role of Malvaso and, at line 10, said:

His co-operation with the authorities

justifies a substantial reduction in the

sentence which would otherwise be imposed, but I cannot bring myself to think that it

justifies suspension.

If, in saying that, the learned Chief Justice is
saying, "I have counted it once in relation to
the head sentence. It cannot be counted again
in relation to the issue of suspension" then we

say he has fallen into error in that regard and

that has resulted in the miscarriage of justice

as well as the other matters.

The Chief Justice went on to say:

To suspend the sentence on that account

would be to allow his co-operation with the

authorities to overwhelm the other very

serious features of the case.

The prosecution, consistent with its

neutral attitude resulting from its deal

with Malvaso, did not make suspension of the sentence a ground of complaint on the

appeal. Nevertheless it is this Court's

responsibility to decide the question for

itself once the sentence is re-opened in

consequence of the prosecution appeal -

not be the Court's responsibility to decide the

It is that sentence in which we say the Court of

question for itself. The Court should acknowledge,

what had happened, acknowledge the ambit of the

appeal by the Crown and consider whether or not
it should assume the responsibility to decide the
question for itself. It is not merely a fact of
a bald responsibility once the head sentence and

non-parole period is up - to use the Chief Justice's

words, "once the sentence is re-opened" that

automatically consideration of the suspension follows.

A1T7/7/SH	38	22/8/89
Malvaso(2)

In our submission, at the very worst for the

applicant, the question of suspension does not

become the responsibility of the Court of Criminal

Appeal, given the present circumstances, unless

and until there are factors such as are shown in

the case as grave and weighty matters which
overwhelm the considerations of double jeopardy

which we say should have applied and should have been considered by the Court of Criminal Appeal.

As I have said, a similar attitude seems to

have been adopted by the other judge who delivered

a judgment of any length, Justice Cox.	He said
at page 98, line 17:

The fact that the Attorney-General, while

appealing against Malvaso's sentence, did
not complain of the suspension creates a

difficulty but no-one has suggested that it

means that the Court's hands are tied.

It was suggested by the applicant's counsel that

the Court's hands were tied but it was not submitted

as I understand it that there was absolutely no

jurisdiction whatsoever but it was certainly

suggested that the Court's hands were tied.

Justice Cox went on to say:

I think the case is too clear and too serious, the disparity between the sentence that was passed and the sentence that should have been passed too great, for the Court to allow the

suspension to remain. For a man to produce

a large commercial crop of cannibis in

pa~tnership with the head of the Drug Squad

and then, even if he has provided very important

Crown evidence, to walk away with the suspended

sentence, would be quite wrong.

McHUGH J:  The whole of His Honour's judgment is not in the

appeal book, is it? How long is - - -?

MR ABBOTT:  Yes, the line that is missing is, "I agree with

the orders that	the Chief Justice has proposed
in each case".	I apologize for that error,
Your Honour.

Whether one considers this, the line of

authorities that deal with the Crown having taken

a position before the sentencing judge and seeking

to raise a position now inconsistent with the position

they took or the Crown standing mute, doing nothing,

but now in derogation of that attitude, by one

means or another, raising for a further consideration

of the Court of Criminal Appeal the issue of suspension, we say it was incumbent upon the

Court of Criminal Appeal to at least have

A1T7/8/SH	39	22/8/89
Malvaso(2)

considered the question as to whether or not it

was proper for them even to have even embarked

upon a hearing and, as Your Honour Justice Gaudron

has perhaps said, to make a ruling as to whether

or not they should have so embarked upon the

hearing. Nothing of that seems to have occurred.

The Court appears to have proceeded, as I have

said, to have ascertained and detected mere

manifest inadequacy and to have proceeded on

that basis to intervene in not only the head

sentence non-parole period but also the discretion

to suspend.	Those are my submissions, if the
Court pleases.

MASON CJ:  Thank you, Mr Abbott. Yes, Mr Solicitor.

MR DOYLE: If the Court pleases, I hand up the outline of

our submissions.

MASON CJ:  Thank you. Mr Solicitor, you may deal at the

outset, perhaps, with the question of leave and

whether there was a grant of leave in the present

case in accordance with the statutory provisions.

MR DOYLE:  Yes. Your Honours, unfortunately the first

knowledge I had of that point arising was when

my friend was on his feet and so I have simply had
to rely on memory and I am not sure how reliable

my memory is. I would like the opportunity over

the lunch break, if I could, to check. All I can

say is that, at the moment, my memory is that I

presented argument in the belief that leave had

been granted. Thinking back, I do think that I

had an understanding that leave had been granted

although I see, looking at the judge's endorsement,

it rather reads to me as though he was referring

the question of leave. But I would need just to

see whether any records that might be available might add to my memory of it. Other than that, I could perhaps make the point that, in my

submission, it is quite arguable that the single

judge had power to grant leave. I do not think

the Court has these sections before it but while

my friend was making this point I looked, again,

at the section to which he alluded, section 367
of the CRIMINAL LAW CONSOLIDATION ACT dealing with

the powers of the single judge. That says:

The powers of the Full Court under this Act

to give leave to appeal -

et cetera. Do Your Honours have that section?

MASON CJ:	Yes.
MR DOYLE:	Your.Honours will see that it does not say "to

give leave to an appellant" and so, while my friend

rightly pointed to the fact that "appellant" was

A1T7/9/SH	40	22/8/89
Malvaso(2)

defined in terms that would only refer to a

prisoner, not to the attorney, section 367 talks

simply of "The powers of the Court under this Act

to give leave".

BRENNAN J:  I see that that section was amended by section 11

of the same Act as inserted 352(2) so, perhaps, that

legislation may throw some light on it.

MR DOYLE:  Yes, it may be, Your Honours. I will certainly

look at that over the lunch-hour but just at this

stage, Your Honours, I cannot say any more than

that, drawing on memory, I think my friend is right.

I think I did proceed on the assumption that leave had been given and, in my respectful submission,

section 367 would appear to empower the single

judge to give leave but I can also see, looking

at the endorsement, that it looks as if he may,

in fact, have referred the issue of leave rather

than granted it but my respectful submission is

that it is hard to believe that had the question

of leave been separately agitated before the Court

of Criminal Appeal, anything else would have been

said that was not said in the course of argument

because the court was submitted very firmly that
the court in the exercise of it discretion should
dismiss or should not in any way touch the question

of suspension and my submission is that the very

same matters which were canvassed on that point

would have been canvassed had the question of leave

been addressed directly by the court or had an

application been made to revoke the leave because

it appears from what my friend says that counsel
for the respondent also was under the belief that

leave had been granted and, in my submission, could

have taken the approach of seeking to have that

leave revoked.

McHUGH .J·:  But, Mr Solicitor, it may have thrown up the point

which does not receive any attention in the judgments and that is the necessity to weigh up the question	of the orderly administration of justice by reason
of the agreement as against the public interest.

MR DOYLE: Yes. Well, in my respectful submission, although

that does not receive attention in the judgments,

the tenor of them and particularly the latter part

of the short judgment from Justice Cox and the

last few pages of the judgment of the Chief Justice,

their tenor is, "Well, this is such a clear case
to us" and, in my respectful submission, it is

pretty clear from Their Honours' judgments that

they thought it was just too strong and, in my

respectful submission, it is going a long way to

say that they would have overlooked the significance

of these issues, particularly as in the very last

A1T7/1O/SH	41	22/8/89
Malvaso(2)

paragraph of our outline as my friend pointed out to the Court a little earlier, we referred to the

fact that there are principles applicable to Crown

appeals that were relevant, we acknowledged, and

we referred to two of the South Australian cases

on the point.

BRENNAN J: Mr Solicitor, there is another point ar1s1ng

under section 367 also and that is whether if it

does cover applications for leave to appeal under

section 352(2) it is a power which can be exercised

ex parte.

MR DOYLE: Yes. Well, again, until my friend mentioned that,

I had no idea that it had been granted ex parte

and I do not dispute what he says. He has probably checked on it but all I can say is, for the moment,

I accept what he says and without looking at the

Criminal Appeal Rules, I cannot at the moment recall

what the power is. I know this was before the

Court in the matter of COULTER when the validity of the rules was under consideration but I just cannot remember offhand what they say but I will

certainly look at that over the lunch-hour as well.

BRENNAN J:	Yes.
MR DOYLE:	But it will not surprise me if the rules in fact

almost overlook Attorney-General appeals. I am not too sure, drawing on memory, that they were updated or revised to reflect the creation of appeals

by the Attorney-General.

BRENNAN J: Perhaps I should just add one other reference and that

is - perhaps you might like to look at it over

the lunch-hour, if there be a lacuna of a technical kind with regard to the institution of this appeal, then some of the observations in NEAL V REG may

fall for consideration.

MR DOYLE:	Yes.
BRENNAN J:	I just mention it so that you can - - -
MR DOYLE:	Yes, I take Your Honour's point, in relation
to the - well, of course, that was the other
way around, of course. It was a question of the
prisoner being given the opportunity to withdraw his application.

BRENNAN J: It was the exercise by the Court without an

application by the Crown to increase the sentence.

MR DOYLE: Yes. If the Court pleases, could I go then to

the outline. Your Honours, perhaps I should just

A1T7/11/SH	42	22/8/89
Malvaso(2)

start on one very short factual matter although

I will have to come back to it and, in my submission,

it is important to be clear as best one can as

to the terms of the arrangement which was made
here and, in the latter part of my learned friend's

submissions, he referred to his recent memorandum

to the judge and, in particular, ~he part of which

is at page 65 of the appeal book - and I do not

think Your Honours would need to read it again

- referring to the Crown preserving "a very favourable

silence".

(Continued on page 44)

A 1 T7 /12/SH	43	22/8/89
Malvaso(2)

MR DOYLE (continuing):  Mv respectful submission is that it

is quite clear from the course of suhmissions before

His Honour Justice Olsson that the Crown attitude

was, "We are silent" and that mv friend was not

entitled to argue that this was a favourahle silence

and if he was drawing on something that was said

bv counsel bv wav of an observation when the

arrangement was being discussed, so be it, but 1n

mv submission the Crown attitude was silence.

Could I as~ Your Honours to loo\ at page 44, about line 22, where Mr David is resoonding to

Mr Abbott's memorandum and he savs:

In relation to o.5 -

that is the page of the memorandum which is at page h)

where there is a hit about favourahle silence, he

savs -

our muteness is muteness, more

favourable than saving something but

that is the situation. It is as

simple as that.

In mv respectful submission, that correctly stated
the position that the Crown attitude was one simplv
of silence and one could not describe it as

favourable silence or the most favourable silence or

put a gloss on it of that nature.	But I will come bac~
to that point, Your Honours, a little later.	Could

I go then to paragraph 1 of the outline and I will

be brief on this, Your Honours, because, as I understand

it, mv friend does not, from what I heard in his

submissions, reallv deny that the appeal is against

the sentence and therefore iliat, as a matter of strict

iurisdiction, the sentence as a whole was before

the Court.

We have referred to the sections of the Act

which were relevant on that point, and I would 1ust

refer in particular to section 153(4) which emoowers

the Court:

if it thin~s t~at a diFferent se~~ence

should have been oassed, quash the

sentence passed at trial and oass such

other sentence warranted in law -

et cetera. In mv submission, the clear scheme of

these sections is that the appeal is against the

sentence and while one's Rrounds mav be confined to

particular aspects of the sentencing iudge's reasoning,

or particular aspects of the sentence itself,

nevertheless the appeal is a~ainst the sentence as

such and the whole sentence is before the Court.

AlTR/1/HS	44	MR DOYLE,	OC	2 7. I'?. I 80
Malvaso(2~

MASON CJ:  Mr Solicitor, it may be convenient now to

adiourn. We will resume at 2.15 pm.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MASON CJ:	Yes, Mr Solicitor.
MR DOYLE:	I think Your Honours would have before you a copy

of Act No. 67 of 1980 and also a photocopy of the

criminal appeal rules. Could I start with the Act -

and this is on the points that we touched on iust

before lunch - the Act of 1980 does not appear to

advance the cause much. Section 9 of that amending

Act is the section that inserted the provision for appeals by the Attorney-General against sentence and then it appears that the amendment to the section relating to the powers of a single iudge, that is

in section 11 and it was an amendment unrelated to

the creation of the Attorney's right of appeal and

so we are left simply with the original wording of

section 367 and my submission that that was ·

encyclopaedic, as· it were, in its scope and it simoly

said the grant of leave to appeal can be dealt with

by a single iudge.

Now, obviously, if that were read having regard

to the history of the matter it was referring only to
appeals by convicted persons well then so be it.

As to the rules, Your Honours, I did not copy the

forms to the rules. I have given Your Honours simply

the texts and I have had to work from my own copy

in the time available and so although what I believe

are the relevant amendments, or all amendments to the

rules are there, this is not an updated set of rules,	but the rule dealing with a single iudge dealing with
applications is rule 25 which is page 4, and that
was substantially amended in - if Your Honours go to
the second to last page of the photocpies you will
see that all but subrule (1) was deleted. So, in
effect, it is now rule 25(1), as it originally was,
and then the other subrules come with that amendment of 1981.

However, I do not think Your Honours will need to

go to it in any detail.	I will iust go on now to make
my other points.	HavinR looked into the matter it does

appear as if the question of leave was simply referred

to the full court. We have had another look at the

file and there is nothing to suggest that it was, in

AlT8/2/HS	45	22/8/89
Malvaso(2)

fact, a grant of lP.ave. Therefore, in my submission,

the question of power to grant leave ex parte does

not arise because leave was not granted. What

happened was the judge referred the question of leave
but due to some confusion which, at this stage, I
simply cannot explain, it seems that everyone was
under the impression that the iudge had granted leave,
both the court, me as counsel for the appellant and

counsel for the respondent.

Therefore, in my submission, the position is that

without leave having been formally granted, an appeal
which required leave was entertained rather than that

leave was granted ex parte and query the source of

how to grant the leave.

DEANE J:  Was this one of those cases where things are done

behind closed doors in terms of granting leave, or

was it an open court?

MR DOYLE: 

No, Your Honour, because leave was not granted, but

the referral was done by the judge in chambers, as I
understand it.

DEANE J:  I have put it badly. If His Honour had granted

leave, rather than referred it, was it one of the cases

where it would have been done without parties being

present? I have in mind the QUILTER sort of case.

MR DOYLE:  Yes. Your Honour, QUILTER related to the powers of

the court itself, that is a court of three iudges.

QUILTER did not relate in particular to the procedure before a single judge. The procedure under the rules

is that the single judge considers the application,
if he refuses leave then the applicant for leave can

understand it is that the single judge stage for those

put in written submissions and it is those written

submissions that are considered by the Court of

applications for leave to be dealt with inter-parties

and then a record of what transpired before the iudge

to go before the court if and when it considers it
in private.	However, as it happens in this case,

it seems the iudge referred the matter in chambers,
and I accept what my friend says -and there is nothing
to suggest anyone was present - did it in the absence
of the parties presumably, one would think, thinking
that as he was simply referring it to allow it to be
argued before the Court of Criminal Appeal there was
no need for him to call on the parties to ask whether

he should refer the question of leave.

Your Honours, in my respectful submission, we

then have to address the question of the consequence of the fact that leave has never been granted by the

court to the Attorney-General to pursue his appeal.

Now, my respectful submission is, first of all, one

AlT8/3/HS	46	22/8/89
Malvaso(2)

can fairly say that while not that precise complaint

could and should have been made by the present appellant,

it is clear from what has been said by my friend that

the present appellant was under the belief that leave

had been granted ex parte and was dissatisfied that

that had been done without the present appellant

being heard and, in my respectful submission, under
those circumstances, it would have been open to

Malvaso's counsel to apply to the Court of Criminal

Appeal to have the grant of leave revo~ed and

reconsidered and, had that been done, presumably

the present confusion would have been clarified and it

would have become apparent that leave had not been

granted.

Secondly, in my respectful submission - and this

is an independent argument - I would submit that the
matters which were canvassed before the Court of

Criminal Appeal were the matters which would be relevant in any event to the grant of leave because I would

submit that in considering whether leave should be

granted submissions would be addressed to questions

such as double jeopardy, the fact that Mr Malvaso

believed after the sentence was given that he was to
be at liberty, the general approach of the court to

Crown appeals and, in my respectful submission, it is

difficult to conceive of an issue which would properly
arise on the question of leave which did not, in any

event, arise on the substantive appeal itself.

GAUDRON J:	But would it not be the case that if the Full Bench was under the same misapprehension that leave had
been granted, the considerations relevant to its
determination of whether it shou 1 d be revoked might
be quite different from whether or not leave would be granted?
MR DOYLE:	Well, in my respectful submission, had - it is a

bit difficult to know how to approach this, but

obviously if the present appellant had wanted to

oppose the grant of leave and had not been heard on

it it could le~itimately have said, "I wanted to be

heard and I was not heard", and that would be very relevant, I would submit, to the revoking of leave.	But putting that aside, that is the failure to hear
the present appellant, which, as it turned out, was not, in truth, a failure to hear because it was ~ust referred, putting that aside, in my submission, we
would be back to all the same issues, namely the
matters which were, in any event, canvassed on the appeal and, in my submission, one cannot identify
matters of any substance that would be relevant to
either granting or revoking leave which were not canvassed in any event on the appeal.

DEANE J:  Except if you take section 302, which was in the

forefront of your argument to the Court of Criminal

AlT8/4/HS	47	22/8/89
Malvaso(2)

Appeal, away, how can one be

confident that they would have granted leave

and that it would not have been within the area?

MR DOYLE:  Yes, but is not that, with respect, Your Honour,

to go really to the merits of the appeal because the

same can be said, leave having been assumed to be

granted, would they, in fact, have allowed the appeal,

if one takes out the error on section 302?

DEANE J:  Well not really in that on a Crown appeal against

sentence that may be of more obvious critical
importance than if you have granteri leave,
identified the sentence to be inadequate and then • II I • f II I h d

saying, We wont inter ere . not. er wor s,

what I am suggesting to you is it may have had

an additional relevance but for their mistake in

granting leave, or presuming leave had been granted,

although I do not know how the effect of that operates

here.

MR DOYLE:  Yes. All I can put in answer to Your Honour is

that, and not pretending any great familiarity with

the process, but in my submission the proper thing
for the iudge would be considering the grant of leave,
or for the Full Court to consider"Is there a fairly

arguable point?" and then, "Are there any reasons why,

even though there is a fairly arguable point, we

should not grant leave~ On the former we would iust
be down to the very matters that are being debated

today, is there an arguable case, and then on the

latter,"Is there any reason why we should not grant

leave?" in my respectful submission, would be again

back to the same matters but, in my submission,

probably constituting a slightly - perhaps I am

seeing it wrongly - but a slightly lower hurdle for

the Crown.

In my submission, one would more readily grant

leave but then ultimately say, "Well, no, applying

the principles which apply to Crown appeals we dismiss

the appeal", rather than refuse leave and not even

entertain full argument on the matter.

BRENNAN J:  If the fact be that no leave was granted, then

where does the _iurisdiction arise to ma 1~e the orders

that were made?

MR DOYLE:	Your Honour, in my respectful submission, the proper approach is that although leave was not granted
this Court should not interfere unless the failure
to grant leave is seen in some way to be productive of iniustice as, in my submission, the matter o~ leave should not be seen as going, as it were, fundamentally to iurisdiction, but should be seen as being a procedural prerequisite to the institution of an appeal and something, the failure of which to do,
does not deprive the Court entirely of iurisdiction.

AlT8/5/HS	48	22/8/89
Malvaso(2)

McHUGH J:  But that is a large proposition because the

effect of it is that a man has been sentenced

to a term of imprisonment where the Court has no

iurisdiction. Appeal, and particularly a criminal

appeal, is the creature of statute and this is a

statutory right of appeal and one of the conditions
of the Attorney-General's right of appeal is that he
b~ given leave by the Full Cour~ which has not been

given.

MR DOYLE:  Yes. Well, Your Honours, this Court in NEAL V REG,

in my submission, does not appear to have considered

t,at that was a matter which, as it were, completely

deprived the Court of jurisdiction, that is the failure

to deal with the application for leave. Of course, in

NEAL it was the complete reverse. Your Honours will

recall that was the case where the sentenced person

s ought 1 eave to a pp ea 1 . During the co u rs e o f the

application for leave it became apparent that the

Court was minded to increase the sentence and then,

without dealing separately with the question of leave,
the Court, in fact, increased the sentence.
Your Honours, the reference to NEAL V REG is (1982),

149 CLR 305. But in that case, Your Honours, the

judgments were couched in terms that the Court should

be punctilious in matters of procedure where they are

as important as they were to the prisoner here, that
is in NEAL, because under the rules, just as under

our rules, the prisoner in NEAL had the right to

abandon his appeal and what he lost there was the

chance to actually abandon the appeal in the light of

the intimations from the Court that if anything

happened on the appeal it was likely to be something

adverse to him.

If I could just turn up the iudgments, Your Honours,

and I am referring in particular to the judgment of
the then Chief Justice, Sir Harry Gibbs, at page 307 -
that is in volume 1 of our photocopies of cases,

Your Honours, and again arranged alphabetically with

one or two lapses. I am referring actually,

Your Honours to the next page, page 308, and about

the middle of the page where His Honour said:	In these circumstances it is right to
insist on a strict compliance with
formality if it is intended to use the
power conferred bys. 668E(3).

And as best I can tell there, Your Honours, the rules

and the procedures were the same as they are here

and His Honour went on to give the reasons whv, and

he said -

AlT8/6/HS	22/8/89
Malvaso(2)

The first is that the law recognizes

the right of an appellant to abandon

his appeal.

So it was not simply a matter of whether the argument might have been cast in a different way,

had the point been identified clearly. He had a

right to abandon it in view of the adverse

intimations and then, secondly, the Court referred

to the entitlement of the applicant to be present

on the hearing of an application for leave: not entitled to be present on the

hearing of an application for leave

to appeal, but is entitled to be

present, if he desires it, on the

hearing of his appeal.

Now, if Your Honours are right, then, in my respectful

submission, there was a far more fundamental reason why the appeal should have been allowed rather than

the reasons that His Honour advanced there, namely
t½at, under the circumstances it was desirable to

require strict compliance with formality because it

deprived the man of a chance to do something that

would have completely averted what was the ultimate

consequence.

In the present case, in my submission, that

cannot be said, if Your Honours accept my premise

that the arguments relevant to the grant of leave

were the same matters as were relevant to the

substantive appeal. So, to the extent that I can,

in answer to Your Honour Justice Brennan, I, as it

were, pray in aid the judgment of the Court in NEAL

V REG, and what I submit is the assumption in that

that this is not a matter which goes fundamentally

to iurisdiction and means that,absent leave, there 1s,

in fact, nothing for the Court to consider, and I

submit that NEAL's case is distinguishable on the

basis that there the procedure clearly was productive

of iniustice because had the issue of leave been

identlfied separately and addressed the man would

have reaJ.ized, "I can _iust withdraw this and prevent

r,v sentence being increased".

The only other point which I can make, I think, Your Honours, is that if Your Honours are against me on this point it would be desirable for Your Honours

to deal with the other noints at issue between the

parties. Otherwise, the matter would presumably go

back to the Court of Criminal Appeal to reconsider

ab initio, but if it came to the conclusion that leave

should be granted, it would then, as it were, still

have its original approach under a cloud with no

indication from this Court as to whether that was a

permissible or proper approach to take.

AlT8/7/HS	50	22/8/89
Malvaso(2)

The only other point I would make is that, in

my respectful submission, if Your Honours get past the

iurisdiction point, there would be nothing in a practical

sense to be gained by remitting the question of leave
to the Court of Criminal Appeal because, in my
submission, there are no other matters which could

be canvassed on that point which have not already

been canvassed.

McHUGH J:	Supposing the Court came to the view that by reason of the mistaken reliance upon the construction of
section 302 which prevailed prior to EASTON's case,
the Court increase the sentence but, without that mistaken construction, it would not have.
MR DOYLE:	Yes, if this matter were remitted?
McHUGH J:	Yes.
MR DOYLE:	Yes, I accept that.  I had overlooked that. Yes,

I can see that is a matter that was not present last

time that could, I acknowledge now on reflection, could

conceivably produce a different result on an application

for leave now. I am sorry. I qualify what I said

to that extent. Despite all that, I would, still,

if the Court in the end considers that was the

approptiate course to follow, ask the Court to deal

with the other matters which are in issue between

the parties.

BRENNAN J: 

With a view to making what ultimate order?

not having been granted the proceedings - that what follmved
was without iurisdiction, then the only consequence,

MR DOYLE: 

Well, if Your Honours take the view that, leave

I think, Your Honours, could be to allow the appeal

and quash the decision but, in my respectful

submission, although technically anything beyond

. that would be obiter when the parties have fully

addressed the issues and when one can say in advance

that the same issues, apart from section 302, are

quite likely to arise before the Court, it would

be a proper exercise of this Court's functions for
it to embark on them because while, as Justice McHugh

says, it might be headed off at the pass on the
section 302 point, if it is not at the leave stage,
then the same issues will arise; is it appropriate

for the Court, in view of the Crown's attitude, to

loo~ at the question of suspension, and so on?

BRENNAN J:  Is there any reason why this Court should not

itself address the quest1on of leave?

MR DOYLE:  No, Your Honour. I think, consistent with my

submissions, there would be something to be said for

that because I have been arguing that there is really

nothing more that could be said, although if the Court

51

Al'I'S/8/HS	22/8/89
Malvaso(2)

is so minded, then I would have to perhaps

put some brief separate submissions, as it were,

addressing the issue of leave in the light of the Court's

~udgment in HOARE AND EASTON. Perhaps I could come

to that at the end of my submissions, rather than deal

with that now.

Your Honours, I was on paragraph 1 of the outline,

and I will iust go through that as quickly as I can. I iust started on that before lunch. That is on the

point that an appeal against sentence is an appeal against the whole sentence. As I do not want to read

from any of the cases in paragraph 1, can I iust make

two or three points about them. CARNGHAM' s case, in

my submission, is relevant in the present case.

That was a case where the court imposed a sentence

of imprisonment but exercised a statutory power to

order that the prisoner be released after serving

part of the term upon giving security to be of good

behaviour, and so very similar to a suspended sentence.

In that case what the Court said was that the

sentence, which was under appeal, comprised both

elements, that is the sentence of imprisonment and

the order for release after serving part of that

sentence and the approach of the Court was one which,

in my submission, is applicable here. What the Court

said was, you cannot meaningfully sever these two

elements; the sentence of imprisonment without the

order for release after part of the time has been
served is a completely different sort of sentence, and

the order for release without the head sentence is

iust meaningless. So the Court applied the test,

which, in my submission, is a practical and sensible

one, that i±: the various elements. so interact, that

to isolate any one of them would be to look at

something either meaningless or radically different,

then you cannot really do that and it is all part of
the sentence and I rely in particular on the judgment
of the then Chief Justice at pages 492 to 493,

referred to in the outline in the judgment of

Justice Aickin at pages 500 to 501. I have also

referred in the outline, Your Honours, to an unreported
case which I do not want to read from, which is in our

photocopied cases,where_ at the very end of an

extempore judgment of the Court of Criminal Appeal it

said, in effect, that when there is an appeal against

sentence it is the whole sentence which is before us;

you cannot, as it were, hreak an appeal up into

separate parts of the sentence, and, finally, a

dictum of Justice Cox in REG V SHANNON - and I have

referred to the particular page there - where

His Honour made the point that you can only have

one appeal against sentence and, although he was

corning at it from a slightly different angle, he said

it does not matter if second time around the grounds

are different. The view expressed was that there can

be only one appeal against sentence.

AlT8/9/HS	52	22/8/89
Malvaso(2)

In my submission, if that were not so, then

that principle itself would be open to be undermined

because it would seem then to be arguable that if you

do appeal a second time on different grounds, or at

least against a different aspect of the sentence,

that really you are bringing what is a different

appeal and you should be allowed to do that. So I

submit, as the first step in our argument, that the

whole sentence was before the Court of Criminal

Appeal, on appeal, even though the Crown's grounds

of appeal were limited to the head sentence and the

non-parole period.

In my respectful submission, the next step then

is to address whether the Court rightly formed the

view that the head sentence and the non-parole period

were manifestly inadequate. It was never contested

by the Crown that the trial iudge was right to allow
a reduction in sentence for the plea of guilty and for
the assistance which had been given but, in my
submission, it is clear when one looks at the

circumstances that the judge did start, as the

Court of Criminal Appeal held, from an unduly low

level and, in my submission, the Court went about its

task there in the correct way. It sought to identify

error. I simply, on that point, refer to the iudgment

of the Chief Justice at pages 83 to 84 and Justice Cox

at page 98. They are the references in paragraph 4

of our outline.

Just on that, the question of error in relation

to head sentence and non-parole period, my learned

friend in relation to this, I think, did suggest that

in some way the Crown may have led to error on the

part of the judge or contributed to error on the part

of the trial judge. Counsel for the Crown did point
out to the trial judge at the very beginning of his
submissions, what was the correct range of sentence.

He referred to the new Act and the increased level of

penalties. I will not read it but it is at page 36

of the appeal book, and my learned friend also

referred in this context to the fact that on appeal

the Crown - do Your Honours want to look at that. It

is in about the middle of the page, I think, line 25.

My friend says it is the maximum - I sai~'rangi'. What

I mean is he brought to His Honour's attention the

fact that the maximum penalty had been increased and

at line 20 there is a specific reference to that.

My learned friend also referred to the schedule

of penalties or sentences which was put forward by the Crown before the Court of Criminal Appeal but, in my submission, that is not a case really of the Crown

chan~ing feet or changing its stance on appeal. If

one wants to say that the range of penalty to which
a ~udge has referred is inappropriate, in my

submission, the context of an appeal - one helpful way

AlT8/10/HS	53	22/8/89
Malvaso(2)

of doing it and with recent changes to the
legislation is to give the Court a schedule of
recent sentences just to make the point that when

one looks at them and looks in particular at the

legislation under which they were passed it becomes

apparent that the sentences were at a level which was
appropriate to the previous legislation and, in my

submission, nothing more than that was being done

and that is one of those things which, as it were,

has to be done if one wants to endeavour to demonstrate

error.

So, my submission is that in relation to the

head sentence and the non-parole period the Court

correctly identified error on the part of the judge. I then go to the question of the decision to suspend

and as I have put in paragraph 5 of the outline, we

still do not argue that the decision to - ~ -

DEANE J:	Mr Solicitor, at page 75 your submissions to the Court of Criminal Appeal in paragraph 6 said that
for this offence the range, apart from legislative
amendments, was two years to four years.
MR DOYLE:	Yes.
DEANE J:	And the Crown then relied on, first, section 302

and, second, the change in maximum penalties to get

that up - the Court of Criminal Appeal accepted the

Crown's submissions on section 302 which we now know

was mistaken. Where does that leave us, if we

were to ta~e the Court as having applied section 302

in the way other cases indicate, we would discount

by, what, one third?

MR DOYLE:  Yes, can I say one could, Your Honour, yes, and I

will come back to that in a minute.

DEANE J:  Which means that on your submission we would come down to four years to eight years?

MR DOYLE:  Yes.

DEANE J:  Then you have this extraordinary case where public

interest raised great considerations for reducing

the sentence. How on that basis could it be an

appropriate case for an appeal court to intervene,

when you are so close to what the ~udge in fact did?

(Continued on page 55)

AlT8/ll/HS	54	22/8/89
Malvaso(2)
MR DOYLE:	Yes.	Your Honour, in my respectful submission,

that is an exercise which should not be undertaken

by this Court. While the Crown did rely upon the

construction of section 302, there is no

indication from the judgment of the Court of

Criminal Appeal what precise role section 302 played

and what weighting was given to what can only be

regarded as the dramatic increase in any event.

DEANE J:  Well, there are two questions there that should not

be elided; the first is, can the Court of Criminal

Appeal sentence be allowed to stand?	Do you
submit it can?

MR DOYLE:  No, Your Honour. Clearly- I would have to

accept that in so far as the court expressly relied

upon section 302 - can I qualify what I said a

moment ago, Your Honour? ~he court clearly relied

upon section 302. Pe do not know the degree to

which it did rely upon it and, therefore, in my

submission, one can say that the process of

reasoning of the court was affected by error and I

cannot realistically argue that section 302 played

no part. Where I would draw the line is in the

exercise that Your Honour may have fores,adowed, that one

can by a process of deduction fill it out, the

section 302 component, and say well, "But for that

this would not have been a case for Crown intervention".

In my submission, the question of the appropriate

penalty absent the impact of section 302 is

something that can really only be addressed afresh

and, in my submission, properly by the Court of

Criminal Appeal.

DEANE J:  But it may be there, may it not, that the fact that

the Crown never got leave to appeal may be of

critical importance in deciding whether we should

.. remit the matter to the Court of Criminal Appeal

when the court has dealt with it without

jurisdiction.

MR DOYLE:  Wel 1., Your Honour, I have already acknowledged

when I initially dealt with that matter I overlooked

the fact that the ground rules for the grant of

say 11s1.nce it was first considered', since it was not	leave have changed since it was first - well, I cannot
considered but, in my respectful submission, if the Court rejects my earlier submission about the
same arguments being addressed then it is proper
not for this Court to follow a line which says, "Well, but for section 302, the amount of increase
appropriate would have been so slight that it could
never have been a proper case to grant
leave". My submission is that the proper thing is
for the Court simply to then remit it to the

AlT9/l/JH	55	22/8/89
Malvaso(2)

Court of Criminal Appeal to reconsider the grant
of leave. So, I hope I am not putting that too confusingly, but my submission is that, putting

it negatively, it is not appropriate for this

Court to say that leave would not have been

granted, or could not have properly been granted,

because removing section 302 from the picture

one could never have argued that this was a case

for leave to be given to the Crown. My submission

is that, just it has to be considered afresh, and

it is a matter then of the weighting that the

court gave then and might give on a future

leave application to the dramatic increase in

penalties in the Act itself.

DEANE J:	Well, what about the approach that if a Crown appeal against sentence is allowed to get into
this sort of a mess, that time comes to say "enough"?
MR DOYLE:	Well, Your Honour, I submit that is a matter

again which is properly addressed by the Court of

Criminal Appeal and I have got no doubt if they

get the chance it will put very firmly to them plus

the further passage of time.

DEANE J:	But here we are, we are now in this Court.
MR DOYLE:	Yes.
DEANE J:	Why should we say instead of "enough is enough", that this can now go back to the Court of Criminal Appeal where the Crown can have another go at applying for
leave and if it gets leave the Court of Criminal
Appeal can then deal with it and this man can remain for
the second time in jeopardy in the meantime?
MR DOYLE:	Because in my respectful submission, an important

matter to consider in that process is the extent
._ to which one considers the original sentence to be

inadequate and the matters Your Honour put to me

would be very powerful where the discrepancy between

the original sentence and what seems to be

appropriate is m::irginaJ.; borderline but, in my

submission, assumes diminishing weight the greater

one considers the discrepancy to be. And, I do not

suggest no weight but, in my submission, diminishing weight and correspondingly one then gives increasing weight to the -what, in my submission, is the

underlying principle that where there is error it is the function of this Court to correct it whether the error is in favour of the sentenced person or

in favour of the Crown; in other words where the

sentence was excessive. But, the Court does have a

responsibility to intervene whichever way the error

goes and while the question of intervention on a

Crown appeal involves factors that are not relevant

56

AlT9/2/JH	22/8/89
Malvaso(2)

to an appeal by a convicted person, it is a matter

of whether in the end the factors which suggest that the Crown appeal should not be allowed are sufficiently weighty to cause one to say, "The

Court will not correct the error".

DEANE J;	Thank you, I follow the way you put it.
MR DOYLE:	So, Your Honours, coming to the question of the

decision to suspend, as I put a moment ago and is in paragraph 5 of the outline, the Crown does not

argue that the decision to suspend was wrong but

it does argue that the Court of Criminal Appeal was

not erroneous in its approach to the matter and

so if the - - -

McHUGH J:  Well, can I ask you about the passage at page 95 which

concerns me, at line 10, Mr Solicitor, where

the Chief Justice says:

His co-operation with the authorities

justifies a substantial reduction in the

sentence which would otherwise be imposed, but I cannot bring myself to think that it

justifies suspension.

And then the following sentence after it. On its

face that appears to be erroneous, does it not?

MR DOYLE:	I am sorry, Your Honour, erroneous on what basis?
McHUGH J:	Well, His Honour is saying:

I cannot bring myself to think that -

co-operation -

justifies suspension. To suspend the

sentence on that account would be to allow

his co-operation with the authorities to

overwhelm the other very serious features

of the case.

MR DOYLE:  But, is Your Honour suggesting that he has made

the error of saying, "This is not a matter relevant

to suspension"?

McHUGH J:  Well, that is one view. The more I read it I

see the force of what you	will probably say is that
he is just saying that in	the circumstances of
the case.

MR DOYLE:  Yes, but weighing it up. In my respectful

submission, one might well expect that had he
regarded it as actually irrelevant he would have

used terminology to indicate that it just did not

AlT9/3/JH	57	22/8/89
Malvaso(2)

go into the scales but that in context this is

a passage which is indicative of a weighing of

things in the scales rather than a decision of

what goes into the scales and what does not.

So, Your Honours, I do for the purpose of the

argument want to deal with the errors which the

Court of Criminal Appeal found in the reasoning of

Justice Olsson simply in support of the submission

that the Court of Criminal Appeal did not err in

its approach to the matter but then I take the

matter no further than that. And, the errors which

the court identified, as I set out in paragraph 6

of the outline, were the inference which could be

drawn from the silence of the Crown and linked to

that the relevance of the Crown attitude in the

pursuit of parity or equivalence between

Mr Malvaso and the man who was called Mr "X".

Now, the first point, Your Honours, the

inference to be drawn from the silence of the

Crown goes very closely to the question of what

was the arrangement between the Crown and the

represen,tatives of Mr Malvaso and, in my respectful

submission, as I put to the Court at the outlet,

it is clear that the arrangement was that the Crown

would be silent and the arrangement was not either one

for favourable silence let alone an arrangement under

which it was open to the judge to infer, as it were,

affirmatively, that the Crown did not oppose
suspension. Now, I accept that those lines

are not always easy to draw but, in my respectful

submission, the judge clearly recognized the

distinction but drew the wrong conclusion. At

page 42, line 10, he said - and this has to be read

in context but I will not delay Your Honours by

reading what preceded:

Now one inference which arises, although

you seek to say that there is no inference

to be drawn one way or other, is that by

its silence the Crown is not arguing against

the proposal being put forward.

In my respectful submission, it really is clear

from what went before that the arrangement was that

the Crown would be silent and that it was not open to

His Honour to draw that inference but it is an

inference which in the end - - -

GAUDRON J:  But, really, it must be, must it not? I mean,

this is perhaps a peripheral point but it must be

open to the trial judge to assume that the Crown

has grounds for not arguing the matter. I mean,

surely the trial judge is not to assume mala fides,

dereliction of duty, incompetence, and if he does not

assume those he must assume that the Crown has grounds

for not arguing.

AlT9/4/JH	58	22/8/89
Malvaso(2)

MR DOYLE:  Well, perhaps I should link what His Honour says

there to the way he finally expressed himself,

Your Honours, which is at page 50A where, at

line 25, he says:

I interpret the Crown silence as

indicating that, having regard to the

special circumstances of this case, it

does not, in fact, object to the course

proposed

and further down the page -

Whilst any Crown attitude is not binding

upon me, I would be slow to adopt a

sentencing strategy which tended, in its

practical effect, to discourage potential

informants -

et cetera. Now, it is a somewhat elusive line

but the Court of Criminal Appeal took the view that

His Honour was really treating it as a case where -

as if the judge had said to the Crown, "Well, not

what is your attitude on this submission,

Mr Prosecutor?" and he said, "Well, nothing to say,

Your Honour". In that situation, in my submission,
that does carry, as it were, a kind of tacit
approval or acceptance that the course foreshadowed

in the submission on which he was asked to connnent

is appropriate. Here, while Your Honour rightly

says the judge could hardly infer either

incompetence or mala fides, namely, that the Crown

stand there while something which they believe is
absolutely out of the question is put to the judge.

Nevertheless, he does seem to have gone that step

further and gone a step from saying the Crown has

simply remained completely silent on the issue to

inferring a degree of tacit approval.

McHUGH J:	But, surely His Honour thought that because of the statement he makes at line 6 on page 50A,
where he says:

Nevertheless, I consider that the court is reasonably entitled to expect assistance from the Crown in cases in which the

defence seeks to identify special

circumstances.

Now this was a very unusual case and it was out of

the question ordinarily to give a suspended sentence

in a case like this and when the Crown says nothing,

surely the judge is entitled to take the view that

the Crown did not object to the course proposed.

AlT9/5/JH	59	22/8/89
Malvaso(2)
MR DOYLE:	Well, Your Honour, two points:	first, Your Honour,

in my respectful submission, he had had the

relevant assistance because the Crown had made quite

clear its submissions as to the help the man had

given. As to the facts, it dealt with them; it

said what he had done, how valuable it was. Now,

beyond that, what the Crown could have said, in my

submission, simplifying it a little, is either, "We

treat the submission for a suspended sentence as a

quite appropriate one in this case", or it could

have said, "Despite the things he did, we submit

to Your Honour that it is an inappropriate sentence",

or simply said, "We say nothing". So, in my

submission, he was not really deprived of any

assistance when one gets down to it. What the

Crown should do to assist the court in a case like

this is make it clear to the court what assistance

has been given and how significant it is. But,

in my submission, to say the Crown is not giving the

court relevant assistance when it then fails to

express an attitude is, I would submit, not really

to the point.

McHUGH J:	Well, if the Crown had said, "We neither support nor oppose a suspended sentence", perhaps that
would make it clearer but, r.ea}. ly, in a case like this
where the Crown says, "We are saying nothing", surely the judge is entitled to form the view that
the course proposed by Mr Abbott had the tacit
approval of the Crown.  Why would you not in those
circumstances?
MR DOYLE:	I would submit if the Crown had just said, "We

are saying nothing", you might but, in this case

where that famous "a rose is a rose is a rose", the

Crown said, "We are saying nothing and nothing and

nothing" and tried to make it clear, Bnd, in my

submission, r i e; ht l y or r..,rrong 1 y, that was the

extent to which it was prepared to go.	It would say
nothing and allow Mr Abbott to put his
submissions - - -

BRENNAN J:	That is just saying, "We have agreed to run dead".
MR DOYLE:	Well, that is another way of putting it, Your Honour.
BRENNAN J:	Well, now, if the Crown has "agreed to run dead",

why? Because they can see that that will be of some

benefit which the applicant is seeking to get and

by performing the agreement they are obviously giving

the judge the indication that they do not mind him

getting it.

MR DOYLE:  Well, 'Y011.:i::- Honour, I would submit that - and

perhaps I am pursuing a pointless refinement - but

that one can distinguish between the Crown saying

A1T9/6/JH	60	22/8/89
Malvaso(2)

"We remain mute and you should infer nothing from

that" and a situation which one can legitimately

infer some kind of tacit approval or acceptance

of the course foreshadowed.

BRENNAN J: The real problem is, of course, that agreements

of this kind are agreements which tie the Crown's

hands in an inappropriate manner because if it was

an appropriate case for the Crown to say something,
they should have said it but they chose not to
because they had already bound themselves by the

agreement and it really gives rise to a very

difficult situation so far as the Court is

concerned.

MR DOYLE:	Yes, I accept that, Your Honour, and in some ways the course of this appeal demonstrates that.
However, without wanting to go into that whole
issue - of course, the question of when and whether
one makes such agreements is in itself a very
difficult topic and there are all sorts of matters for the law enforcement authorities to consioer And
for the Crown also.
BRENNAN J:	But, if the judge, as a result of what happens, takes the Crown's attitude as inferring more than
the Crown would wish the judge to infer, it scarcely lies in the Crown's mouth to complain.
MR DOYLE:	No, Your Honour, with respect, I accept that but,

in my submission, here counsel was at pains -

perhaps Your Honours will say well, he was at

pains to do the impossible, to say, "You are not to

draw an inference from my attitude"but, in fact,

that was what he said to the judge and in the

passage I referred to earlier from, I think,
page 42, the judge recognized that that was what

he was saying. And, in my submission, for the

judge to say, "Well, I know you are saying to me

I am not to drawn any inference from your attitude but

I do", in my submission, that was really, as it were,

turning the process on its head because what was

being put to him was "no inference is to be drawn".

And so I accept it was a very unusual case and it

was iust - the persistence, as it were, of counsel,

in my submission, provides a basis for this point

that he did say in express terms, "No inference to
be drawn from our muteness".

So, Your Honours, I submit that on that point

the Court of Criminal Appeal was right in that
His Honour did err in drawing an inference of tacit

support. Can I give Your Honours some page

references now because I think I have covered what

I want to say on it but there were a few other

pages I was going to refer to c1.nd so I will just give

AlT9/7/JH	61	22/8/89
Malvaso(2)

them without reading them and these are just

passages where attitude of counsel is shown or

the remarks by the judge; page 31, line 35;

page 41, line 30; page 42, line 10; page 50A, line

15; page 50A, line 25 and page 72, line 30.

Your Honours, the other error which, in my

respectful submission, the court correctly

between Mr Malvaso and the man 11X11 who had never	identied was the pursuit of parity or equivalence
come before the court. That man who is an
informer was apparently given an indenmity and so
was not prosecuted. The judge made it clear in his
report to the Court of Criminal Appeal that he had felt it appropriate to strive to achieve a degree of parity; the Court of Criminal Appeal said, "Well,
this is not really part of the sentencing process
when a person never comes before the court. To
strive to achieve parity of treatment is to
misconceive the court's function" and I submit they
were right on that. Therefore, to that stage
my submission is that, firstl½ they rightly found
the head sentence and non-parole period to be
excessive; secondly, they identified errors in the
reasoning in relation to the decision to suspend;
therefore, in my respectful submission, it was subject to the question of Crown appeals appropriate
for them to resentence. And, I would submit, that
in no sense did the court simply approach it, having
identified the error as to the head sentence, that now, without identifying other errors, we resentence.
They identified errors at both stages and only on
that basis did they proceed.

Well, then the question arises whether, having

regard to principles applicable to Crown appeals,
they should not have interfered and we accept that
there are relevant principles here. Your Honours,

I am not going to read from any of those cases in

paragraph 8 of the outline but I have collected them

there because they are cases which indicate that

in the decision of the Federal Court - I think	the principles which perhaps were first expressed
Your Honours Justices Brennan and Deane - in
TAIT's case, have been accepted both in later cases
in the Federal Court and in Courts of Criminal Appeal
in other States. I have put MARSHALL's case right
at the bottom. I did not find a more recent
Victorian Court of Appeal decision but MARSHALL's
case rather suggests some doubt about the
principles in TAIT's case and so I am not sure what
the position is in Victoria and I also refer to
an article by Rineldi there just canvassing generally
issues relating to Crown appeals.

62

AlT9/8/JH	22/8/89
Malvaso(2)

Now, Your Honours, the relevant principles, in

my submission, are first of all that although error

may be shown on a Crown appeal the Court will

not intervene simply because error is shown and,

in particular, that point was made clearly in OSENKOWSKI's case, the South Australian case.

But, in my respectful submission, again it can be

said that to some extent that does no more than

reflect the breadth of the sentencing discretion,

that something that one might regard in isolation

as an erro½ having regard to the broad discretion

which has been exercised, may not warrant appellate

intervention.

Now, the second broad principle in my

submission which can be identifed and which flows,

in particular, from TAIT's case, is that the Court

will decline to intervene even though there is error

if the conduct of the Crown can be said either to
have contributed to error or the Crown has not
done what was reasonably required to assist the
court to avoid error. So, two points which seem to

be linked there: the Crown leading to error or not

doing what was reasonably required to avoid the court

to assist error, and then, another approach or

another principle, if the Crown has led the

defendant to refrain from dealing with some aspect of

the case which might have led to a more favourable

result for him. And, those are the principles which,

in my submission, can be drawn from TAIT's case

and which have been accepted elsewhere. Could I then

endeavour to apply them to the present case? In my respectful submission - moving on to

paragraph 9 of the outline - first of all this is

not a case in which the Crown has changed its

expressed attitude to the appropriate sentence. That

is one basis on which an appellate court might

refuse to allow a Crown appeal. Andcould I refer

very briefly to the decision in REG V JERMYN, (1985)

2 NSWLR 194, in particular at page 197D ~no

Your Honours Tvere read this case this morning.

There the Chief Justice made the point:

The specific matter relied upon by the

respondent is that the Crown, having informed

the sentencing judge that there could not be

seen to be any objection to granting the

respondent a bond, now seeks to assert in

this Court that His Honour erred in so doing.

Now that, in my submission, can be put under the

category of the Crown changing its expressed

attitude and if Your Honours accept by earlier

submissions as to the correct construction of the

Crown's attitude in this case, that has not

AlT9/9/JH	63	22/8/89
Malvaso(2)

happened here. The Crown said to Justice Olsson,

"We are mute on this point, it has remained mute",

and so, in my submission, that strand of

reasoning is not brought into play.

The decision in REG V JONES, which I am not

going to read from, is another case just

illustrating the same approach where the Crown says

something positively, as it were, and then seeks

to depart from that.

Another line of reasoning drawn from TAIT

is where the Crown seeks to advance facts or

arguments which it failed to advance below,	and
could I refer briefly to the decision in

REG V GAMBLE, (1983) 3 NSWLR 356. that is in the

third volume, Your Honour. There were one or two we

missed out inadvertently and one or two which arose

on the amendments. I do not think I need go to

the facts, Your Honours, but, in particular,

at page 358 the point appears at letter E:

Mr Tamberlin QC, who appears for the

respondents, has contended ..... that the

Crown ought not to be heard in the

prosecution of this appeal -

and at letter Fit appears that, some time having

been spent on sentence submissions:

On resumption on the following day the

Crown Prosecutor informed the judge -

what his instructions were, that a non-custodial

sentence was not appropriate and the Crown did not

develop that in any way. However, the court said,
over at page 359 just after letter E:

In the present case, for example, where there has been a lengthy trial extending over some seven weeks, I can see not the

slightest necessity for having expected

that the Crown would canvass again with the

sentencing judge the evidentiary matters

which had been elicited ..... Those matters were

as well known to the sentencing judge as they

were to counsel for both sides. The Crown's

attitude regarding a non-custodial sentence

was stated.

Now again, applying that here, in my submission,

the facts were laid before the judge, the Crown said

what assistance had been given and how valuable it

was and it is not a case where the Crown has

subsequently sought- to advance factual arguments or

put new factual matters before the court so it is

not a case of the Crown doing what was objected to

unsuccessfully there, seeking to advance facts or

AlT9/10/JH	64	22/8/89
Malvaso(2)

arguments which were not advanced below. A third

approach which emerges from the cases, Your Honours,

and perhaps it is not necessary to read from this

case but it is the next case in the outline,

REG V CASEY AND WELLS but the point again is a

fairly clear one. That was a drug case and

there the Crown had led no evidence as to the

dangerous nature of the relevant drug and then on appeal the Crown complained that the sentence was

inadequate and what the court said, in effect, was,

"Well, you may well be right but not having informed
the judge as to the danger of the relevant drug
that was being grown or produced there you can
hardly now complain if the sentence is seen to be

inadequate when one knows how dangerous a drug it was". And so, that was an example of not putting

relevant material before the court.

Now, I submit again that that has not

happened here; one cannot categorize the process
here as being affected by that sort of unfairness

on the part of the Crown. And then the final

approach which can be drawn out of the cases and is
found in both WILTON and TAIT, from neither of

which I wish to read, is a situation where the

sentenced person is prejudiced by some case being

put on appeal that was not put below at all;
perhaps not dissimilar to the one I just instanced;
information about the drugs. Now, in my submission,

nothing has been put by the Crown as to which it can

be said, "Well, Malvaso lost the chance to

counter that". So, I submit, when one analyses the

principles that can be drawn from cases in this

area, it can be seen that this case, in fact,

falls outside them; the Crown took a certain stance,

it has maintained it and none of the particular

factors which have caused the court in other cases

to refuse to correct error apply here.

In substance, it is my submission that my

learned friend's submission really boils down to

could not appeal at all because he seems to accept	saying that having made this arrangement the Crown	that if there was an appeal it would put the whole
sentence before the court and so it really is
implicit in his submission that having said, "Well,
we will remain mute on the question of suspension,
you cannot appeal at all whatever the result because
if you do you bring the suspension before the court".
and, in my submission, that agreement simply cannot
reasonably be construed that way.

AlT9/ll/JH	65	22/8/89
Malvaso(2)

MR DOYLE (continuing):  I do submit as is set out in

paragraph 10 of the outline,and I touched on this

earlie 4 that the Court does have a duty to intervene

to correct error and that there is a counter balance

to be put, to some extent, against what was said

in TAIT's case and later cases that in the end

error which is unduly favourable to a sentenced

person is as much against the broad public interest

as error which is unduly harsh to him. Error which

is unduly harsh to him is both hard on him but

it is also not in the public interest. Likewise,

I submit, error the other way and one does have

to balance always in the end the signifance of

the error which has been made against the conduct,

if any, of the Crown which has contributed to it.

Again, Your Honours, it is not necessary to read the case referred to there, ACERBI, but there

the Western Australian Court of Criminal Appeal

simply makes that point that, in the end, the Court,
if it finds there is error there, cannot simply

say, "Well, even if the Crown has in some way

contributed to this error, we will not intervene".

The Court has a duty to consider the error and

whether it should correct it and in some cases,

hard as it may seem, even if the Crown has

contributed to the error, the Court will intervene

and correct it.

Could I add on that very same point, a reference,

Your Honours, again to REG V JERMYN, (1985) 2 NSWLR 194

at page 204E to G. Your Honour Justice McHugh there

said, in effect,as I understand what Your Honour

wrote - what I have just been putting to the Court -

that even where the Crown has in some way contributed

to error, there will be cases where the Court should

intervene and correct the error.

So, I submit that no error of approach has

been shown by the Court of Criminal Appeal in relation

to the matter. It looked for error in relation
to the decision to suspend.	On my submissions,·

the conduct of the Crown had nothing at all to

do with it. If that submission is rejected, then

nevertheless, there still lies the question of
whether the contribution which the Crown made to
the error was such that, having regard to the
significance of the error, the Court should not

intervene. It is not a case of saying simply,

"The Crown contributed no intervention".

Your Honours, could I go to paragraph 11 and Your Honours, no doubt, will be deeply relieved

to hear I am not going to read f10m any of these

cases but I have collected them there because these

matters have been canvassed quite a bit in the

AlTl0/1/SH	66	22/8/89
Malvaso(2)

Canadian courts and some of the Canadian textbooks

and broadly similar views, I submit, are to be

found in those cases to those which I have been

putting to the Court, namely, that in some cases

the Crown will, as it were, be held to its bargain

and although there is error if the Crown has

contributed to it the Court will not interfere but that in the end the matter still has to be

weighed up and the Court may interfere although

error to which the Crown contributed is found.

Those cases, Your Honours - if I can just identify

them by name - where the Court did allow a Crown

appeal even though there may appear to be a change

of stance by the Crown or an error contributed

to by the Crown were THE ATTORNEY-GENERAL V ROY,

in particular at page 93; REG V DUBIEN - I have

given the pages there and there Their Honours,

in particular, rely on the point Your Honour

Justice McHugh raised this morning that the

Attorney has a statutory power and duty to

consider appealing; REG V WOOD, where the Court

referred to its inability to negate the

Attorney's right of appeal; REG V MOUFFE where,

again, the Crown was allowed to change its

stance.

Could I just also invite Your Honours' attention

in due course to the article by Kaplan at the very

bottom of the page. The Americans, as always,

have gone into this in far more detail than anyone

else but that is a useful article because he, there,

actually considers the impact of agreements at

the sentencing stage when one goes on appeal and

discusses the American approach which has broadly

been to say that unless it is clear from the

agreement that there would be no appeals that

the Court, in effect, will not allow the agreement

to in any way fetter what happens on appeal and

it seems in American will in fact allow the

prosecutor to, as it were, change stance on appeal

unless the agreement clearly indicated that it

did apply at the appeal stage as well as the

sentencing stage.

So, I do submit that there is no error of

approach by the Court of Criminal Appeal.

Your Honours, that leaves two matters, one of them

is the question of the application of the CRIMINAL

LAW (SENTENCING) ACT. I do not think my friend

elaborated on this but one of the amended grounds

of appeal were that the Court wrongly failed to
apply the principles to be found in the CRIMINAL

LAW (SENTENCING) ACT when it reconsidered the sentenced to be i~pb~ed on Mr Malvaso.

My submission as to that is that without knowing

whether the Court had the provisions of the Act in

AlTlO/2/SH	67	22/8/89
Malvaso(2)

mind or and conceding for the moment that it may

not have, that that makes no difference and that

section 10 of the CRIMINAL LAW (SENTENCING) ACT

and section 11 are declaratory of the common law.

In other words, they embody existing principles

of sentencing.

I think Your Honours have those sections in

my friend's book of photocopies, just after the

photocopies of the CRIMINAL LAW CONSOLIDATION ACT.
Would Your Honours mind just looking at sections 10

11? Th~y are about the fifth and sixth pages in that

book. My submission is that neither of these sections

should be seen, as it were, as rewriting from the

beginning the approach which a court takes to

sentencing. Your Honours do not have the whole

Act before you but my submission is when you look through it what you find is that in a number of

procedural matters - that is, sections before
section 10 - changes in sentencing procedures are

made and that in later sections one finds

substantive changes in relation, for example, to

indeterminate sentences, in relation to what I

think are called community service orders, but these

particular sections, I submit, contain nothing

which would not have been considered and make no

statement which could not be made in relation to

sentencing before they were enacted. It would

be surprising if section 10 were intended to change

the law because for a start when one looks at

subparagraph (o), "Any other relevant matter",

that rather implies that the draftsman has in mind

an existing body of principles rather than that

he is, as it were, creating a completely new charter

for a sentencing judge under which the courts will
now have to struggle to establish new concepts

of anything else relevant.

Now, I submit that all of those matters which

are listed there are things which, in the appropriate

case, can be taken into account and Your Honours

will not that it is introduced by: 

Such of the following matters as are relevant.

It does not say "shall have regard to the following

matters" and, again, in my submission, the word

"relevant" suggests that the draftsman has in mind

an existing body of principles.

Section 11 and, in particular, ll(l)(d) which

my friend may particularly have had in mind, in

my submission, was the approach which the Court

took prior to the enactment of this section; that

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imprisonment was, as it were, the last resort and

was not imposed unless such a sentence would be

inappropriate and, in my submission, when this

Act is read as a whole, it can be seen as an

attempt in a number of areas simply to state what

the law is and is not to be read as changing in

a fundamental sense the sentencing principles and

so, for those reasons, even if the court failed
to pay specific regard to its provisions, my

submission is no error resulted and, without

wanting to read from it, I rely upon the unreported

decision of the Court of Criminal Appeal in ADAMI -

that is in the third volume of the photocopies-

where the court dealt with this very submission;

namely, that sections 10 and 11 had not altered

in any way the principles of sentence and the court

held that it had not. That is the second judgment

in that volume 3, Your Honours; Court of Criminal

Appeal, 28 July 1989.

Your Honours, I do not think it would be

helpful to go to the second reading speech in this

case although it is with the materials. In my

submission, this probably is one of those cases
where, really, to go to the speeches would be to

try to decide what the words meant, rather than

to identify a particular mischief that the

draftsman was aiming at. My submission is the

terms of the sections are relatively clear.

That leaves me, Your Honours, finally to come

back to the question of leave and I take it the

issue is whether there is really any prospect of

leave being granted once the error in relation

to section 302 is corrected and, therefore, whether

there is any point in remitting the matter to the

Court of Criminal Appeal. I think in substance,

Your Honours, I have said most of what can be said

on that in answer to some questions that came

subsequently.	My submission is that it is not
clear from the judgments the extent to which the

court was influenced by the new level of penalties

as against section 302 but while section 302 permits

the Court to increase the sentence by up to one

half, the court has said that that is not an

automatic thing and that one cannot, as it were,

reconstruct the process by mathematically taking

one half from what the court did and then saying,

"Well, that is what is would have done were it

not for the impact of section 302".

In my submission, especially in a case like this where there were so many factors which were

brought into play in the seHtencing process it

would be wrong to make that assumption and, therefore,

I would submit that there would still be a quite

arguable case for leave to appeal being given,

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even if approaching the matter on the basis nf

this Court's decision in HOARE AND EASTON and

simply relying upon the dramatically increased

range of penalties.	They are my submissions,
if the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Yes, Mr Abbott.

MR ABBOTT:  If I could reply to a couple of matters. The

article by Kaplan that my learned friend referred

to on his list in item 11, Sentence Recommendation

Commitments, the only matter that I can add to

that is that there is one decision in Australia

which has considered agreements made between Crown

and defendant and that was an agreement not to

prosecute in exchange for information. It is

Victorian case of GORGIATIS, ( 1984) VR and the

effect of that decision which I do not have wit~

me is that such agreement should be beneficially

construed in favour of the citizen with whom it

is made. It seems to be a different approach from

that adumbrated by Kaplan.

BRENNAN J: Where do we find the article by Kaplan? Is it

in the materials?

MR DOYLE:  It is in volume 2 of our photocopies, Your Honours.

Volume 2 is all articles and I assume - - -

MR ABBOTT: The second-half of volume l, is it not? Yes,

there is a divider in our volume and it may be

in the second-half of volume l, one finds it.

BRENNAN J:  I see.

MR DOYLE: It is in volume 2, about three-quarters of the

way through and it is actually entitled, "Where

Promises End, Prosecutorial Adherence" et cetera.

Would Your Honour like my volume because it - - ~

BRENNAN J:  No, it is right. We will find it sometime,

thank you.

MR DOYLE:	Well, if Your Honour cannot find, we would be happy
to provide it.
MR ABBOTT:	As to the matter of leave, we say that either there

was no leave and, therefore, no jurisdiction or leave
was purportedly granted but ultra vires, the single

judge and no jurisdiction. As to the argument put

by my learned friend that these matters were

canvassed in any event, in our submission, the

question of an application for leave and the

matters that are relevant on consideration of such

application are a far different cry than the

application for the sentence to be held to be

manifestly inadequate.

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MR ABBOTT (continuing):  The Court of Criminal Appeal on

the sentence appeal proper was entitled to

disregard in the sense of not referring to any

arguments put on the substantive appeal but

would not be so entitled on the leave application

if it had been made notwithstanding they may

have been the same arguments and, indeed, may
have had to deal with them in a different way.

As to the case of NEAL, referred to by my learned friend, in our submission, that is authority for the proposition that leave, or lack of, does go to

jursidiction and we rely upon the words of

the former Chief Justice at the same page that he

referred to at page 308. Sir Harry Gibb said:

In such cases there should be a formal

grant of leave to appeal so that the
applicant has a real opportunity to

exercise his rights before the appeal

commences.

In our submission, we should have been given a real opportunity to exercise our rights to see if an appeal would commence.

Finally, as to the question as to whether or not if the Court acceded to some of our submissions

the matter should be remitted to the Court of

Criminal Appeal, in our submission, this should not

happen. One matter which my learned friend has not

mentioned is that there is a bill before our

Parliament which purports to substantially change the law in relation to REG V DUBE AND KNOWLES and

REG V HOARE AND EASTON. I have a copy of the bill,

Do you have any objections if I hand it up?

MR DOYLE:  I am not sure, with respect, that I object, not sure what point my friend is going to make. I am

MR ABBOTT:  Well, the point I want to make about it is that

if this bill is passed it would be seen that the

jeopardy in which my client would be placed would be

quite extraordinary and unusual in that the purport
of the bill is to render the decision of the

High Court in REG V HOARE AND EASTON of no effect

and to restore the decision in DUBE AND KNOWLES.

MASON CJ:	But, would it apply to this case?
MR ABBOTT:	Well, that is a matter, no doubt, that would be

referred to this Court in due course. The point of

all this is that if this matter is remitted back to

the Court of Criminal Appeal, given the legislature's

intention to legislate in the way in which it does

intend to legislate -and I make no comments about the merits or lack of them in relation to legislation - it

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can be clearly seen that there would be potentially

no end to the litigation involving this applicant.

Now, I would invite the Court to have a look at

the bill only for that purpose and for that purpose

only to see that - - -

MASON CJ:  No, the Court is not disposed to receive a copy

of the bill, Mr Abbott.

MR ABBOTT:	Yes, if the Court pleases.
MASON CJ:	The Court will consider its decision in this

matter.

MR ABBOTT:	I make application for bail.
MASON CJ:	Yes. What do you say about that, Mr Solicitor?
MR DOYLE:	I have got no objection to that, Your Honours,

that has been canvassed before a single judge and I
cannot think of anything else that would arise on

this occasion and the decision was to grant it then

and so I do not oppose it now.

MASON CJ: Well, now, what order do you want made? That the

applicant be admitted to bail on the same terms and

conditions as his previous bail?

MR DOYLE:	Yes, if Your Honour pleases. Well, there would have to be some adjustment because one of the terms
required him to surrender his bail at the conrrnencement of the hearing but subject to that
we would be content with bail on the same terms; that
was paragraph 10 of the order that was made previously.
MASON CJ:	Where do we find that order?
MR DOYLE:	My friend has just handed to me a copy of it.

· · C an I provide that to the Court?

MASON CJ:  Yes. What I would suggest, Mr Solicitor and Mr

Abbott, is that you work out the terms of the

consent order relating to bail and present it to

the Court so that the Court can make it either at
the end of the next case or before the Court

adjourns this afternoon.

MR DOYLE:	If Your Honour pleases.
MASON CJ:	The Court will consider its decision in this

matter ..

AT 3.22 PM THE MATTER WAS ADJOURNED

UNTIL LA'1ER THE SAME DAY

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UPON RESUMING AT 4.40 PM:

MASON CJ:	Yes, Mr Abbott?
MR ABBOTT:	I rise in this matter to hand up a copy of the

order.

MASON CJ:	Well, I already have a copy of an order which I assume is the one that you have unless - - -
MR ABBOTT:	Yes, it is, Your Honour.

MASON CJ: - ..; - the Solicitor has handed one in that is different.

MR ABBOTT:  No, I hope not. Yes, we apply for bail on the

terms as set out in this order.

MASON CJ:	And you agree to that, Mr Solicitor?
MR DOYLE:	If the Court pleases, yes.
MASON CJ:	Well, the Court will, by consent, make an order

and I will read out the terms of the order.

This Court doth order that bail entered into by

the applicant before the Sheriff of the Supreme Court

of South Australia on 27 April 1989 be continued until

the determination of this application for special

leave to appeal to this Court on the following

conditions:

(1) that the applicant reside at lot 100, Murray Road, Paracombe in the State of South

Australia;

(2) that the applicant report to the officer

in charge, Holden Hill police station on Monday and

Friday of each week between the hours of 8.00 am

and 12.00 noon;

(3) that the applicant agree to forfeit to the

Crown the sum of $10,000 if he fails, without proper

excuse, to comply with the terms of this order;

(4) that the applicant lodge with the Sheriff

of the Supreme Court of South Australia the sum of

$10,000 in order to secure payment of the monetary

forfeiture agreed to in condition (3) hereof;

(5) that a guarantor agree to forfeit to the

Crown the sum of $10,000 if the applicant fails,

without proper excuse, to comply with all the terms

of this order:

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(6) that the guarantor lodge with the Sheriff

of the Supreme Court of South Australia the sum of

$10,000 in order to secure payment of the monetary

forfeiture agreed to in condition (5) hereof;

(7) that the applicant not leave the State of

South Australia;

(8) that the applicant not apply for a

passport;

(9) that on the date to be fixed by notice to

application will be delivered by the Court, he surrender himself to the Sheriff of the Supreme

him or his solicitors by the Registrar of the High

Court at 10.00 am in the forenoon to serve the balance of his sentence then remaining unserved

in accordance with a warrant of commitment pursuant
to which he is confined at that time if so ordered
by judgment of this Court or such other order as

the Court deems fit.

AT 4.42 PM THE MATTER WAS ADJOURNED SINE DIE

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