Markarian v The Queen
[2004] HCATrans 329
[2004] HCATrans 329
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S600 of 2003
B e t w e e n -
ANTHONY VASKEN MARKARIAN
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 3 SEPTEMBER 2004, AT 10.02 AM
Copyright in the High Court of Australia
MR A.C. HAESLER: May it please the Court, I appear with my learned friend, MS R.W. BURGESS, for the appellant. (instructed by Legal Aid Commission of New South Wales)
MR R.D. COGSWELL, SC: May it please the Court, I appear for the respondent with my learned friends, MR G.E. SMITH and MS J.A. QUILTER. (instructed by Solicitor for Public Prosecutions (New South Wales))
GLEESON CJ: Yes, Mr Haesler.
MR HAESLER: At issue here are orders of the New South Wales Court of Criminal Appeal quashing a sentence imposed at trial by Judge Hosking of the District Court of that State and the resentencing of the applicant. A sentence of two and a half years with a non-parole period of 15 months became, after the intervention of the Court of Criminal Appeal, a sentence of eight years with a non-parole period of four and a half years. Instead of being released to parole on 17 October 2003 the appellant is now eligible for consideration of parole on 17 January 2007.
The orders of the Court of Criminal Appeal to quash the sentence at trial and to resentence the appellant were supported by the reasons for judgment of Justice Hulme. It is the appellant’s contention that the orders themselves indicate sufficient and sufficiently exceptional error to justify the intervention of this Court but it is the reasons and reasoning of Justice Hulme, with whom Justice Heydon and Acting Justice Carruthers agreed, that raise issues of principle and general importance relating to sentencing methodology and how a court is to approach the task of sentencing an offender.
Our principal contention so far as the appellant is concerned is that Judge Hosking did not err. His decision was supported by evidence, principle and authority and his conclusions were reached by the appropriate application of that principle and authority.
HAYNE J: So you would seek to challenge the intervention of the Court of Appeal, not simply the resentencing?
MR HAESLER: Yes, your Honour, in the sense that in this case ‑ ‑ ‑
HAYNE J: I must say I had not read your grounds as encompassing that. I had read your grounds as going only to resentencing, not to whether the sentence below was manifestly inadequate.
MR HAESLER: The problem we have with the process that was undertaken by the Court of Criminal Appeal is that there was no explicit finding of either manifest inadequacy or error of principle, in our submission. What the court proceeded to do – through Justice Hulme’s reasoning process – was to say the reasoning of the primary judge failed to give weight to proper principle. He then proceeded to an exercise in resentencing and it is that exercise in resentencing that we seek to challenge because it displays three significant problems.
HAYNE J: I understand that there is a challenge about that last step but are we concerned to inquire about whether the discretion, the sentencing discretion was reopened?
MR HAESLER: It is essential that we do, your Honour. The first stage, however, is because of the way the judgment of the Court of Criminal Appeal was determined.
KIRBY J: Justice Hayne’s question is important for the disposition of the matter in the event that you can show that something wrong happened. In your orders that you seek at page 109 you ask us to set aside the Court of Criminal Appeal’s orders and then you say:
Such other orders as the Court sees fit.
But Justice Hayne’s questions go directly to the heart of whether this Court would say we think it was wrong for the Court of Criminal Appeal to enter upon the exercise at all because no error was shown, in which event one restores the order of the primary judge, the sentence of the primary judge, whereas, if one either accepts or finds that there was justification and error in the Court of Criminal Appeal finding that permitted it to unlock the door of appellate review then presumably we would just send it back to the Court of Criminal Appeal to exercise its own discretion correctly.
MR HAESLER: I recognise the importance of Justice Hayne’s question in that regard and we would not be seeking a remitter to the Court of Criminal Appeal but orders that the appeal to the Court of Criminal Appeal be dismissed which would have the effect of restoring the decision of Judge Hosking.
KIRBY J: But does that not then highlight Justice Hayne’s question and require that you seek leave to amend the notice of appeal to add a ground challenging the intervention by the Court of Criminal Appeal in the sentencing exercise at all. You have to effectively say that the Court of Criminal Appeal erred in finding error to justify its substituting a sentence for that imposed by the primary judge, do you not?
MR HAESLER: If that is required for abundant caution we would seek to do so, your Honours.
KIRBY J: It is really not abundant caution. It is a question of whether you have – if I can be so rude as to say so – a one‑stage or a two‑stage approach to this appeal. Are you saying that there was error in opening the door and if there was no error in opening the door there was then error in disposing of the appeal in the way it did, or just that there was error not in opening the door but in disposing of the appeal as it did. It is quite fundamental, really, and this Court has pointed out on a number of occasions, specifically in respect of the Court of Criminal Appeal Western Australia.
MR HAESLER: Yes. The most recent that I am aware of is the case of Dinsdale v The Queen. Your Honour, the answer to the question would be yes, we would be seeking to amend, if necessary, the grounds and your Honour has indicated it would be necessary to challenge the decision of the Court of Criminal Appeal to intervene and resentence the appellant.
GLEESON CJ: Could you formulate the amendment?
MR HAESLER: Sure. I would formulate it in those terms, that the Court of Criminal Appeal erred in intervening and finding that the – if you will just excuse me for a moment, I have an aside. The problem I have is that the finding of error is implicit rather than explicit in the court below, but the Court of Criminal Appeal erred in intervening and resentencing the appellant. That would be sufficient.
GLEESON CJ: Do you oppose that, Mr Cogswell?
MR COGSWELL: No, your Honour, subject to any opportunity – we have come ready to meet this, provided I have the opportunity.
GLEESON CJ: You have that leave. You will need to file a formal document.
McHUGH J: Mr Cogswell, while you are on your feet, I have just noticed that one of the persons who gave a reference to this appellant is the deputy mayor of Warringah Council, who is my sister-in-law, and who was the teacher of this appellant, and also I notice in a reference it says he was a family friend. Are you ‑ ‑ ‑
MR COGSWELL: Councillor Julie Sutton?
McHUGH J: Yes. Have you any problems with ‑ ‑ ‑
MR COGSWELL: I have no problem with that, your Honour.
McHUGH J: Mr Haesler, do you have any problem?
MR HAESLER: I have no problem with that, your Honour.
GLEESON CJ: Mr Haesler, one question that is raised by your application is that if your primary submission is that the Court of Criminal Appeal erred in finding that the sentence imposed by Judge Hosking was manifestly inadequate – and, if I may say so, they obviously did find that the sentence was manifestly inadequate because they said the sentence they imposed was the lowest that could ‑ ‑ ‑
MR HAESLER: Was the lowest that could be appropriately applied.
GLEESON CJ: ‑ ‑ ‑ reasonably be imposed, then that might give rise to, at least in some minds, a reconsideration of the grant of special leave to appeal.
HAYNE J: For my own part, at least on that ground, where a question of manifest excess or inadequacy is concerned, I hesitate for this Court to become involved in the assessment of that question. I do not say we never should, but I think it is a matter, for my own part, where the Court must hesitate before embarking on such a general question as is proposed by manifest inadequacy in this case, or, in other cases, manifest excess.
MR HAESLER: I can appreciate and understand the concern that your Honour has just expressed.
HAYNE J: The principal complaint I had understood you to make was that the process of resentencing had miscarried. It miscarried in a number of ways, including the significance attached to maximum.
MR HAESLER: The court came to a conclusion, as the Chief Justice has pointed out, of manifest inadequacy, but they came to that conclusion by virtue, we say, of the reasoning process which was adopted to come to the alternative sentence. It is the approach that the court below adopted to resentencing which led to them reaching their conclusion that no other lesser sentence was warranted. Instead of following what I might call the traditional approach of, “Is there error or manifest inadequacy? Should we then exercise a discretion to intervene?”, then proceeding to resentence, the court below proceeded pretty well straight to resentence. Having formulated that fresh sentence and come to the conclusion that no other lesser sentence was warranted, that then made implicit or perhaps explicit the other two findings which are normally the first two stages, to adopt Justice Kirby’s approach, to the general consideration of a Crown appeal.
Now, that creates perhaps a problem for me rather than a problem for the Court in terms of the way Justice Hayne has formulated it, but it is primarily our response to the way the Court of Criminal Appeal approached this Crown appeal that we say reveals that particular error that is concerned with the amended ground, if I may use that term, because they did not proceed in the traditional manner.
GLEESON CJ: Yes, well you have that leave. You will need to file a formal document, that is, an amended notice of appeal. You can attend to that at lunchtime. The case may be finished by then but you can still attend to that ‑ ‑ ‑
MR HAESLER: We can attend to that immediately we have an opportunity, your Honour.
GLEESON CJ: Yes.
MR HAESLER: The reasons set out by the Court of Criminal Appeal, we say, justify the intervention of this Court. It is Justice Hulme’s mathematical approach to the process of resentencing which, we say, justifies the intervention of this Court.
KIRBY J: Is it at the heart of your complaint about Justice Hulme that he said that the starting point is the maximum which is fixed by Parliament, and that that is the maximum which, by definition therefore, is fixed by reference to the worst conceivable case, or the most serious case?
MR HAESLER: Yes. It is a number of ways that ‑ ‑ ‑
KIRBY J: Well, why is that a wrong approach? I mean lawyers love to look at what judges say, but if we think of it in terms of principle the law in our country is made by Parliaments and if Parliaments fix a level as the maximum, and if that represents the level that is appropriate by definition to the worst possible case why is that not the proper starting point rather than what other judges have been doing in infinitely differing circumstances?
MR HAESLER: Firstly, because the maximum penalty, particularly in a case such as this, may relate to a vast array of different offences. We did not provide it to the Court in the bundle but section 25(2) of the Drug Misuse and Trafficking Act which was the principal charge here - I have copies for your Honour - but:
A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity –
So of itself it concerns both actual supply and, as here, knowingly concerned in the supply. The point was made by this Court perhaps best in the decision of Ibbs v The Queen (1987) 163 CLR 447 where ‑ ‑ ‑
GUMMOW J: Before we go to that, Mr Haesler, this was the prosecution appeal, was it not? This was a Crown appeal?
MR HAESLER: It was, your Honour.
GUMMOW J: Prosecution appeal, I should say. Is there any adversion to that fact in this judgment?
MR HAESLER: No, there was an error in reference to section 6(3) of the Criminal Appeal Act 1912 when, in fact, it is under section 5D of the Criminal Appeal Act.
KIRBY J: I thought that by the reference to fixing the lowest possible sentence, is that not part of the formulary that is used for Crown appeals or prosecution appeals? Does that not indicate ‑ ‑ ‑
MR HAESLER: That indicates that they had reference to the relevant principles, principles which were set out by this Court.
KIRBY J: But it is only indirectly; there is no reference to the cases and the authorities. It is a pretty standard fare in the Court of Criminal Appeal.
MR HAESLER: There was indirect reference to some of what we have set out in the written submissions as the fundamental principles of courts in dealing with Crown appeals, the notion of “double jeopardy” and the notion ‑ ‑ ‑
GUMMOW J: Where does that find any reflection in the reasons? It does not. It finds no reflection in the reasons.
MR HAESLER: Well, it is referred to in the reasons of the Court of Criminal Appeal at the very end of Justice Hulme’s decision.
GUMMOW J: I know that, but beyond the inference in paragraph 56 on page 105 ‑ ‑ ‑
KIRBY J: And paragraph 2, where the opening words are “the Respondent to this Crown appeal”, but there is not the sort of ‑ ‑ ‑
MR HAESLER: It is not an exposition of the ‑ ‑ ‑
KIRBY J: It is not the exposition one is looking for; it is the attitude of mind which is really central to this type of appeal, but it may be that because Justice Hulme would sit in the Court of Criminal Appeal quite regularly and because that is just a standard principle that he did not think it necessary to elaborate that in his reasons.
MR HAESLER: Yes, we take issue ‑ ‑ ‑
KIRBY J: It does leave us with the uncertainty as to whether his Honour had in mind all of the cautionary words of this Court concerning the approach that is to be taken to prosecution appeals.
MR HAESLER: Well, it is certainly the applicant’s contention that Justice Hulme failed to have what we have called in our written submissions the slightest restraint or exercise the slightest restraint in the resentencing process. That is a restraint which is fundamental in the exposition of relevant principles by this Court in relation to Crown appeals, principles which are generally adopted by the New South Wales Court of Criminal Appeal.
Now, his Honour did note, as Justice Gummow has pointed out, at the very end of his decision that he had regard to double jeopardy and that this should be the lowest sentence, but he then had regard to, as a check I would suppose, the Judicial Commission’s statistics which indicated that no higher sentence had to that point being imposed so far as the statistics were concerned for a person knowingly concerned with the supply of this drug in the New South Wales courts. So we say that he may well have noted the concepts of judicial restraint, to use that terminology, but he did not apply them.
The passage in Ibbs v The Queen I wish to take your Honours to can be found at page 452. It is in the joint judgment, and at about line 4:
The inclusion of several categories –
in this case it was a sexual assault –
of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.
We say that that principle is applicable to an offence pursuant to section 25(2) of the Drug Misuse and Trafficking Act (NSW) that although a maximum penalty has been fixed by Parliament that maximum may not necessarily apply to the facts of every case which comes before the Court and there may be some categories of that offence which may never attract a worse case epithet. One might in the drug cases consider that a principal in a massive drug supply may well attract the maximum whereas a courier or a chauffeur may not ever be considered for that maximum.
So although Parliament fixes the maximum penalty that maximum penalty is not, we say, a measure of the objective gravity of the particular offence. What the maximum penalty does is set the limit that Parliament imposes or allows for the imposition of a custodial penalty. Of course, where a maximum imprisonment or period of imprisonment is imposed one can also consider non‑custodial options and what it says is that this is the maximum a court might impose as opposed to the New South Wales section 10 bond, which is the minimum penalty that might be imposed. To use the maximum as a measure of objective gravity and as a starting point, misinterprets, we say, comments which are often made by courts and that is that the sentencing court must have regard to the maximum fixed by Parliament.
KIRBY J: I suppose my question arose out of the fact that one sees in both popular and academic discussion of sentencing principle the suggestion that courts are too soft and Parliament has to constantly up the ante to make sure that courts impose sentences which the Parliament considers to be appropriate and that, therefore, for judges to take what Parliament has said as the starting point may not be such a wrong principle because the alternative may be attempts to have fixed sentences or sentencing grids or guidelines that make sure that higher sentences are imposed.
MR HAESLER: I would caution against any court, even this Court, trying to second‑guess the political process and forestall imposition of some type of penalty from Parliament.
McHUGH J: I remember seeing a judgment of Justice Sheller some years ago in which he examined the statistics and showed that for a particular offence, I think it was, not generally, that the median sentence was under the median for the offence, that is to say, judges were giving less. That is like drivers, 70 per cent of drivers say they are better than average drivers and ‑ ‑ ‑
MR HAESLER: The New South Wales Court of Criminal Appeal looked at this particular aspect when it came to formulating what they called the guideline in the case of R v Henry where they analysed the sentences which were being handed out by the courts for armed robbery and then formulated a guideline, but even when they formulated the guideline it was significantly less than the maximum penalty for armed robbery in New South Wales and it is a recognition of that. The maximum penalty is generally remote from the levels of sentence normally imposed in practice. In the written submissions we have given that quotation which is from Thomas on Sentencing, 2nd edition.
KIRBY J: I suppose the other factor is that the maximum penalty is that which is set objectively for the offence and that it cannot of its nature take into account the so-called subjective or personal factors which courts have to take into account in fixing the sentence which is appropriate in the particular case.
MR HAESLER: That is correct, but it also – the point I was making earlier – fails to take into account that offences themselves are infinitely various and may not always be capable of attracting a worse case epithet. Ms Burgess reminds me, of course, that most cases are not in the worst category. There are also offences – and it strays from the Drugs Misuse and Trafficking Act – where offences have a maximum penalty which is, particularly in New South Wales, historic rather than based upon any serious consideration by Parliament.
I understand the Victorian Parliament tried to put some rationality into sentencing about a decade ago, but in New South Wales we are still stuck with the Crimes Act 1900, and you have offences such as break, enter and steal, which carries a maximum penalty of 14 years, and malicious wounding which carries seven. On any objective assessment the breaking of someone’s leg would have to be more serious than reaching in a window and stealing an apple pie, which would still constitute break, enter and steal.
So while there is a maximum which sets the range within which a court may sentence a person, that maximum can have a variety of applications when it comes to the court saying, “Well, I consider the maximum penalty for the offence”. This Court in Baumer v The Queen 166 CLR 51 recognised that where a Parliament had recently increased a sentence that could be interpreted as a signal from the legislature which the courts would have regard to, but in cases where the maximum penalty has been fixed, that is too inexact a measure from which to start a sentencing calculation.
Justice Hulme referred to a decision of R v Peel [1971] 1 NSWLR 247. I am not going to quote from it, your Honours, but that was a case where the maximum penalty for large amounts of cannabis had been increased and the court there found that it was inappropriate, given the objective gravity of the offence and the maximum penalty, to impose a bond, and the legislative intention was made clear, but it is not a statement of principle which allows for a court to start at the maximum and work down when it comes to a sentencing calculation, nor is it authority for the proposition that there should be a sentencing calculation at all.
The principal error, we say, that was committed by Justice Hulme for the Court of Criminal Appeal appears at page 99 of the appeal book, paragraph 37 of his Honour’s reasons. He took, we say, an assessment of what a worst case would be without any reference to this offender’s objective circumstances, and that is a crucial distinction.
KIRBY J: This offender’s so‑called objective circumstances, not the so‑called subjective standard or the circumstances of the case.
MR HAESLER: He took into account ‑ ‑ ‑
KIRBY J: Is that not the way Courts of Criminal Appeal have differentiated? They have looked at the facts of the offence and they have said, well, they are the so‑called objective standards, and then they have looked at the circumstances of the particular individual, and they are the so‑called subjective standards.
MR HAESLER: That is how generally the Courts of Criminal Appeal approach that task when they adopt perhaps the staged approach, but what appears to have happened here is that his Honour has taken the worst case scenario by saying simply proof of the elements of the offence, without reference to the offender’s conduct, objectively examined. In other words, a worse category of offence is a person who supplies a drug, not less than the commercial quantity. There does not appear to be in his Honour’s reasons any reference to this offender’s criminality, and that becomes clear from what occurs ‑ ‑ ‑
HAYNE J: Interrupting you there, do I understand you to say that the error in reasoning is to begin from a start point, whatever that start point is, which does not take account what? All of the features of the offending, some of the features of the offending? What is the complaint?
MR HAESLER: The complaint here is none of the features of offending.
HAYNE J: I understand that ‑ ‑ ‑
MR HAESLER: Our secondary position is this, which comes to the matters of principle, is a court to take into account the objective circumstances of the offender’s crime as a starting point for any sentencing calculation?
HAYNE J: And this starting point took account of the weight of drug?
MR HAESLER: This starting point was a bit more complex than that, your Honour.
HAYNE J: Just so, thus what is the complaint that is made? That there are some features which are to be identified as a starting point, or all features are to be identified as a starting point? What is the complaint?
MR HAESLER: We have two complaints in relation to his Honour’s approach. The first is that, if I might just take a step back, the authorities and part of the rationale, I suppose, for the grant of special leave here was the distinction between those members of the court and members of other courts which say that it is appropriate as part of a sentencing process to start with an objective assessment of the offender’s criminality. There are others who say that that is an inappropriate approach, that the appropriate approach is to look at all the circumstances of the offender’s criminality and subjective features in globo and come to a judgment.
We say, as a part of our submission, that the second, what is labelled the “instinctive synthesis” approach is the appropriate approach for a sentencing court. What we say in relation to Justice Hulme’s decision is that he did not stick to even the staged approach, as it is commonly known, by starting from an objectively determined sentence based upon the offender’s crime and his criminality. So whichever of the two approaches is to be preferred, we say his Honour offended both, and that occurs because of the way he started this sentence at paragraph 37.
KIRBY J: I am surprised, picking up Justice Gummow’s point earlier, that you allowed Justice Hulme to pass on to page 99. I would have thought that you might have submitted that the beginning of the error was on page 92 at paragraph 19, where his Honour says:
It is appropriate to repeat yet again some of the basic principles of sentencing –
and not to start with the principles that govern prosecution appeals. To, as it were, say it is a prosecution appeal in the first paragraph of the reasons and to refer in the last paragraph of the reasons or thereabouts to the need to look back is perhaps not enough deference to the principles this Court has said have to permeate prosecution appeals, because of the element of double jeopardy that is involved in them.
MR HAESLER: I am not, with respect, going to abandon an argument which is advantageous to this appeal, your Honour. What I was trying to do was not - to take in response to Justice Hayne’s question the starting point that was adopted by his Honour and address that. I certainly do not abandon what we say was the error in approach which was formulated because of the way the court started and commenced and finalised the resentencing process. We say that by that resentencing process it indicates that those errors that your Honour has identified were made.
GUMMOW J: I was a little inaccurate, I think. There is a reference also at paragraph 44 as well as 56 - 44 on page 101, Mr Haesler:
perhaps as an incident of the discretion this Court has on a Crown appeal –
whatever that meant.
MR HAESLER: I cannot assist your Honour in that particular passage.
GLEESON CJ: I wondered, Mr Haesler, whether you were going to put an argument based on the second line of paragraph 37?
MR HAESLER: I had not had an opportunity to get that far yet, your Honour.
GLEESON CJ: There was a very experienced solicitor that I knew who spent a large part of his life appearing before magistrates arguing pleas of guilty and the first thing he always said to the magistrate was, “Just bear in mind that the maximum penalty is for the worst case by the worst offender”. If you bear in mind that a maximum penalty is for the worst offence by the worst offender, how do you go about measuring the degree to which an individual offender is less culpable than the worst offender?
MR HAESLER: I do not know that it is possible to give that measurement – it is possible to make that precise measurement. That is part of the problem with starting with an abstract such as the worst case and the worst offender and then assessing what percentage of that conceivable or hypothetical worst case the particular offender before the court is.
GLEESON CJ: I cannot imagine any sentencing judicial officer who does not, very early on, look at the maximum penalty. What would you look at earlier than that?
MR HAESLER: There is a vast difference between looking at the maximum penalty and saying this is the maximum set down by Parliament than starting at that maximum.
GLEESON CJ: Well there may be a difference, a very important difference, between looking at the maximum penalty as a starting point, which I would have thought is one of the most obvious things to do and using it as the basis of a calculation that proceeds by seeking diminution in culpability by comparison with the most serious offender.
MR HAESLER: Certainly and I appreciate that and we do not quibble with the comments made regularly by courts ‑ ‑ ‑
GLEESON CJ: In other words, it all depends what you mean by the starting point.
MR HAESLER: If it is used as a reference point at some stage in the sentencing process, as many other guides or forensic tools are used, to measure the appropriateness of a sentence then, of course, the maximum is relevant and the maximum can be used at various stages for the court to consider, before it imposes its final sentence, is this an appropriate penalty on the scale which is available.
But when it is used, as we say it was used here as the starting point – here it was an adjustment where his Honour said a worse case could not have been less than 15 years – then, as your Honour pointed out, said that this quantity involved 40 per cent so he then took a measure of the percentage of the drug itself rather than any other factor and then he had reference to the maximum penalty for the lesser offence of the supply of not less than 250 grams. So his reasoning process appears to have been we start at a worst case which would not give less than 15 years; we then look at the quantity of the drug; we then look at the quantity, which is in this case 413 grams, supplied in increments over a fairly lengthy period of time but he took that amount; he then looked at the maximum penalty available for an offence of supply of 250 grams and concluded that Parliament cannot have intended that other things being equal the penalty for supplying more than 250 grams should be less than for supplying that quantity and it is a conclusion that, with respect, I cannot see any rational reason for, and then started the process at one of 15 years.
He then had regard at top of page 100, paragraph 39, to five subjective features which he said removed it from the worst case category. So he was still formulating, we say, the objective starting point not by reference to the offender’s crime but the hypothetical worst case. So he was not, to take your Honour’s example, saying, “Well, I look at the worst offender and the worst crime and then work out how this offender relates to that hypothetical worst case”. He was still working from a maximum which is the least that could be imposed for a worst case where the elements of the offence had been satisfied rather than the offender’s crime – looked at the subjective factors.
But before he did that he then, at paragraph 40 of appeal book 100, made a calculation based again hypothetically on the differential in penalties between a person who was a principal in the supply of a narcotic and a person who fell lower in the chain. Here he used analogy with couriers, but in this case we occupied a role of – I think chauffeur is the appropriate description of our particular role. Again, he did not look to the particular role of this offender in relation to his principal but he took an abstract assessment of, there are differences objectively between a principal and someone lower in the chain of supply. That abstract again had no relativity with what the offender had done. It was again based purely on objective considerations without any consideration of the offender or the offender’s crime.
So even if one were to accept – and we submit that it is not necessary – well, one should not – the notion of a tiered approach which had been favoured by Justice Kirby and other courts, that one looks at the objective criminality of the offender and his crime, his Honour did not at this stage in the process even comply with that principle and that approach. So either way we say there is error.
HAYNE J: The arguments you have been advancing are arguments which I think, not now but at the end of your argument, may require consideration of the validity of the distinctions that underpin them. Much of what you have been saying – and, as I say, these are matters to which I suspect you may find it more convenient to come to at the end rather than now – but your argument has been proceeding by distinguishing between, on the one hand, the objective circumstances of this offender’s offending or the objective circumstances of this offender compared with a hypothetical case. A point which strikes me about those distinctions is that they are distinctions which have no criterion which permits their being drawn with any accuracy. Now, as I say, this may be something you would prefer to deal with towards the end.
MR HAESLER: What I would like to do, your Honour, before I return to that is just complete the process that was undertaken by Justice Hulme. The next step was his allowance of a discount for the plea of guilty. The next step was his increase in the sentence to be imposed because of the matters that were taken into account by what in New South Wales is known as the Form 1.
GLEESON CJ: Just before you pass beyond what you described as the discount for a plea of guilty, if all that is involved in what is sometimes called a staged approach or a tiered approach is making explicit the credit that is given for a plea of guilty, is there any objection in principle to that?
MR HAESLER: So far as the appellant is concerned, no.
GLEESON CJ: No, so far as your submissions are concerned?
MR HAESLER: As far as my submissions are concerned, no, nor do I understand it to be raised by the respondent.
GLEESON CJ: It is common practice, is it not, I think, in most Australian jurisdictions for it to be accepted that a judge may explicitly acknowledge the extent of the credit that is given for a plea of guilty?
MR HAESLER: It is, your Honour.
KIRBY J: If that is so is that not desirable that that should be done?
MR HAESLER: It is not undesirable.
KIRBY J: So we are into staged sentencing. It is just a question of how far we go.
MR HAESLER: The term “staged sentencing”, as I understand it, your Honours, and I always stand to be corrected by the Court, can refer to two types of reasoning process. The first is the allowance – the matter we are talking about now, a discrete deduction for a specific element and that is generally, if not exclusively, related to a plea of guilty or assistance to the authorities.
GLEESON CJ: In some jurisdictions it is compulsory to identify the allowance that is made for assistance to authorities, is it not, because there is a statutory scheme by which you may later become disentitled to that benefit?
MR HAESLER: Yes. The Crimes Act (Cth) in particular provides for, so far as assistance to the authorities is concerned, both the assistance prior to and afterwards, and I am reminded by my friend 5DA appeals where the Crown may lodge under the Criminal Appeal Act (NSW) where if a person has not provided the assistance for which they received a reduction of sentence the Crown can go to the Court of Criminal Appeal and say, “Increase the sentence appropriately” and it would be desirable, in those cases, to identify the discount.
As I understand it, no legislative scheme actually says, “The percentage discount must be identified”. In New South Wales the decisions of R v Thomson and subsequent to this Court’s decision in Wong v The Queen the decision in R v Sharma have endorsed the notion that specific discounts for assistance for the guilty plea are not anathema to a general approach of sentencing which goes under the rubric of instinctive synthesis. To the extent that that is a two‑staged approach it has not been held to be an error either in New South Wales, and the authority cited there is R v MacDonnell.
KIRBY J: You will have to lift your voice, I am sorry.
MR HAESLER: I am sorry, your Honour. R v MacDonnell (2002) 128 A Crim R 44. In the final paragraph of that decision, Mr Justice Wood, the Chief Judge at Common Law, indicated that if that is a two stage approach, then so be it.
McHUGH J: But 21E of the Crimes Act (Cth) specifically requires the court, if the sentence imposed is reduced by reason of co‑operation with law enforcement agencies, to specify that the sentence is being reduced for that reason and what the sentence would have been but for that.
MR HAESLER: Yes. The Victorian Court of Appeal, however, took a fairly rigid view – I do not use that in the pejorative sense, but it is a decision of R v Nagy, which I have not provided on the authorities, your Honour. I can give the reference. There was a particularly strong dissent by Justice McGarvie in that case, who took up the point that your Honour is making, that if there is a specific provision in the Crimes Act (Cth) for reduction of penalties, then perhaps it should be allowed.
Apart from the Court of Appeal in Victoria, certainly the New South Wales Court of Criminal Appeal, the South Australian Court of Appeal in R v Place (2002) 81 SASR 395 has made the point that it is quite possible to have an intuitive synthesis approach, but to allow for specific discounts for factors such as assistance and ‑ ‑ ‑
GLEESON CJ: I thought that what was being put to you was that statute requires the amount of an allowance for assistance to the authorities to be specified in the reasons. Do you accept that?
MR HAESLER: Accept that statute can do it, and ‑ ‑ ‑
McHUGH J: No, it does it. Section 21E does it.
MR HAESLER: Does it, yes.
McHUGH J: Yes.
MR HAESLER: In New South Wales it has been held, although it is not specific in section 22, where the guilty plea is to be taken into account, the New South Wales Court of Criminal Appeal has said that it should be, in the general case where it is capable of being specified, so specified.
KIRBY J: What is the section of the New South Wales Act?
MR HAESLER: Section 22, your Honour, of the Crimes (Sentencing Procedure) Act (NSW). That provision can be found at page 1 of the annexure to the written submissions, but it is section 22:
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,and may accordingly impose a lesser penalty than it would otherwise have imposed.
And the decisions of the New South Wales Court of Criminal Appeal in R v Thomson, R v Sharma, have indicated that where it is practicable to do so, that discount for the utilitarian aspects of the guilty plea should be identified. A similar decision was reached by the South Australian Court of Appeal in R v Place.
GLEESON CJ: What is being suggested to you for your comment is that some of the discussion of this subject proceeds on the basis of a false dichotomy. It proceeds on the assumption that there is some necessary inconsistency between the concept of synthesis and the concept of some form, in some circumstances, of staging, and that where you have a statutory provision that dictates that you specify the allowance that is made for one mitigating circumstance, that is not necessarily inconsistent with an approach that proceeds generally by way of synthesising various factors. It just means that there is one factor that has to be dealt with separately.
MR HAESLER: And we agree, both in our submissions and so far as the appellant is concerned, with that analysis, your Honour. It is consistent with the majority of the Courts of Criminal Appeal in the county. It allows for a specific integer or a discount from a specific integer, but it does not, we say, offend the general principle that sentences are to be formulated, not in a staged approach by an approach of synthesis of all relevant factors.
KIRBY J: It does seem to indicate that Parliament just assumes that in a rational sort of way, judges will approach the matter taking into account the several stages or several issues.
MR HAESLER: With respect, no. It presumes that allowance can be made for specific legislative requirements when it comes to formulating the final sentence to be imposed, and the discount both for assistance and the guilty plea, the rationale for those specific discounts is to send a clear public policy message rather than one based upon pure adherence to sentencing principle.
KIRBY J: They are the ones Parliament has troubled for obvious reasons, to identify. I assume that assistance to authorities is also specified, is it?
MR HAESLER: Yes, in the Crimes (Sentencing Procedure) Act (NSW) it can be found at section 23 of that Act and there Parliament makes the provision that such assistance is not to reduce unnecessarily an otherwise appropriate sentence. So having made allowance for the assistance, section 23(3):
A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence –
which places a restriction on the public policy or utilitarian aspects of the assistance that is offered.
GLEESON CJ: Mr Haesler, I do not think it is relevant to this case, but I have in the back of my mind that there has been some recent legislation in New South Wales about sentencing.
MR HAESLER: Yes, there is, your Honour.
GLEESON CJ: That is, according to my very imperfect impression, rather like the kind of legislation that exists in relation to awards of damages. You look at worst cases and medium cases and ‑ ‑ ‑
MR HAESLER: It is to be found in sections 54A and B of the Crimes (Sentencing Procedure) Act. It was considered by the New South Wales Court of Criminal Appeal in the decision of R v Way, [2004] NSWCCA 131, a decision which was included in my friend’s list of authorities, not yet reported ‑ ‑ ‑
GLEESON CJ: Would it be possible for you to state in a summary form the scheme of that legislation so that we may just be aware of it in the background, although it does not bear directly on this case?
MR HAESLER: Yes. It is, your Honour. Before I embark upon that task, might I just say one thing. The Court of Criminal Appeal in the decision of the Chief Justice in New South Wales, Justice Spigelman, indicated that that scheme was not inconsistent with an intuitive synthesis approach. But the scheme itself, your Honours, can be found at section – my friend indicates that the scheme is discussed in the respondent’s submissions at paragraph 6.12, but the New South Wales provision specifies that, reading from section 54B, these provisions did not operate at the time Mr Markarian committed his offence:
When determining sentence for the offence, the court is to set the standard non-parole period ‑ ‑ ‑
GUMMOW J: What paragraph?
MR HAESLER: Section 54B. I am sorry, is your Honour reading from Way? I am taking your Honour to the statute, the Crimes (Sentencing Procedure) Act.
GUMMOW J: Paragraph 39 of Way.
MR HAESLER:
(2) When determining the sentence for the offence, the court is to set the standard non‑parole period as the non‑parole period for the offence unless the court determines that there are reasons for setting a non‑parole period that is longer or shorter than the standard non‑parole period.
(3) The reasons for which the court may set a non‑parole period that is longer or shorter than the standard non‑parole period are only those referred to in section 21A.
Now, section 21A of the Crimes (Sentencing Procedure) Act is similar in form to section 16 of the Crimes Act (Cth). It lists the various factors that may be taken into account by a sentencing court. The court in Way held that it was but an exposition of common law principles and added nothing more to the law.
GUMMOW J: Where did they say that in Way?
MR HAESLER: They do, your Honour.
GUMMOW J: Where?
MR HAESLER: Sorry, your Honour. If I might come back to that, your Honour. Now, the legislature there set out a table, which can be found at section 54D, of standard non‑parole periods for specific offences.
KIRBY J: If you look at that section 54B(4), requiring the record for the reasons for increasing or reducing the standard non‑parole and the obligation of the court to identify the reasons for “each factor” it took into account, it tends to confirm my view that Parliament seems to be assuming that that is the way, and demanding that that be the way, that sentencing proceed – identifying factors, rather than, admittedly, in the particular matter of parole, presumably because it opens such matters up to scrutiny on appeal.
MR HAESLER: Certainly the Crimes (Sentencing Procedure) Act (NSW) does regularly make provision for the court to give its reasons. If I might take your Honours back to section 22 of that Act with regard to the guilty plea, 22(2):
When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
There are other provisions in the Crimes (Sentencing Procedure) Act (NSW) which reinforce the requirement that the court is to give reasons.
KIRBY J: The problem with the so‑called instinctive approach, intuitive approach, is that it can bundle up an awful lot of mistakes in unexposed reasoning. In this case you are defending Judge Hosking’s sentence, which has been found to be too light, but there are cases that come to Courts of Criminal Appeal where the complaint is – this is the more usual case – that the sentence is too heavy, and if the judge simply bundles it all up in an intuitive approach – of course, judges like to have large discretions – then it is not exposed to effective appellate scrutiny.
MR HAESLER: If I might take that point, your Honour, the giving of reasons and exposure of reasoning process does not need to be sequential or staged. No one is, as your Honour has said, arguing for a return to unexplained judicial intuition ‑ ‑ ‑
KIRBY J: I hope not. I certainly hope not.
MR HAESLER: Certainly the practice in New South Wales, and, as far as I am aware, in the other States, is no longer, “I have listened to everything that was said on behalf of the prisoner and I take account of the objective seriousness of the offence and here is my sentence”. The practice generally is – apart, perhaps, from the extempore decisions in the Magistrates’ Courts – for judges to impose sentences which are reasoned and reasonable.
What is at issue between the instinctive synthesis approach or the starting with the objective gravity of the crime is that abstract starting point as opposed to a consideration of factors which are not capable of sequential reasoning or, if sequential reasoning is undertaken, carry with it the danger that factors will be double counted or missed. Each process, if not reasoned and if the reasons are not appropriately articulated, is capable of being opaque. One or the other does not, we say, have primacy in regard to the reasoning process.
So, with respect, it is not the best argument for saying that there must be sequential reasoning, but no one is arguing, as your Honour has said, for return to unexplained judicial intuition. In fact, intuition is really not an appropriate description of the instinctive approach because it is not just, “I intuit from all these facts”, it is a process of reasoning which ensures that all of the relevant factors are taken into account and given due weight and one cannot know the answer to that unless those factors are generally articulated.
Giving appropriate weight and then apportioning to that weight a mathematical value, we say, can and does lead to error. A particular example of this is when Justice Hulme said that there is a 33 per cent reduction because this man is not a principal based upon something which was opaque. There is no rational reason for that percentage or no rational explanation as to how he came by it other than by saying, “Well, in courier cases it looks like you get 30 per cent less when you analyse the quantity of the drug that was imported”. So, whichever way one looks at the problem, opaqueness can creep in and we say that should not be determinative.
McHUGH J: But in my limited experience of these matters, one seldom sees those who favour the two-tiered approach follow the process to its logical conclusion. You do not see them saying, “Well, the objective sentence for armed hold‑up of a bank is 14 years. I will reduce that by two years because of previous good character, I will add on a year for this, I will take off a year for that and I will add three years for that.” That is what would really be required if you were going to follow the approach to its logical conclusion.
MR HAESLER: And, with respect, in the odd occasion where that has occurred some ridiculous sentences have achieved. I have made the submission in the District Court of New South Wales, “If your Honour allowed all the relevant discounts at the appropriate percentage, my client would be entitled to commit three more offences and should be released today”. If one looks at someone who has given massive assistance, disclosed unknown guilt, pleaded guilty at the earliest opportunity and one says, “Well, you get 50 per cent off for that, and a third off for that, and a third off for that and a quarter off for that, and then you taken into account this and the other”, you could end up ‑ ‑ ‑
KIRBY J: I hope that that submission to the District Court gets the attention that it has deserved because no one denies that at the end of the process there is a judgment that has to be made and an assessment. I am not myself particularly offended by the notion that that does involve matters of intuition and experience, but the question is whether on the process to it you expose the fact that you have taken into account the various considerations which the appellate courts or Parliament have said have to be taken into account, so that your mind has been addressed to those accounts as a sort of checklist.
McHUGH J: You cannot argue, can you, against a judge using a synthesis approach who says, “Now, the maximum penalty for this is 20 years. These are the circumstances of the case. The accused is a person of good character. He is entitled to credit for that. He is not entitled to any credit for this. Such and such is an aggravating factor. At the end of the day I think the sentence of seven years is appropriate, having regard to all those circumstances.”
MR HAESLER: That is the approach we say was adopted by Judge Hosking in this case and we say that Judge Hosking did not err.
KIRBY J: Not really, because he had the extra advantage that he knew the comparative sentences of the co‑accused and was, presumably, keen to avoid the legitimate sense of grievance that would arise, which arguably does arise from the Court of Criminal Appeal decision in the differential punishment of prisoners who were associated with the mastermind in this case.
MR HAESLER: That is a point that I do not abandon and wish to accept from your Honour that in this particular case it illustrates that the judge at first instance who was sentencing others involved in the general enterprise involved in the principle was also in a much better position to formulate a sentence by reference to what had been imposed upon others in the enterprise.
KIRBY J: I am surprised that in your written submissions you say that that did not take a high part in the submissions in the Court of Criminal Appeal because I would have thought that was a very important consideration. The net result is we end up with a disruption of the sentencing of the people who were involved in the whole enterprise.
MR HAESLER: We do not abandon that in the written submissions. The problem for the Court of Criminal Appeal is that the question of a relationship with the principal was not argued by either party at all, it was the result of the process which ended up with Mr Markarian receiving the same effective sentence as his principal.
KIRBY J: Yes.
MR HAESLER: That was not ventilated by either party in the Court of Criminal Appeal. It was not argued by the ‑ ‑ ‑
KIRBY J: If I can say so, that is one of the problems of not having – you can call it a staged or a sequential approach, because that was obviously a most important step in the sequence to look back at it and say, “Well, now, I do not think this is the right sentence and I have reached this view, but if I do interfere the result is going to be to throw out of joint the sentences on other persons and to put this man into the same position as the principal, which is an obviously unjust result which leads to a legitimate sense of grievance”.
MR HAESLER: But perhaps – I hesitate to use the word – we are arguing here about semantics. There is nothing wrong in a synthesis approach in saying at some stage in the process, “What are the reference points that I must have regard to before I pronounce the final sentence?” Those reference points can be and must be, in a case such as this, “What were the penalties imposed upon others involved in the enterprise? To accord with proper principle, I must have regard to the possibility of a justifiable sense of grievance if I go too far. I must give a sentence which is proportionate to those others involved in the enterprise. I have regard to that. I must have regard to the range of penalties fixed by Parliament. I must have regard to the range of sentences generally imposed by the courts for matters such as this.” None of those particular factors require a staged or sequential approach. All of those factors require that the reasoning process be identified. That is perhaps the distinction I am making between the position we are advocating and that expressed by your Honour.
GLEESON CJ: We are going to end up, if we are not careful, embarked upon a process of seeking to construe articles by commentators. What do you mean a staged or a sequential approach? Nobody in his right mind would suggest, would they, that when you look at section 21A of the new sentencing legislation in New South Wales and you go through subsection (2), the aggravating factors, that you ratchet the sentence up year by year or month by month for each one of those aggravating factors, and then you come to subsection (3) and you ratchet it down again for each one of the mitigating factors.
MR HAESLER: No one is suggesting that you take a starting point, objectively determined, and then oscillate up and down. That is, we say, the danger of the staged approach.
GLEESON CJ: What do you mean by that expression? Is that a judicial expression? Has any judge explained what is meant by what you call the “staged approach”?
MR HAESLER: Yes.
KIRBY J: Some judges have denounced it.
MR HAESLER: Where one – I will find it, your Honour. Just excuse me, your Honour.
GLEESON CJ: I mean I could understand particular cases where somebody says, “I’ve come to this sentence and but for your plea of guilty I would have given you that, but because you’ve pleaded guilty I’ll give you a lesser amount.” I guess you could call that a form of staging, and that is, as I understand it, not unorthodox, but it would be entirely unorthodox, would it not, for a judge to go through all the factors of aggravation and then all the factors of mitigation set out in the current legislation and increase or decrease the sentence step by step ‑ ‑ ‑
MR HAESLER: Or apportion a specific figure to those. Yes, we would agree.
GLEESON CJ: And, of course, as I think was pointed out in Gallagher, there is a danger of double counting.
MR HAESLER: Yes.
GLEESON CJ: Because the credit that you are given for assistance to the authorities is often a reflection of remorse as well as having a utilitarian aspect.
MR HAESLER: And it can have so many variables that it would be impossible to quantify, and that is the point your Honour made in R v Gallagher.
KIRBY J: Presumably Parliament has enacted section 21A with the intent that judges will take this checklist into account and will not just ignore it.
MR HAESLER: Yes, but so far as it has been reviewed in New South Wales, it is not a case of oscillating around some fixed starting point and going up and down. That point was made by the Court of Criminal Appeal in New South Wales in R v Way. The question of staged approach was described by Justice McHugh in AB v The Queen 198 CLR 111, as a tiered approach to sentencing rather than using the terminology “staged”. It does have, as his Honour - and we accept what his Honour said – a differential between the guidepost, which is spoken of in Veen v The Queen [No 2] and specific matters which are dealt with in some form of mathematical sequence adopting one or the other.
GLEESON CJ: Well, the current legislation seems to create at least 27 tiers.
MR HAESLER: There is a vast difference, we say, between creating tiers or matters which could be taken into account. What is commonly called the “staged approach” by the commentators is perhaps best described as a variant of the two‑staged approach - we have talked of the two stage being the deduction for guilty pleas or matters of assistance.
The South Australian Court of Appeal in Place 81 SASR 395, at page 2 of that decision it says this, your Honour – this is considering the questions that were posed for the court – at paragraph 4:
Thirdly, that it was an error of principle to adopt a two-stage process which involved arriving at a starting point based on objective considerations and then making deductions from the starting point to reflect circumstances of mitigation.
That is probably the best definition of what the commentators referred to as the tiered or sequential approach.
GLEESON CJ: I would not want to be accused of oversimplifying anything, but is it more complicated than a question of how precise you ought to try to be?
MR HAESLER: I am sorry, your Honour, I do not understand your Honour’s question.
KIRBY J: I think the question is whether your essential complaint about Justice Hulme was that he said, “These are the factors”, and he added, “I therefore take off so many years for this factor and I take off so many years for that factor and I then do my sums and reach a result”, and whether that has an inbuilt tendency without the ultimate factor of judgment to distort the outcome or the sentencing process.
MR HAESLER: So far as Justice Hulme’s decision, we agree with that. I would accept that analysis, your Honour. The more esoteric and academic consideration, which is perhaps what the Chief Justice may have been trying to avoid, is one that is raised by the present matter under appeal.
GLEESON CJ: You can fall into the trap in various areas of the law of giving to your process of reasoning a spurious appearance of precision which is not only misleading but capable of resulting in error.
MR HAESLER: Yes, and by adopting a sequential approach which gives certain values to considerations which are incapable of having apportioned to them a value or which by giving a value to them may result in double counting, the sin that was identified by your Honour in ‑ ‑ ‑
HAYNE J: It is the attribution of mathematical quantity as the reason for variation, so saying that a plea of guilty in this case attracts a 25 per cent discount. It is the attribution of mathematical precision to the variation which masks the nature of the reasoning involved and attributes to it a degree of science which is not there.
MR HAESLER: The example I would use here is the 33 per cent reduction because of the differential between a courier and a principal. The point your Honour has made was addressed by the New South Wales Court of Criminal Appeal in R v Thomson to do with a guilty plea and where a specific discount was identified as appropriate by the court, the court was at pains to say that they were talking about the utilitarian aspect of that discount and it was done for public policy reasons and, so far as the New South Wales Court of Criminal Appeal was concerned, dictated to them by the legislative provisions.
KIRBY J: But does the legislative provision require a mathematical discount?
MR HAESLER: It does not, your Honour, it does not, but so much was read into the legislation by the New South Wales Court of Criminal Appeal and the South Australian Court of Appeal in R v Place.
KIRBY J: And do they give the same discount in South Australia, 25 per cent?
MR HAESLER: I understand they have not formulated it with quite the degree of precision that they do in New South Wales and ‑ ‑ ‑
GLEESON CJ: Is there anything wrong in principle with courts setting out to encourage guilty pleas?
MR HAESLER: No, and the ‑ ‑ ‑
KIRBY J: Subject to what Justice McHugh said in Cameron, Justice McHugh said in Cameron there is a fine line between, as it were, rewarding in a proper way a true guilty plea and trying to persuade people to plead guilty who are not guilty.
MR HAESLER: There is a question of when the requirement or the provision for a guilty plea may tend to coerce a person who is otherwise innocent into entering that plea.
GLEESON CJ: Yes, but we might as well be blunt about it, that is why those States that approve of a specific discount for pleas of guilty do it, is it not? They want people to see what benefit you get as a result of pleading guilty ‑ ‑ ‑
MR HAESLER: Yes, and if I could add an element of precision to what is said by the courts in New South Wales, in particular R v Thomson, the discount is generally restricted to the utilitarian aspect of the plea of guilty, and that range of discount can be from 10 to 25 per cent for the utilitarian aspects of the plea of guilty. When it comes to quantifying all of the other aspects of the plea of guilty, the courts are less inclined to – well, they do not require a specification in any mathematical formula of that aspect, because it simply cannot because it crosses over into many aspects of the plea.
GLEESON CJ: Well, let us move into an area that cannot be controversial because it is dictated by statute. A statutory requirement to quantify the discount that is given for assistance to the authorities, the evident purpose of that is to encourage assistance to the authorities by letting people know publicly what benefit you get before giving such assistance ‑ ‑ ‑
MR HAESLER: Because of that assistance, that ‑ ‑ ‑
GLEESON CJ: And also part of the purpose of that statutory provision is to hold a threat over people ‑ ‑ ‑
MR HAESLER: If they do not assist ‑ ‑ ‑
GLEESON CJ: ‑ ‑ ‑ who have promised to give assistance that the benefit will be withdrawn if they do not live up to their promise.
MR HAESLER: And there are specific provisions and there is a specific provision in the New South Wales Criminal Appeal Act for the Crown to bring that person before the Court and have the discount reinstated, but ‑ ‑ ‑
HAYNE J: And the distinction to be drawn is between the a priori assumption that assistance warrants one third off or one quarter off, and the requirement for the judge to turn his or her mind to the question, how much should come off in this case because of what this offender did to assist.
MR HAESLER: Yes.
HAYNE J: And the mathematical approach, if it begins from the a priori assumption is departed from what hitherto has been seen as a fundamental tenet of sentencing, namely dealing with the particular offender in the particular circumstance.
MR HAESLER: But if the legislature does require that there is a specific provision made or ‑ ‑ ‑
HAYNE J: The legislature can always dictate the way in which sentences are imposed. We can go by legislation to the results achieved in the United States Sentencing Commission Federal Guidelines.
MR HAESLER: Where the New South Wales courts have tried to distinguish the matter is between identifying a specific discount for the utilitarian aspects and the more amorphous aspect.
HAYNE J: Yes, but the point I am putting to you is that there is a radical difference between identifying a priori what that discount should be and identifying in the facts of this case and articulating that “In your case, offender, you would have had X years but you get Y years (and if you do not continue to co‑operate the prosecution may go back to seek the imposition of X).”
KIRBY J: The answer in practice may have been that 25 per cent is given, in a sense, as a minimum but when you get to the final judgment if it is shown that the actions of the accused have saved very long trials, for example, or trials of very serious matters or many, many trials, as distinct from just one or two, or matters that are of great concern to the community, then in those circumstances you could increase the 25 per cent.
MR HAESLER: If one looks at what was said by the court in R v Thomson the court there was saying, the maximum you could get was 25 per cent for the purely utilitarian aspect of the plea which would include the length of the trial and the complications of the trial. It was for that purely utilitarian factor that the discount was specified. The court recognised that there were other aspects of a plea of guilty which would go to far more amorphous aspects of the formulation of an appropriate sentence.
HAYNE J: But again, the problem is more complex and the complexity is plainly revealed if you go to the US Sentencing Commission guidelines where in section 3E of the 2004 guidelines you get consideration of the subject of acceptance of responsibility, usually manifested by a plea of guilty, and you have two, three pages of amplification of what is meant by acceptance of responsibility. Again, to reduce it to the a priori proposition that a plea of guilty ordinarily attracts 25 per cent, even ordinarily attracts is obscuring the complexity of the judgment that then is called for.
MR HAESLER: With respect, that is why the courts in New South Wales tried to limit that aspect of the guilty plea to which a figure was to be placed. They may be successful or otherwise in that but they approached that task with public policy reasons in mind but left ‑ ‑ ‑
KIRBY J: It has been around for quite a long while, long before the case you mentioned. There were decisions in my time in New South Wales which had a standard discount for guilty pleas.
MR HAESLER: There was division amongst the court. The then Chief Judge at Common Law, Justice Hunt very much preferred not to articulate the specific ‑ ‑ ‑
McHUGH J: Yes, his Honour did and he had a vast experience.
KIRBY J: Yes, but Justice Wood has a vast experience and he prefers to do it, possibly for the very reason the Chief Justice has mentioned, namely to signal that this is what the court – you are not going to lose out, you are going to get at least 25 per cent.
McHUGH J: I suspect it must put intolerable pressure on many accused who believe they are innocent. At the Bar I had no experience of these discounts for pleas of guilty because it was not the practice when I was at the Bar, but I did have some experience when a sentence for murder was life sentence and accused persons were offered a plea of guilty to manslaughter by the Crown and that placed intolerable pressure on accused people who had to make a choice as to whether or not they would fight murder and perhaps get a life sentence or get a sentence of ‑ ‑ ‑
MR HAESLER: It is one of the problems that have been identified with what is not a term of art but plea bargaining. The problem that was identified by the court in Thomson was that the opposite was occurring in the sense that prisoners were being told, “You will get recognition for your plea of guilty”. So far as the researchers of those who appeared both for the Attorney and the interveners and others in Thomson could reveal – and I can say this having appeared with the then Crown Advocate for the Attorney – that people were not in a general sense getting a recognisable reduction in penalty. For example – and I am going on memory – the figures for homicides, murders in particular, indicated there was no particular difference between the sentences imposed whether one pleaded guilty or did not.
KIRBY J: That is even more intolerable.
MR HAESLER: What was occurring was that practitioners were – and this was anecdotally, and it is referred to in Thomson – saying, “Well, why should we put to our clients there is a benefit in pleading guilty when the chances are no benefit whatsoever is going to be occasioned to you? So why not take your chance at trial?” There were some offences, particularly in the child sexual assault area, where the penalties generally imposed after a plea of guilty were higher than those imposed after trial. Now, there may have been many other reasons for that, but nevertheless some of the material that was put before the court in that case was stark that people were not getting the benefit of a plea of guilty.
KIRBY J: Is this described in the reasons in Thomson?
MR HAESLER: It is described in the reasons in Thomson, your Honour.
KIRBY J: Where is Thomson reported?
MR HAESLER: It is reported at (2000) 49 NSWLR 383. The court made a compromise in looking at what had occurred in the Victorian courts, and the position which Justice Hayne has articulated has been articulated by the Victorian Court of Appeal on a number of occasions, to say that the specific aspect of the plea of guilty, the utilitarian aspect of that should have a quantifiable discount. If I might correct Justice Kirby, it is not a minimum of 25 per cent. They set a maximum of 25 per cent with a minimum of 10. So that a plea on the first day of trial might attract a 10 per cent reduction in penalty, but an early plea – and that has now been subject to considerable qualification by the New South Wales Court of Appeal as to what exactly is an early plea – but a plea which gave to the State significant utilitarian benefit either in not having to call witnesses or prepare the matter for trial would attract 25 per cent.
The court then went on to say that there were, as part of the process of intuitive synthesis, matters which could be taken into account flowing from the guilty plea, and recognised the point made by the Chief Justice when he was the Chief Justice of New South Wales in R v Gallagher that that particular quantification could generally not be made because it may involve double counting. There are still cases in New South Wales where ‑ ‑ ‑
KIRBY J: All of this and your written submissions show how careful this Court has to be to get into issues of sentencing principle which are properly the province of courts of criminal appeal and they are constantly evolving and developing. Why would it not be an appropriate approach to this case to say it was open to the Court of Criminal Appeal to come to the view that the sentence was too light, it looks like, for a heroin sentence of this quantity, but in then entering upon the resentencing Justice Hulme failed (a) to take appropriate regard to the overriding approach which this Court has repeatedly insisted upon in Everett and other cases in prosecution appeals, and (b) at the end of the process to look back and see what the consequence of the resentencing of this appellant would be for other people who have been sentenced in the structure of sentencing fixed and that they are the two errors that have been revealed and they require resentencing by the Court of Criminal Appeal. I mean, you want to get into great principles, but in a sense they are in a process of evolving.
MR HAESLER: They are, but ‑ ‑ ‑
KIRBY J: It may be that you show sufficiently that there has been an error in Justice Hulme’s approach, but maybe we would do well to just leave these principles to continue to evolve in the different States according to their different legislation, which is itself evolving.
MR HAESLER: But as part of that process of evolution it is appropriate, we say, for this Court to at least take the view that the approach taken by Justice Hulme in relation to his assessment of the worst case or maximum ‑ ‑ ‑
KIRBY J: You say there is a (c), and that is starting with the mathematical figure for the sentence fixed by Parliament, given that that must take into account the worst possible case, a vast range of offences, the worst possible case plus the worst possible subjective circumstances, and that therefore it is not really a very good or appropriate starting point; it is an outer boundary and that is all.
MR HAESLER: If this Court were to address that issue, that would be part of the general evolution of the principled approach to sentencing. There is a ground which relates to the specific identification of an addition to the penalty because of matters taken into account on the Form 1.
KIRBY J: You have not developed that yet. That might be a (d).
MR HAESLER: I have not developed that, but that is an additional (d), we say, and it requires little development, your Honour, in the sense that ‑ ‑ ‑
GUMMOW J: What were we taken to Thomson for?
MR HAESLER: Taken to Thomson for the notion that a discrete discount is given because of the utilitarian aspects of the plea of guilty. That is not, so far as the New South Wales courts are concerned, inconsistent with the process known as instinctive synthesis.
McHUGH J: Paragraphs 33 to 35 of the judgment show that the report of the Bureau of Crimes Statistics indicates that you got harsher sentences in many cases for pleading guilty early than you did for pleading later.
MR HAESLER: And at paragraph 57 of Thomson, the Chief Justice for the court:
The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
McHUGH J: Well, that seems right in principle. This utilitarian approach does not seem to me to have anything to do whatever with common law principles of sentencing.
MR HAESLER: It is a separate, discrete approach.
McHUGH J: It is done by the courts to improve the efficiency of their business and to save them expense and ‑ ‑ ‑
KIRBY J: And to avoid the injustice which is revealed in this – I mean, one can, as it were, intuitively, if I can use that adverb, understand that a judge who has sat through a long trial would have a merciful relief that the prisoner pleads guilty and reward the prisoner in that way, but that is not very rational.
MR HAESLER: And the court in Thomson then goes on ‑ ‑ ‑
GLEESON CJ: The conclusion in Thomson is at page 419. It may be right or it may be wrong, but it is a very large conclusion. The conclusion is that:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account . . .
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so . . .
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10‑25 per cent discount on sentence –
Now, Chief Justice Spigelman arrived at those conclusions after a very lengthy and detailed examination of the practice in New South Wales and in other States, and that is all in relation to only one matter – that is to say, plea of guilty.
MR HAESLER: It started in the passage I took your Honour to earlier by saying that such considerations should be narrowly confined. That is at paragraph 58, and in 59 he made reference to section 21E of the Crimes Act (Cth). So far as our researchers have considered across the States, the only two issues where that specific quantification for public policy reasons has occurred is in relation to either the plea of guilty or assistance to authorities, nothing else. Everything else, so far as the general approach to sentencing, has been the recognition of what is called the instinctive synthesis approach, the consideration of all relevant factors without starting at a particular point. That includes a rejection of the view which is sometimes put forward, that one starts by looking at the objective seriousness of the offender and the offender’s crime and then making reductions or deductions from that particular starting point.
Now, it would not be necessary, to take Justice Kirby’s point, for this Court to actually determine that issue, because what we say in this appeal is that if it were to be recognised there were two approaches, this particular decision offends both. His Honour Justice Hulme did not say, “I start with a sentence objectively determined in relation to this offender’s crime and his criminality and then reduce for subjective factors”. His Honour reached the starting point via a quite different process and then reduced for subjective factors. So he engaged in part of what is criticised as the “tiered” approach, but he did not start with that formulation of objective criminality, which was criticised by the Victorian Court of Criminal Appeal in Williscroft v The Queen.
So far as this appeal is concerned, it is, to adopt the terminology there, the “deed” being the starting point adopted by his Honour in his reference to the maximum penalty, the giving of a quantifiable amount to the Form 1. We say his Honour did that in the passage which appears at appeal book 102, paragraph 45:
On account of the matters on the Form 1, particularly the first and second of these, I would increase the sentence otherwise appropriate by between 18 months and 2 years.
Your Honours, we say having given that a quantifiable amount is again an error and it would be regarded, has been regarded, as an error. I will just give your Honours a reference to a decision of the New South Wales Court of Criminal Appeal, Attorney General’s Application Under S 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, paragraphs 39 to 42 ‑ ‑ ‑
KIRBY J: Now, can I put you to the real test. If his Honour had simply stopped and said, “It must be taken into account” – vague and general – and then in the end, in the privacy of his own mind, “I am revealing it to your client or to the community or to this court” he had taken off 18 months or two years, and then you would have no complaint. That does not sound a rational system of sentencing. Indeed, it is contrary to the whole movement to have the reasons for the exercise of power, certainly in the administrative field, and, one would think, a fortiori in the judicial field, exposed for appropriate review by those who can review it and for appropriate criticism by the community.
MR HAESLER: The same criticism would apply to any amount which a judge sought to quantify, your Honour.
KIRBY J: No, but what is your answer to my question? You would have no complaint if his Honour had not identified the quantum.
MR HAESLER: Yes. What we would then be looking at ‑ ‑ ‑
KIRBY J: You would have no feathers to fly on this point. His Honour has given you a feather to fly with.
MR HAESLER: The only complaint we would have, your Honour, is that in the third aspect of House v The King, that when one looks at ‑ ‑ ‑
KIRBY J: Well, you would never get into this Court on House v The King, as Justice Hayne explained to you earlier.
MR HAESLER: Yes, I understand, your Honour, but nevertheless that process ‑ ‑ ‑
KIRBY J: So your complaint is that his Honour has identified his process of reasoning and his quantification, not kept it in the privacy of his mind, has given you a right of review in this Court, the very one that you now exercise, and you are complaining about it. It seems extremely ungracious.
MR HAESLER: Well, one has to concede that his Honour’s decision was admirably transparent, nevertheless, where that transparency reveals error, we are entitled to rely upon it.
KIRBY J: There is another answer, and the other answer is his Honour acted in the right way and he acted in the transparent way and he has given a right to appeal on this point and he has revealed error in his quantification and this Court should correct that error. That is how transparency is supposed to work.
MR HAESLER: But the problem then arises with the quantification of the transparency, your Honour. I am on a cleft stick in that sense with your Honour’s reasoning because obviously it is exposed by Justice Hulme, but the error that he has exposed is the quantification of a specific amount for a matter which the appellant has not been convicted and the adjustment of that sentence by a mathematical amount for that practice.
KIRBY J: Exactly. This gives you the basis of your argument.
MR HAESLER: It does not, indeed, and it is an argument, your Honour, for the ‑ ‑ ‑
KIRBY J: Which you would not have had if his Honour had just stopped at the sentence, “I take this into account”, full stop, and adjust it, as he has done, for 18 months or two years secretly – secret justice.
MR HAESLER: The requirements of transparency and rational reasoning however, your Honour, cannot be an excuse for error, and if in formulating a sentence by allocating specific amounts to aspects of mitigation or aggravation ‑ ‑ ‑
CALLINAN J: Why is that wrong, Mr Haesler, for him to have specified 18 months or two years? Would you just explain that to me, please?
KIRBY J: Before you go to the authorities, what is the answer in principle?
MR HAESLER: The answer in principle is that the offender has never been convicted of this particular offence.
CALLINAN J: But he has asked for them to be taken into account.
MR HAESLER: To be taken into account.
CALLINAN J: Well, what is the difference between that and a conviction?
MR HAESLER: Well, there is, first, the aspect that he has not been convicted; second, he has availed himself of a ‑ ‑ ‑
CALLINAN J: But it is a plea of guilty.
MR HAESLER: He has accepted his guilt.
CALLINAN J: It is a plea of guilty, is it not?
MR HAESLER: Yes, and it is taken into account ‑ ‑ ‑
CALLINAN J: Well, what is the difference between ‑ ‑ ‑
MR HAESLER: Between a plea on indictment and a ‑ ‑ ‑
CALLINAN J: Yes. I mean, Justice Hulme, I thought not unconvincingly, expressed reservations about some of the earlier decisions regarding a Form 1 or what should be done in relation to Forms 1.
MR HAESLER: The procedure as adopted in New South Wales is again of administrative convenience to enable matters to be taken into account without having to go through the full process of indictment or a plea of guilty.
CALLINAN J: I understand that, but I ‑ ‑ ‑
MR HAESLER: Now, to have a benefit to have some utilitarian aspect to it, that particular procedure has to offer a benefit to an accused.
CALLINAN J: And there is no doubt that Justice Hulme did that. He thought that there was some benefit. I just do not understand why it is said to be wrong, that that benefit should not be quantified in terms.
MR HAESLER: It goes, does it not, to a fundamental principle that a person should not be sentenced for an offence for which they have not been convicted? All that a sentencing judge is doing in sentencing as Judge Hosking was doing here, or one of the things, was taking into account the antecedent criminal history of the offender which was relevant to perhaps his rehabilitation, his past history, it is a matter that was appropriately taken into account in the manner perhaps that this Court has spelt out in ‑ ‑ ‑
CALLINAN J: I am sorry, I did not mean to interrupt you. Is it wrong for a judge to increase the sentence because of the matters on a Form 1? It cannot be wrong, can it, for a judge to do that?
MR HAESLER: It may result in an increase in the overall sentence because of factors revealed by the matters on the Form 1, such as their ‑ ‑ ‑
CALLINAN J: Say the Form 1 does not reveal anything except what the charge is.
MR HAESLER: Generally there are at least some particulars given, but the fact that it is a ‑ ‑ ‑
CALLINAN J: But it is additional criminality, is it not?
MR HAESLER: It is not additional criminality insofar as the offence to be sentenced is concerned. What it is are factors which go to aspects of the offender’s background which are relevant to sentencing.
CALLINAN J: All right. Can you direct me to where the Form 1 is dealt with and the consequences of it in the legislation?
MR HAESLER: In the legislation, your Honour, yes. It is found in section 31 of the Crimes (Sentencing Procedure) Act through to section 35, but the practical and procedural aspects which are there set out do not delineate how the court is to use the Form 1.
CALLINAN J: Does it not say that the court takes them into account or may take them into account?
MR HAESLER: Yes, section 35(2) of the Act:
This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence ‑ ‑ ‑
CALLINAN J: What is the effect of section 33(3)?
MR HAESLER: The effect is that it has the potential for increasing the penalty, but it recognises that you cannot increase the available maximum penalty because of the matters taken into account.
CALLINAN J: Whatever the maximum is specified by the legislation.
MR HAESLER: But because it is not dealt with as a discrete offence on indictment or by way of committal for sentence, no discrete penalty is imposed for that offence. From that it has been taken that no discrete penalty should be imposed for that offence, but that it is taken into account in accordance with common law principles of sentencing which encompass the general moral culpability of the offender in reference to ‑ ‑ ‑
CALLINAN J: It is treated in much the same way as a criminal history.
MR HAESLER: It is treated in much the same way as a criminal history, and that can, in an appropriate case as this Court made clear in Veen v The Queen [No 2] at page 477, increase the actual sentence imposed because it is taken into account in that respect.
CALLINAN J: Well, that is what Justice Hulme has done.
MR HAESLER: What Justice Hulme has done ‑ ‑ ‑
CALLINAN J: He has not exceeded the penalty available for the relevant offence, and he has increased the penalty for the relevant offence, but your complaint is that he has done it by nominating a particular period.
MR HAESLER: One, nominating a particular period, which is a mathematical approach which we say does not accord with principle ‑ ‑ ‑
CALLINAN J: Simply because it is mathematical.
MR HAESLER: No, and secondly, by nominating a specific penalty for that offence.
CALLINAN J: No, his Honour says, “I would increase the sentence otherwise appropriate between 18 months and two years.”
MR HAESLER: Yes. So what he has, in effect, done is give a quantification of a penalty, we say, for those offences. It cannot have any other ‑ ‑ ‑
CALLINAN J: Well, what is wrong with that? I mean he has not in terms done that. In terms he has increased the penalty for the relevant offence. He says, “I would increase the sentence otherwise appropriate by between 18 months and two years.”
MR HAESLER: We say what he has done has imposed a specific penalty for that offence, and that is ‑ ‑ ‑
KIRBY J: Yes, but picking up what Justice Callinan has been putting to you, what his Honour has been putting to you seems very, very similar to what the Court of Criminal Appeal of New South Wales found in Attorney‑General’s Application Under s 37 No 1 [2002] 56 NSWLR 146, where the first holding in the headnote is:
(1) The entire point of the process of using a Form 1 is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. There is no requirement that the additional penalty should be small. Sometimes it will be substantial.
So that drives you back simply to complaining about Justice Hulme’s quantification of it instead of keeping it to himself with his lips sealed.
CALLINAN J: Unlike Justice Kirby, I must say it seems to me to be appropriate or very good that a judge, if he or she can actually expose what the additional penalty is, what the increase is. I do not really understand how you can complain about transparency, explicit transparency.
MR HAESLER: Well, we complain, your Honour, in terms of the mathematical apportioning of that transparent consideration.
CALLINAN J: I understand the argument.
GLEESON CJ: Mr Haesler, the Crimes (Sentencing Procedure) Act 1999, Act No 92 applied to this case, did it?
MR HAESLER: Yes, it did, your Honour, but it has been amended subsequent to this case.
GLEESON CJ: I understand that, but it applied to this case?
MR HAESLER: It did, yes.
GLEESON CJ: And it set out standard non‑parole periods.
MR HAESLER: No, those provisions did not apply to this case.
GLEESON CJ: They came in by amendment later?
MR HAESLER: They came in by later amendment, as did section 21A, as did section 3A, which sets out the purposes ‑ ‑ ‑
HAYNE J: Those were introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90.
MR HAESLER: Yes, and they did not apply to either the sentencing of this appellant or the resentencing undertaken by the court ‑ ‑ ‑
GLEESON CJ: Is it relevant to have regard to them?
MR HAESLER: We say no, your Honour, but if ‑ ‑ ‑
GLEESON CJ: What would be the standard non‑parole period if your client had committed this offence last week?
MR HAESLER: Would you just excuse me, your Honour. I will just double check before I launch ‑ ‑ ‑
HAYNE J: I think item 18 may be the one you need to look at, Mr Haesler.
MR HAESLER: Thank you, your Honour.
GLEESON CJ: Thank you. I am obliged to your Honour.
MR HAESLER: Ten years, your Honour. Item 18.
GLEESON CJ: That is irrelevant, is it?
MR HAESLER: It is irrelevant for two reasons. It is irrelevant because it did not apply. It may also be irrelevant for the reasons set out by the New South Wales Court of Criminal Appeal in their consideration of this particular provision in R v Way, which is unreported but is found on the Internet at [2004] NSWCCA 131, which delineated what particular cases attract the standard non‑parole period and where departure from that practice was appropriate.
GLEESON CJ: Just reverting to something you said much earlier in your submissions, it may be that nowadays the legislature may express its view about a need to increase sentences not so much by altering the maximum penalty as by fixing a standard non‑parole period.
MR HAESLER: They may, however, the New South Wales court in Way, at paragraph 127 of the unreported decision, put forward an approach which they described as not requiring:
resort to some rigid mechanistic or arithmetic approach, of the kind which would be totally unsuited to the difficult task of sentencing.
The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomsonand Houlton (2002) 49 NSWLR 383 at paras 57‑60 and which was favoured in Wong v The Queen (2001) 207 CLR 584 –
citing this Court’s decision –
but which has also attracted some criticism (R v Markarian [2003] NSWCCA 8 – special leave to appeal to the High Court granted) –
citing the decision of Justice Hulme –
Nor do we see it as requiring resort to a rigid two‑tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen (1999) 198 CLR 111, per McHugh and Hayne JJ.
So the court was acutely aware of what had fallen from the judges of this Court in AB v The Queen and Wong v The Queen when it came to analyse the legislative requirements in the new provisions.
HAYNE J: Just while you have Way before you, I notice at paragraph 84 of that judgment that it is said that:
The sentencing case law is replete with references to objective features of the offence and subjective features –
It is the next two sentences to which I draw attention:
It has not hitherto been necessary to classify a factor as one or the other. It is now necessary to construe [the statute].
Do you accept or challenge that middle sentence, “hitherto not necessary to classify a factor as objective or subjective”?
MR HAESLER: Yes, we do, your Honour, because when we have gone to identify what is known as the tiered approach absent the guilty plea aspect, that approach has been described as first formulate the objective seriousness of the offender’s crime and then make appropriate deductions from it. Now, it was that approach which has been rejected by the New South Wales Court of Criminal Appeal in saying we follow instinctive synthesis. The question of how the court then went on to formulate what is meant by the objective seriousness of the offence, well, that may be a matter for resolution by this Court if – I understand that R v Way is the subject of a special leave application but that is, we say, beyond the scope of any argument or discussion in this Court.
GLEESON CJ: Well, now does that cover what you wanted to say about Justice Hulme?
MR HAESLER: Yes, it does, your Honour. Your Honour, I do not wish by virtue of my brevity to back away from the propositions which were put and welcomed from Justice Kirby in relation to the approach taken by the Court of Criminal Appeal to this sentence and this sentencing exercise which are encompassed by the second ground, we would say, of appeal and the amended ground of appeal. We have discussed them at length perhaps in my submissions.
We say that the consequences are that there were sufficient errors in approach without – this Court may wish to go into the area of the objective seriousness, but his approach so far as starting with the maximum, we say with the Form 1, and which we say does not accord with what was said by the New South Wales Court of Criminal Appeal in Attorney General’s Application No 1, and particularly paragraphs 39 to 44, but I will not canvas that any further, justify, one, the intervention of this Court and, secondly, if one takes the view that the sentence – whether one takes the view that the sentence imposed was, and the Court may not need determine this, by Judge Hosking, manifestly inadequate, the reality of the situation is that the prisoner has served 11 months more than he would have served, that is of today, than he would have served if Judge Hosking’s sentence had not been overturned.
One should always return, with respect, to the circumstances of this particular appellant even in the rarefied atmosphere of this Court. That is, we say, the Court does not need to determine precisely that Judge Hosking was not in error, but that the appropriate order of this Court is not to remit the matter back to the Court of Criminal Appeal, but to set aside those orders and order that the appeal be dismissed and that can be for discretionary reasons given the length of time that the prisoner has already served. They would be the orders we would be seeking, that the orders be set aside and that the order that the appeal of the Court of Criminal Appeal be dismissed.
KIRBY J: Could you inform me what the position is about the co‑accused? There were three accused as well as your client, were there not? There was the principal who got under eight years.
MR HAESLER: The principal got eight years and one has to also accept the principal got eight years after he received a reduction for assistance to the authorities. The principal gave up not only his underlings but others associated in the enterprise. The principal was – and we have provided copies of the sentencing remarks of acting District Court Judge Shillington for Mr Caccamo, the principal.
So we have the principal, who received a sentence of eight years, but that was reduced. He was in fact sentenced for four counts of actual supply involving close to four kilograms of heroin and a number of Form 1 matters, but he received a reduction in penalty because of assistance, getting to the eight years. There was the other chauffeur, Mr Chung, and his sentencing remarks are in the appeal book. He received periodic detention. Judge Hosking said that because Chung did not have the criminal antecedents of the present appellant and was less involved as a chauffeur, questions of parity did not apply, however, because of the leniency with which the other chauffeur was dealt, this appellant was entitled to some reduction in sentence.
KIRBY J: Who had sentenced Mr Chung?
MR HAESLER: Mr Chung was sentenced by Judge Knight of the District Court.
KIRBY J: And was that after the sentence of Mr Caccamo?
MR HAESLER: That is a good question. Mr Caccamo was sentenced on 30 May 2002. Mr Chung was sentenced on 14 June 2002. Judge Hosking also dealt with a man by the name of Barta, from whom Mr Caccamo purchased his heroin, and he was sentenced on 25 July 2002 on a number of charges of supply. So he was the person from whom, at least as part of the enterprise, Mr Caccamo was purchasing heroin, and he received effective sentences of six years and eight months imprisonment.
KIRBY J: Was he the actual importer of the heroin into Australia?
MR HAESLER: I do not think he was the importer, but he was the wholesaler further up the line to Mr Caccamo. It illustrates the point your Honour made to me earlier today that Judge Hosking was also aware of what was occurring to others where there was no strict parity, because the sentences for which they stood to be sentenced were quite distinct and the actual amounts of drug and their roles in the enterprise. But they were part of the subculture whereby Caccamo was using Chung and the present appellant as his drivers, for, although he was dealing in heroin he was not breaching the road rules – he was a disqualified driver and had people drive him. He was purchasing from a man called Barta. There were others involved in the distribution network and others involved in the overall enterprise who came to be sentenced.
KIRBY J: Did Justice Hulme take into specific account the fact that your client was, according to the evidence, heroin dependent?
MR HAESLER: He did, your Honour. He took it into account as perhaps a two-edged sword. The factors he indicated he took into account are set out at paragraph 39 at appeal book 100: his role, his plea, the finding of contrition, his addiction and matters which fall within the topic of rehabilitation. He dealt with the question of addiction at paragraph 42 at appeal book 101, but did not reduce the sentence because of it.
KIRBY J: If you read some of the character reports, it was the combination of grief and addiction that led to his heavy dependence on heroin.
MR HAESLER: Grief, addiction and ‑ ‑ ‑
KIRBY J: In some societies he would be regarded as a sick person.
MR HAESLER: Yes, your Honour. Grief, addiction and also some sense of obligation to Mr Caccamo, who had cared for his father while he was in custody.
McHUGH J: However, the evidence indicated, did it not, that when he took up with the principal he was heroin free?
MR HAESLER: When he took up with his principal he was heroin free?
McHUGH J: Yes.
MR HAESLER: Well, no ‑ ‑ ‑
GLEESON CJ: And what he took up doing was making other people sick.
MR HAESLER: He certainly did that, your Honour. I agreed too quickly with your Honour Justice McHugh’s comment that he took up dealing with the principal. He took up an association with the principal because the principal had helped his father, but I do not think the evidence was clear that he took up working in Caccamo’s enterprise. In fact, it appears more likely that that occurred after he had disposed of, by use of heroin, of the substantial estate which he inherited from his father.
KIRBY J: It was $200,000 I think.
MR HAESLER: $200,000. Then his role in working for Mr Caccamo was for a reward but he was being supplied with his daily dose of heroin, and that was his reward for this particular indictment. So that would tend to say that his association with Caccamo may well have led to him taking up, but his association with Caccamo’s enterprise was for this reward of the deal of heroin, no other role. His Honour regarded that as a neutral factor. It is inherent that there is no correct sentence and there are matters which cannot be – as long as they are identified, we say it is an appropriate approach.
GLEESON CJ: Does that cover what you want to say?
MR HAESLER: That covers what I want to say, your Honour.
GLEESON CJ: Thank you, Mr Haesler. Yes, Mr Cogswell.
MR COGSWELL: Your Honours may be familiar with what Sir Frederick Jordan had said in 1936 in the context of sentencing: the only golden rule is that there is no golden rule. That dictum of Sir Frederick’s was cited with approval in two cases which may be said to represent somewhat opposing positions on the issue which is to be resolved by this case. It was referred to in the Victorian case of Williscroft [1975] VR 292 at 300 to 301, then 25 years later in New South Wales in Thomson 49 NSWLR 383 it was referred to again. Hence, by reference to that, your Honours ‑ ‑ ‑
KIRBY J: Yes, but at the same time similar statements were being made about administrative law, that there was no rule. Well, we have come a bit of a way since then, Mr Cogswell.
MR COGSWELL: Yes. I have tried to set the scene for the proposition that we are advancing in this appeal. It is to be expressed in negative terms and it is this. It is not an error for a sentencing court to engage in a sequential or two-tiered approach to sentencing if all the relevant sentencing principles are considered and appropriately applied to the circumstances of the case. That is essentially the core of the proposition which we advance in this appeal, that it is ‑ ‑ ‑
HAYNE J: The proposition is self‑fulfilling, is it not?
MR COGSWELL: Yes.
HAYNE J: If there is no error, there is no error, we understand that.
KIRBY J: And appropriate is thrown in as well, just to throw some more dust in our eyes.
MR COGSWELL: Appropriate is – well, your Honours, I am going to take the proposition a little further. Your Honours will see from our written submissions that we deal with a number of separate grounds in ground 1 and the first ground which we deal with is that the formulation of the substituted sentence by means of a staged approach was in error and we advance four arguments in our written submissions in reply to the appellant’s submissions. What I propose to do without repeating the arguments is to elaborate on some of the arguments which we say indicate that his Honour was not in error in this case.
The first argument which we refer to is that what is required by the sentencing task is the application of appropriate sentencing principles to the circumstances of the particular case, not a particular form of sentencing. It is principle to which a sentencer must always turn in exercising his or her discretion in sentencing an offender rather than a particular form. Hence we say there was no error in the form of a two-tiered or staged approach.
An example of that proposition is contained in the Western Australian case of Punch (1993) 9 WAR 486 and I am going to take your Honours to the judgment of Justice Murray on page 494 where his Honour was discussing ground 2 of the appeal which was a criticism of what was referred to as the two-tiered approach. At the foot of 494, in the last paragraph:
With the greatest respect, there seems to me to be a danger that the debate referred to is reduced to a matter of semantics.
I pause there to indicate his Honour made those remarks in 1993 and it is a remark which has been made since, I think Justice Kirby in this Court.
The important aspect would appear to be that a sentencing judge must at all times recall that his primary task is to arrive at a sentence which is proportionate to the gravity of the offence in all the circumstances. Those circumstances clearly include not only the nature of the offence itself, having regard to the circumstances in which it was committed, but also those circumstances which are personal to the offender, including –
various things, and then his Honour says:
Provided, in the latter case, they are not taken into account in a way which causes the sentencing judge to arrive at a sentence which is disproportionate to the gravity of the crime, how the proper end result is arrived at as a mechanical process seems to me to matter little.
And that is an authority which we cite in support of our first argument concerning the formulation of the substituted sentence in the way which Justice Hulme did. We say the way of determining whether there was an error is not to look at the way his Honour went about structuring his sentence, but rather to look at the sentence itself and to look at the principles which were applied, the facts which were found, et cetera.
Can I move your Honours to the third argument in support of the staged approach, if I can call it that, which we address in paragraph 6.8 of our written submissions by citing at some length an excerpt from Justice Kirby’s judgment in Cameron v The Queen (2004) 209 CLR 339. What I want to do – your Honour was indicating there the dangers which might attend a lack of transparency. We set out that quotation at length at paragraph 6.9 of our written submissions.
With that in mind, and also can I say this, so far as what we have called in the subheading the “Benefits of a sequential or two‑tiered approach”. There are, in our submission, if I can elaborate on this, seven sound policy and principle reasons which represent benefits to this approach in sentencing. Some of them will overlap, but the following propositions, we say, appear from the cases.
First, can I take your Honours to the judgment for the first proposition in Wong v The Queen (2001) 207 CLR 584, a judgment of this Court. The proposition we are looking at is the benefits which attend the staged or sequential form of sentencing. Can I take your Honours to the judgment of your Honour the Chief Justice at 592, paragraph 10, where your Honour refers to the increasing size of the judiciary and the legal profession, and the associated problem of inconsistency and the need for appellate guidance. As your Honour says:
In the days when criminal justice was administered by a relatively small group of judges, it was easier to maintain consistency. The range of likely penalties for common offences was well known, and significant departures from that range were readily identified. Idiosyncratic decision‑making was not difficult to recognise. Now, at least in New South Wales, a large number of judges (and acting judges) sentence offenders, and there is a growing need for the Court of Criminal Appeal to give practical guidance to primary judges. The form that such guidance might properly take is an important issue in the administration of criminal justice. If there is insufficient guidance, and resulting inconsistency, public confidence in the value of discretionary sentencing will suffer.
So that, we say, is the first of the seven propositions or arguments which indicate a benefit of this form of sentencing.
For the second, I take your Honours to the judgment of Justice Kirby in Wong at paragraph 92 of the judgment. At the last sentence of paragraph 92 – and I acknowledge it is in the context of guideline judgments, but, in our submission, it could apply to staged or sequential form of sentencing:
The purpose of “guideline judgments” is to replace informal, private and unrevealed judicial means of ensuring consistency in sentencing with a publicly declared standard.
So that there is a standard which is available for all to see.
GUMMOW J: Is there anything in Part 3 of the New South Wales statute, beyond section 21(3), which deals with a requirement to record reasons for decision? A lot of this debate is really about what has to be expressed in reasons.
MR COGSWELL: Yes, your Honour. There is, and it is not in ‑ ‑ ‑
GUMMOW J: There is a specific requirement in 22(2).
MR COGSWELL: Yes.
GUMMOW J: Is there any other specific requirement?
MR COGSWELL: There may well be, your Honour, I know that there are, for example, in the criminal – and your Honour is presumably asking about the sentencing legislation, rather than the Criminal Procedure Act, for example – in a judge alone trial, the judge is obliged to give reasons, but that is a different piece of legislation.
GUMMOW J: Yes, we realise that. We dealt with that in Fleming.
MR COGSWELL: Yes. Can I come back to that after lunch? I am not aware of it off the top of my head. Section 44, I am told, your Honour.
GUMMOW J: These debates seem to take place divorced from statutes.
MR COGSWELL: I am going to take your Honours to the statute in – well, that is one of our submissions, as your Honour will see, that the statute in New South Wales inclines judges towards needing to approach sentencing in a staged way, or at least take into account isolated factors.
GLEESON CJ: It may not support the proposition you have just put, but the Crimes Act (Cth) for many years now has specified a large number of factors that judges have to take into account. There has been a legislative trend over more than 10 years, not to confine sentencing discretion, but to require judges in the exercise of their discretion to take an increasing number, as far as I can see, of specified matters into account.
MR COGSWELL: Yes, your Honour is quite right. I think the term sometimes used is “structured discretion”, that there is guidance in the exercise of discretion rather than confining it. Yes, I agree, your Honour.
GLEESON CJ: It goes back at least to the truth in sentencing legislation in New South Wales.
MR COGSWELL: Yes, which was 1989. My learned junior, Mr Smith, your Honour Justice Gummow, has drawn my attention to section 44 of the Act, a provision about setting the non-parole period and specifying special circumstances and in which case, unless the court decides there are special circumstances for it being more, in which case the court must make a record of its reasons for that decision.
GUMMOW J: So the other requirement in 21(3) seems to be other requirement in this statute or some other statute.
MR COGSWELL: I am sorry, your Honour? The other requirement ‑ ‑ ‑
GUMMOW J: The word “requirement” in 21(3) seems to be talking about statutory requirement, not something coming out of the general law.
MR COGSWELL: That is right, your Honour, but can I take your Honour back to 21A(1) ‑ ‑ ‑
GUMMOW J: That did not apply here.
MR COGSWELL: No.
GUMMOW J: We are being asked to rule on all this and on a statute in an earlier form in relation to a particular State.
MR COGSWELL: Yes, at lunchtime, your Honour, we are going to extract the version of section 21A which was in existence at the time of this sentence. I have dealt with two of the seven arguments. The third, once again, relies on Justice Kirby’s judgment in Wong and it is at paragraph 102 and I think it is a matter which your Honour mentioned earlier this morning.
KIRBY J: Is this putting up a false issue though? As I understood the appellant’s argument, it was not complaining about transparency – and this is disclaimed in the written submissions – it is quantification that is the complaint and that really is, as it were, putting to the test how transparent is transparent.
MR COGSWELL: That is right. Your Honour, I will come to a specific defence of the judgment, if I can call it that, but, in my submission, because the argument relies upon transparency and the benefits, as we have called them, of staged sentencing, I thought that I should draw these particular features to the Court’s attention. Your Honour refers to there ‑ ‑ ‑
HAYNE J: The relevance of transparency is what is revealed through the glass.
MR COGSWELL: Yes.
HAYNE J: The question arises in an appellate context.
MR COGSWELL: It does.
HAYNE J: The question is whether there is specific error, thus whether the reasons are transparent or opaque bears upon that issue only on whether error is discernible or not. Where is this debate therefore taking us, if it is conducted by reference to notions of transparency?
MR COGSWELL: Well, your Honour, to ‑ ‑ ‑
HAYNE J: Is not the relevant question what the transparency reveals?
MR COGSWELL: Yes, your Honour. Perhaps if I can come to that. I will go straight away to that and to, I think, what your Honour said in AB v The Queen 198 CLR 111. Perhaps if I can take the Court to your Honour Justice Hayne’s judgment at the foot of 156 and the top of 157 where your Honour is dealing with the question of reduction in that case making allowance for what in that case was the appellant’s waiver of rights. Your Honour at the end of 114 said:
There are several flaws in the argument.
Your Honour then at paragraph 116 refers to – and I anticipate this is where your Honour’s question might be in this area that – your Honour refers to the policy considerations which encourage the giving of leniency and how those policy reasons can often be the same. Your Honour says that halfway through 116:
But they are the same policy reasons that operate in the case of confession to previously unknown crime. Waiver of rights will usually reveal remorse and contrition; the State is saved the cost . . . victims are vindicated . . . it may be thought probable that no conviction would have been recorded had the offender not taken the step –
And then can I go to 117, where your Honour says:
If the underlying policy considerations are the same in the case where the offender confesses to previously unknown crime and the case where the offender waives rights . . . does it mean, nevertheless, that the offender who takes both steps (as this appellant did) warrants greater leniency ‑ ‑ ‑
HAYNE J: This is a dissenting opinion.
MR COGSWELL: I appreciate that, your Honour, but I am taking the Court to it because my understanding is that it might elucidate your Honour’s question. Your Honour says in the next paragraph that the difficulty with quantifying – and this is, I understand, your Honour’s transparency point, what is transparent and what we can see through the glass, as your Honour says, perhaps the numbers, here is 25 per cent for the plea and here is 33 per cent for something else and your Honour says in AB, well, that can mask what is actually under those bare figures.
GLEESON CJ: Yes, a spurious appearance of mathematical certainty is not transparency, it is deception.
MR COGSWELL: Yes, I accept that, your Honour.
KIRBY J: But there is also deception in not revealing the real matters that are affecting your decision. There is deception of the person who is immediately affected; there is deception of the prosecution; there is deception of other judges; there is deception of the community.
GLEESON CJ: And there is also a risk of self-deception, which is a risk of the kind Justice Hayne was referring to in paragraph 115.
MR COGSWELL: Yes, that is right, your Honours. What we say is that insofar as the guidance of this Court is concerned, in light of what Justice Hayne said in AB, that there is a risk that if sentences focus on the numbers, so to speak, the percentages, there can be a risk that that process will mask the underlying policy considerations which are important, namely, remorse or contrition or whatever the factors are.
In its judgment in this case, your Honours, it is our submission that it will be important to emphasise that sentencers, in delivering sentences, if they are to, or are required to by statute, use figures or numbers, that ought not to mask – that ought not to, as your Honour said in AB, distract the sentencer from the principles which underlie that. So it should not simply stop at the surface. To use your Honour’s analogy of the glass, one should look behind – one can see the 25 per cent through the glass, but one should see what is behind the 25 per cent.
It might be, in a case of assistance to authorities and a plea of guilty, that, as the Chief Justice said in Gallagher, a lot of those considerations overlap. So we would encourage this Court to affirm that it is important for a sentencer in using a staged form and in using numbers not to overlook, or not to be distracted by, as your Honour says ‑ ‑ ‑
CALLINAN J: But, Mr Cogswell, the important word in what the Chief Justice put to you is “spurious”. Now, I did not understand Mr Haesler to say that Justice Hulme’s adoption of arithmetic, to the extent that he did by referring to 18 months or two years, was spurious. I do not think you have to respond to any submission of that kind.
MR COGSWELL: No.
CALLINAN J: It seems to have simply been that what he did was, in substance, he imposed a sentence of 18 months to two years for the other, the Form 1 offences.
MR COGSWELL: Perhaps I could go to the Form 1 point. He did that in the exercise, in our submission, of principle. I will come back to these other submissions and go ‑ ‑ ‑
CALLINAN J: There is no submission that what was done was spurious.
GLEESON CJ: You were commenting on a judgment of Justice Hayne.
MR COGSWELL: I was.
GLEESON CJ: And a series of paragraphs, including a paragraph where he says an appearance of mathematical certainty may be a false appearance.
MR COGSWELL: Yes, that is the case, your Honour, but on the other hand the currency, which is the subject matter of the whole process, are numbers, are years. The area is also strongly affected by policy considerations, as has been pointed out. There are policies which are important for the litigants, there are policies which are important for the public, and there are policies which are relevant to the appellate process, including the necessity to give reasons.
It means, your Honours, that the courts may be driven, and we say they have to be, in some circumstances to use numbers, to use mathematical processes, to use discounts and expressions such as “25 per cent” or “35 per cent” in order to implement those policies, and in some cases in order to follow the dictates of the legislature. Obviously the policy so far as informing – or the policy which informs pleas of guilty, one of the policies is to encourage those pleas in order to encourage those who are, in fact, guilty to plead guilty, in order to assist, as your Honour said, in the administration of justice – or I think Justice McHugh said - so that the administration of justice is not delayed.
KIRBY J: Could I ask whether you are going to come back to the seven sound policy? You got up to three but ‑ ‑ ‑
MR COGSWELL: I did. Well, why do I not finish that, your Honour, so that ‑ ‑ ‑
KIRBY J: Are they stated here in the written submissions?
MR COGSWELL: No, they are not. They were developed by me last night.
KIRBY J: Well, for my own part I would be helped ‑ ‑ ‑
MR COGSWELL: Why do I not finish them? That is ‑ ‑ ‑
KIRBY J: Even if you do it in very summary form, I think that will be useful.
MR COGSWELL: I will do just that. No 3 was greater transparency and honesty in the hallmarks of modern public administration. That is to be found in Wong at 102 and in Cameron, once again your Honour, Justice Kirby, at 73.
KIRBY J: What I was trying to say there was you have to look at this legal trend against the background of similar and analogous legal trends in other areas of formerly unrevealed discretions such as in administrative law. Professor Davis started things here. It may be that the Truth in Sentencing Act started in this field, but it did precede that in the administrative law field.
MR COGSWELL: Yes, I think your Honour said almost a quarter of a century ago. The fourth reason is it exposes proper sentencing principles, and that is apparent in the quotation from Cameron which we have set out in our written submissions.
The fifth reason is that legal advisers and defenders should know first that a plea of guilty will be encouraged. In other words, legal practitioners who advise offenders should be in a position to be able to indicate what the likely result of a plea of guilty is. Also that legal practitioners and offenders should be able to discern and challenge the basis of the penalty. There is a reference to one of the Western Australian decisions which I will simply give your Honours a reference to and it is in – I will give your Honours a reference to it later on.
The sixth is the duty of judges to give reasons and that important factors should be revealed for the scrutiny of litigants ‑ ‑ ‑
GUMMOW J: What is the content of the duty to give reasons?
MR COGSWELL: In Thomson ‑ ‑ ‑
GUMMOW J: There is a celebrated decision of Justice McHugh in the Court of Appeal in a civil context.
KIRBY J: Soulemezis that was.
MR COGSWELL: Yes. Chief Justice Spigelman refers to it in Thomson andHoulton 49 NSWLR 383 in this context and at paragraph 42 his Honour refers to:
Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties.
GUMMOW J: Yes, I know, there are a lot of footnotes there. But what is the content of the duty his Honour is espousing?
MR COGSWELL: Well, your Honour, if I can answer that question in ‑ ‑ ‑
GUMMOW J: In this particular setting.
MR COGSWELL: Yes. In this particular setting, the obligation is to the parties – to the Crown and to the accused – and to the public. The content of the reasons must be such as to leave the litigant, particularly the ‑ ‑ ‑
GUMMOW J: Well, it is not a duty to the public. The public has no right of appeal.
MR COGSWELL: Well, let me focus first, your Honour, on the parties ‑ ‑ ‑
GUMMOW J: This is sort of loose speak.
MR COGSWELL: Yes, let me focus first on the party. To the offender who is sentenced, your Honour, the content of the duty to give reasons must be such that it enables the offender to know why he or she has received the sentence which he or she does. So if an offender is spending five or ten or the rest of his or her life in gaol, then he or she has a clearly articulated reason as to why that is the case. The duty, of course, also extends to the prosecutor, to the Crown, so that the Crown is in a position to know what the reasons were for the disposition in question, and, so far as both parties are concerned, whether they wish to appeal. So there needs to be sufficient reasons to justify or to explain the decisions or the determinations which were made.
GLEESON CJ: Could I ask a question that is related to that, but looking at the same problem from a slightly different angle. What is the capacity of an appellate court to instruct a primary judge as to the method or mode of reasoning that ought to be adopted in making a discretionary decision? What if some judges said, “I’d like to do it this way”, and another judge said, “Well, I prefer to do it that way”? What is the function of an appellate court telling them how they must reason?
MR COGSWELL: The only function of an appellate court in those circumstances is to avoid error, to scrutinise the process which the primary judge may use in order to be sure that it is not infected by error. That is one of the ways that we put our primary submission in the way that we did. It is not an error for a judge to engage in a sentencing process which might be described as two-tiered or staged, because this is a classic example, in our submission, Justice Hulme’s judgment in this case. His Honour set about elaborating in great detail the reasons for his judgment. I will take your Honours to the judgment after lunch, but he exposed in minute detail every step of the process and, in our submission, if a judge finds that helpful – and clearly his Honour did in this case – and if it is not infected by error, that judge should be left alone to do that.
It may well be, if I can take up what might be behind your Honour’s question, many judges might find it easier to approach their sentencing task in the way in which Justice Hulme did by commencing at a particular place and then referring to principle all along the way, by discounting and taking things into account and then determining a sentence. If a judge wishes to exercise his or her sentencing discretion in that way, the answer to your Honour’s question is he or she should be left alone, unless it is infected by error.
Just to finish those principles. So the sixth was the reasons. The seventh principle is this – and it is something which Chief Justice Spigelman said in Thomson and Houlton – different State jurisdictions have different needs, so that, for example, in Victoria the appellate court there has set its face against anything but an instinctive synthesis process of reasoning.
Your Honours, in two judgments, in Thomson and in Place, the South Australian case, to which I will not take your Honours straight away, both of those cases refer to particular issues or problems which had developed within their jurisdictions which it was convenient to meet by the articulation of the fact that a discount had been given and specifying the discount and both the Court of Criminal Appeal in Place in South Australia, the Court of Criminal Appeal in New South Wales in Thomson and Houlton referred to there being developed a certain scepticism – both used that – in the local profession about whether or not the discounts were being given by sentencing judges.
The reason that I am making that submission is that it would be, in our submission, important that this Court not put a stop to any process which would encourage different States or different jurisdictions in dealing with particular problems which they encounter in their own jurisdiction, so far as sentencing is concerned. In fact, it was in Young, which is one of the Victorian cases in 1990, which says that instinctive synthesis, or rather a staged approach is wrong. In Young there - I might take your Honours to Young.
HAYNE J: Just before you do, what are you meaning when you refer to a two‑staged approach? Are you referring to what was identified in the joint reasons in Wong as a process which begins with a so‑called objective sentence first determined which then is adjusted or are you referring to something else?
MR COGSWELL: I am referring, your Honour, to a term which may cover a number of processes ‑ ‑ ‑
HAYNE J: Just so, and we need to have some precision, rather than argument by slogan.
MR COGSWELL: By slogan, your Honour?
HAYNE J: Yes.
MR COGSWELL: The precision, your Honour, is provided by Chief Justice Spigelman in R v Thomson (2000) 49 NSWLR 383. At paragraph 59, which is at page 397, his Honour says:
The different approaches are often expressed in terms of a contrast between the “instinctive synthesis” approach, on the one hand, and a “two‑tier” approach to sentencing, on the other. This contrast has arisen in a number of different contexts –
so that, your Honour, to take up your Honour Justice Hayne’s expression, there are the two slogans. But there the Chief Justice sets out four examples:
·The separate identification of a sentence “proportionate” to the gravity of the offence and the actual sentence imposed . . .
·The separate identification of a sentence appropriate to the objective circumstances . . .
·Express credit for surrendering privileges, such as extradition rights –
and there is AB –
·Discount for assistance . . .
·Discount for guilty plea –
So, in our submission, rather than resorting simply to, as your Honour says, “slogans”, that provides some content – the Chief Justice has provided some content, we say, to that.
The reason why I was going to take your Honours to R v Young [1990] VR 951 – it is a judgment of the Court of Criminal Appeal in Victoria. I simply take your Honours to 961, about line 16. Their Honours had quoted to them in court a passage from Thomas on Sentencing, which suggested a two‑stage approach, if I can call it that. Their Honours then said:
All we shall say about that passage is that whatever authority it may have in England, where the problems of sentencing are somewhat different from those in Victoria, we do not think it should, for the reasons we have already given, be adopted here.
So I say that is an example of the necessity of this Court not putting its face against flexibility ‑ ‑ ‑
HAYNE J: Well, that is a process of reasoning which begins from this search for what is then tagged an objective characterisation of the sentencing. The criticism that is made of it is that you are searching for something that cannot usefully be identified, that it is all very well to say there is an objective offence out there, which we will then adjust mathematically, but what is the objective offence in this case, other than that identified by the bare statement of the indictment? What factors do you take into account? How do you divide the subject of the objective? You cannot.
MR COGSWELL: Your Honour, it is important, we say - and it is a process which, we say, Justice Hulme engaged in this process – to assess the objective gravity of the offence by reference to certain criteria, the primary one of which is the maximum sentence, and I appreciate what the Chief Justice said about distinction there, because if a judge is sentencing for a small amount of heroin which might attract a five‑year term, it is different to a large commercial attracting life.
HAYNE J: Of course it is, but if you are beginning from a premise which is, “What is the maximum sentence?”, if once you take that first step of saying that is for the worst offence by the worst offender, you have at once injected the subjective and you have denied the premise that you are identifying an objective starting point. Now, that is an error which is assigned here – it may be right, it may be wrong.
MR COGSWELL: Yes. Well, your Honour, it is a process which cannot be divorced from the individual circumstances of the offender so far as assessing the objective seriousness of the offending is concerned. It is something which Justice Hulme himself did in this case. He looked at the record, I will take your Honours to after lunch. He looked at various factors which he regarded as reflecting on the objective seriousness of the offending behaviour in this case. In one of the Victorian cases there is a reference to Dr Radzinowicz’s quote ‑ ‑ ‑
HAYNE J: That is in Williscroft.
MR COGSWELL: ‑ ‑ ‑ yes, it is in Williscroft – and I am not quoting it exactly – about how inexact and – rough and ready is the expression – rough and ready a process is involved in the application of the criminal law, and this is partly probably the source of the problem in this. We are talking about a process by which certain theoretical constructs have to be applied to it as a going concern.
HAYNE J: Because you are translating the untranslatable. You are translating human conduct into finite units of time or money, and they are untranslatable.
MR COGSWELL: Well, I appreciate the force of that, your Honour, but the statute requires it.
HAYNE J: Just so.
MR COGSWELL: The statute requires the conduct, the human conduct of the murderer or the drug dealer to be converted ‑ ‑ ‑
HAYNE J: Just so, and you do not do by calculator, you do not do it by computer.
MR COGSWELL: If I can respond to that, your Honour, in terms, one does not do it exclusively by calculator, one does not do it exclusively by computer. In New South Wales, for example, one has computer access to sentencing statistics. I see your Honour smiling, and a lot has been said about the appropriateness of how they are to be used and how they are not to be used, but clearly it can provide some guidance. A calculator would be needed if a sentencer were sentencing under the Commonwealth legislation and was required to perhaps specify that the sentence is being reduced and the sentence that would have been imposed. Perhaps they would not need a calculator in those terms. You are not doing it as a percentage, it is two different sentences. But that might require a calculator because the legislature is requiring it.
Insofar as the intermediate courts have indicated that there are sound policy reasons for specifying a discount and nominating a discount, then a calculator might be needed in those instances because it is a rough and ready process whereby the judges are attempting to convert principle, as your Honour said, into – not to convert it but to apply principle to the conduct of an offender. Then the end of the process is a number.
KIRBY J: Not too rough, we hope.
MR COGSWELL: Not too rough, your Honour.
GUMMOW J: The reference to Soulemezis that I had in mind was in Dinsdale 202 CLR 321 at paragraphs 9, 21 and 66.
MR COGSWELL: Thank you, your Honour. I will look that up over the luncheon adjournment. I have finished the seven points and I was just going to direct your Honours to – which I will not read – there are some, in our submission, helpful summaries of the public policy reasons contained in Place at 425 and that Western Australian case I could not remember the name of was Verschuren at 481C and what was said in Verschuren was adopted in New South Wales in Sharma at paragraph 31. So that concludes, your Honours, the seven reasons of ‑ ‑ ‑
GLEESON CJ: Is that a convenient time to adjourn?
MR COGSWELL: It is a convenient time.
GLEESON CJ: Well then we will resume, Mr Cogswell at 2.00 pm.
MR COGSWELL: Thank you, your Honour.
AT 12.59 PM LUNCHEON ADJOURMENT
UPON RESUMING AT 2.04 PM:
GLEESON CJ: Yes, Mr Cogswell.
MR COGSWELL: May it please your Honours. What I propose to do in a moment is to take your Honours through Justice Hulme’s judgment and to defend it, so to speak. Because one of the grounds of appeal deals with the Form 1 procedure which his Honour adopted and it was the matter of some dialogue between Justice Callinan and my learned friend about how his Honour used Form 1, as a preliminary it would be helpful to take your Honours to the Form 1 legislation, which is contained in the Crimes (Sentencing Procedure) Act 1999. I simply propose to take your Honours to the pivotal section, which is section 33.
CALLINAN J: I think, really, the submission by the appellant was in substance that there had been a breach of 34(1), and it is a question of just seeing whether that is so or not. I do not think the appellant said that, but that is what it was tantamount to.
MR COGSWELL: Yes. In our submission, his Honour did not impose a separate penalty for ‑ ‑ ‑
CALLINAN J: You say neither in terms nor implication did he do that.
MR COGSWELL: Correct. But just to finish what I am saying, the central section is section 33. Section 33(2):
The court may take a further offence into account in dealing with the offender for the principal offence –
and subsection (3) says that if it does that:
the penalty imposed . . . must not exceed the maximum penalty that the court could have imposed for the principal offence –
So the maximum available in this case was 20 years for the one offence on the indictment and his Honour could not exceed that in taking it into account.
McHUGH J: But have things changed? I mean, once upon a time when one took these things into account you just simply applied the totality principle if it was the same or something similar, even though it might not have originated out of the same criminal enterprise. In effect, you really looked at it that way, is that the way judges do it these days?
MR COGSWELL: The way judges do it nowadays, your Honour, has been the subject of a guideline judgment in New South Wales in the Attorney General’s Application and I was going to take your Honours now to this. That is the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 56 NSWLR 146. I direct your Honours’ attention to page 155, paragraph 18. It is a judgment of Chief Justice Spigelman with whom the rest of their Honours including the Chief Judge at Common Law agreed. At paragraph 18, his Honour set out a number of propositions with respect to the process which are well established and are uncontroversial. There are two important propositions:
First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone.
That is the first well-established and uncontroversial proposition.
Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial.
They are two primary and uncontroversial propositions. Then I will take your Honours to ‑ ‑ ‑
KIRBY J: But there is a bit of a compromise in the use of “taking into account”, is there not? The practice is that normally prisoners who are sentenced with the Form 1 taken into account do not get what they might have got if they had been sentenced for every offence because sometimes there are an enormous number of them.
MR COGSWELL: That is right, your Honour.
KIRBY J: So Parliament has used a weasel phrase, “taken into account”, in order to allow it to be given reflection but not at the full rate that would have been appropriate for a sentence – a finding of guilt and a conviction and then a sentence.
MR COGSWELL: Precisely, your Honour.
KIRBY J: It is left very vague, and the practice, as I recollect it, is that it is not given as much weight as it would have been if it had been a separate consideration.
MR COGSWELL: On the indictment, that is right.
KIRBY J: Is that correct?
MR COGSWELL: That is correct, yes. That issue was resolved by the guideline judgment. Chief Justice Spigelman deals with the rationale for the ‑ ‑ ‑
GUMMOW J: Does this procedure culminate in any court order or is it just a piece of ‑ ‑ ‑
MR COGSWELL: If we look at the legislation, your Honour ‑ ‑ ‑
GUMMOW J: Yes, starting at section 36. There may be a rule of court under section 41, I do not know, but at the moment it does not seem to be so.
MR COGSWELL: Your Honour has taken me to section 36 of the Crimes (Sentencing Procedure) Act?
GUMMOW J: Yes.
MR COGSWELL: I am sorry, whether the judgment in ‑ ‑ ‑
GUMMOW J: You have taken us to a case which has some value for me if it is a decision of a court exercising some judicial power.
MR COGSWELL: Yes, your Honour, the ‑ ‑ ‑
GUMMOW J: If it is not, it does not.
GLEESON CJ: The order seems to be on paragraph 69 on page 162. Is that it?
MR COGSWELL: Yes, it is “upheld”. I agree with what the Chief Justice said ‑ ‑ ‑
KIRBY J: Well, presumably, under section ‑ ‑ ‑
GUMMOW J: I have page 163 too. It does not look like an order binding someone in some respect.
MR COGSWELL: Section 37 of the Crimes (Sentencing Procedure) Act empowers the court to give a guideline judgment on the application of the Attorney‑General.
GUMMOW J: Yes, quite.
McHUGH J: This judgment does seem to depart from what my recollection of the practice was. Under the old law, if you look at paragraph 27 of this guideline judgment, Chief Justice Wood said:
“ . . . the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality . . . ”.
That was my understanding, and then I see in the next paragraph:
Subsequent cases have also referred to “total criminality” –
That is what I understood to be the way you approached it, but this case seems to suggest that Bavadra is wrong.
MR COGSWELL: Yes, your Honour.
McHUGH J: Paragraph 29 seems to suggest that Bavadra was wrong and the focus must be on the principal offence alone.
MR COGSWELL: That is precisely right, your Honour, because the offence is taken into account. If the focus shifts from the principal offence to the offences which are taken into account, then the error can be that the sentencer is sentencing for the offences on the schedule in the form, which is impermissible.
KIRBY J: Yes, 29 does not really say Bavadra was wrong.
MR COGSWELL: No.
KIRBY J: It reinterprets it.
MR COGSWELL: It suggests an interpretation which is consistent with principle and with the statute and as the Chief Justice says, if that interpretation is not right, then he thinks that Bavadra is wrong.
GLEESON CJ: Justice Wood agreed with this judgment.
MR COGSWELL: Yes, that is right, your Honour, yes.
KIRBY J: Under section 35(1)(b) there is a sort of a plea of autrefois acquit can be available in respect of the other offences, at least until the principal offence is set aside.
MR COGSWELL: That is right.
KIRBY J: The aim of it is to give people a chance for a clean slate and to give police the opportunity of a clear‑up rate.
MR COGSWELL: That is right, and the ‑ ‑ ‑
KIRBY J: And both of those are in the interests of society.
MR COGSWELL: That is right, and the offer ‑ ‑ ‑
KIRBY J: But not at the price of sentencing the person in the full extent that they would have been sentenced if they had been separately convicted of each of those other offences.
MR COGSWELL: They can legitimately expect, and I think Justice McClellan who delivered a separate judgment in the guideline judgments at page 162, paragraph 66:
The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed.
GUMMOW J: The legislative ‑ ‑ ‑
MR COGSWELL: And there is the clean ‑ ‑ ‑
GUMMOW J: The legislative nature of this activity appears ‑ ‑ ‑
MR COGSWELL: Look, I am sorry, I withdraw – yes, my learned junior – sorry, I am quoting from the Chief Justice rather than – yes, that is the Chief Justice.
GUMMOW J: The answer to my question seems to be that there is a legislative effect by section 42A which is the same or similar effect to that given to…..Conciliation and Arbitration Commission in the old days, that is to say, it is laying down a rule for the future and it is legislative in nature at the moment, it seems to me.
MR COGSWELL: Well, its source is in legislation as well, your Honour.
GUMMOW J: Of course it is.
MR COGSWELL: It is empowered by the legislature to do that. It ran into problems in this Court when there was not a legislative ‑ ‑ ‑
KIRBY J: But this case does not have the complication that I think it was Wong had, that it was federal legislation.
MR COGSWELL: That is right.
KIRBY J: This is State legislation.
MR COGSWELL: That is right.
KIRBY J: Then the only challenge is a Kable‑type challenge.
MR COGSWELL: Yes. Now, can I just bring the focus back, with respect ‑ ‑ ‑
GUMMOW J: Its precedential value depends upon whether it is a decision of a court exercising judicial power, so far as I am concerned.
MR COGSWELL: I understand that, your Honour, but let me put it this way, your Honour.
GUMMOW J: I am just alerting you to my difficulty.
MR COGSWELL: I understand that, but for the purposes of this exercise, your Honour ‑ ‑ ‑
GUMMOW J: It is as instructive and useful as a report of some skilled commission.
MR COGSWELL: But his Honour was not in error, we say, in following it. Now, having said that, in fact the judgment was handed down, the guideline judgment, between argument in this case and judgment, but evidently – well, it appears to have escaped his Honour’s attention, but our position is that, nevertheless, Justice Hulme’s judgment complied with, and did not fall short in any respect, of the guideline judgment. Can I take your Honours to ‑ ‑ ‑
KIRBY J: Just before you pass on. Could I ask – Wong, I think, left open, did it not, the availability and judicial force of decisions of the Supreme Court in the exercise of State jurisdiction. I do not think – I mean we did not have to, and I think we left open in that case, or some of us left open, the permissibility of what was done in that case in a non‑federal setting.
MR COGSWELL: That is right, your Honour.
KIRBY J: Certainly, I intended to do so, and I think I did.
MR COGSWELL: My recollection of your Honour’s judgment that is the case.
GUMMOW J: I am not saying whether it is valid or invalid as a matter of State law. I was simply saying as a matter of federal jurisdiction, which I am now exercising, along with the rest of the Court, this has precedential value as an exercise of judicial power by anybody, or whether it has – whatever other cogency it has, it may have considerable cogency.
MR COGSWELL: Well, the position I am arguing is that Justice Hulme did not err in a respect in which the ‑ ‑ ‑
GUMMOW J: When State authorities like yourself are involved in promoting these legislative schemes that is a factor that has to be borne in mind.
MR COGSWELL: Yes.
GUMMOW J: I do not think it is borne in mind.
MR COGSWELL: Can I take your Honours to page 158 - what I am taking your Honours to now is a rationale which the Chief Justice explains as the basis for taking into account. His Honour says in paragraph 40, at the foot of 158:
it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account -
And then, his Honour, at 42, says:
The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence –
which his Honour explains –
The second is the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
And then, his Honour, and this is relevant – at 44:
The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely –
not never, rarely –
be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences.
His Honour, in this case, did just that. His Honour quantified the effect on the sentence of taking into account the Form 1s and my submission is going to be that his Honour did that because the two elements of personal deterrence and retribution in the sentencing exercise which his Honour was engaged in his Honour regarded as very important and he was, therefore, not in error in quantifying them.
So far as personal deterrence is concerned, your Honour, can I take your Honours to page 94 of the appeal book and I am just going to direct your Honours’ attention to where his Honour took into account those two – his Honour at page 94, paragraph 24 listed a number of factors relevant to the objective seriousness of the offence. His very last sentence:
By his repeated offending the Respondent “manifested … a continuing attitude of disobedience to the law” –
and his Honour quoted Veen. So this is an offender who had one prior conviction for supplying heroin.
KIRBY J: Why did he withdraw the reference to parole? He was on parole at the time?
MR COGSWELL: Your Honour, he was not at the time.
GLEESON CJ: He was on parole at the time of the principal offence. He was not on parole at the time of the Form 1 offences.
MR COGSWELL: What the Chief Justice says, with respect, is correct.
KIRBY J: So this is an error in Justice Hulme’s reasoning? I have to tell you, Mr Cogswell, that one’s impression here is that – at least my impression is that this is a very high sentence in a Crown appeal, especially by relativity to the principal offender and that, therefore, you are looking to whether there is specific error in the reasoning. There is one.
GLEESON CJ: That is not an error. As I understand this he was saying at the time of the offence he was on parole and then the significance of the Form 1 things is that by his repeated offending he manifested this disobedience.
MR COGSWELL: I adopt what the Chief Justice has said. Yes, that is the submission that I ‑ ‑ ‑
KIRBY J: Was he on parole or was he not?
MR COGSWELL: The answer to that question is in his criminal record which commences at 35 in the appeal book, your Honours. At page 37 of the appeal book in fact Mr Makarian had been sentenced in the District Court and appealed to the Court of Criminal Appeal successfully. Page 37 records the result of the appeal and your Honours will see on the right‑hand side:
ORDERED THAT LEAVE TO APPEAL BE GRANTED. APPEAL UPHELD . . . MIN TERM 18 MTHS COMMENCE . . . ADD TERM 18 MTHS COMENCE 171099 CONCLUDE 16042001 ‑
So the additional term – his parole ended on 16 April 2001. The principal offence on the indictment, which is page 1 of the appeal book was from April to October 2000, so that is within the period but the Form 1 – and the second offence, my learned friend reminds me – the second offence on the Form 1 which is page 5/7 in the appeal book was September 2000, however, the balance of the offences on the Form 1, 1, 3 and 4, were all in 2001. So, he was not on parole at that time but he was on parole at the time.
So we go back to page 94 of the appeal book and the last sentence, which is, in our submission, his Honour has regarded, and indeed specifically quoted Veen [No 2], the offender as manifesting “a continuing attitude of disobedience to the law”. Then his Honour, at paragraph 32 of his judgment at appeal book 97, referred to the fact that it was the respondent’s third offence of supply, referring to – now, that does refer to the first Form 1 offence:
Given it was the Respondent’s third offence of supply –
So that his Honour clearly has in mind that personal deterrence in this case is for him a very important factor. The other factor referred to by the Chief Justice in the Attorney‑General’s Application was the question of retribution, so to speak. If we go to appeal book 93 to 94, paragraph 23 of his Honour’s judgment, about halfway through paragraph 23 on page 93:
Much, if not most of the work of the courts is taken up with the consequences of the ravages of drugs, particularly heroin, inflict on those who take it and, by them, on society.
His Honour quotes some statistics about break‑ins. Then at the top of page 94:
To punish those who help to perpetuate such consequences by sentences such as was imposed in this case is to fail to adhere to the dictates of Parliament, to fail to adhere to basic principles of sentencing, to fail to provide much disincentive to others . . . and to fail the community’s entitlement to retribution or, as I think is encompassed within that expression, to feel justice has been done.
So, in our submission, his Honour was in accordance with principle – and his Honour’s sentence, we say, accorded with principle – in accordance with the principle not referred to by his Honour but the subject of the guideline judgment. His Honour had singled out two elements of the sentencing process which his Honour regarded as important, and he attached significant weight to those, and in taking into account the Form 1 offences he regarded it as appropriate to, as the Chief Justice says, quantify the effect of the sentence on them because of those two features.
McHUGH J: Well, you seem to have accepted Attorney‑General’s Application, which rejected your arguments about the proper approach.
MR COGSWELL: Yes.
McHUGH J: Well, we are not bound by the decision in this Court. I have to say that prima facie I think that the approach of the Attorney put forward in that case was the correct approach and was the approach that reflected my own experiences at the Bar, and it is set out at paragraph 20:
The Attorney submits that it is pertinent to consider the sentence that would have been imposed by the application of sentencing principles, including the principle of totality, if the court had been sentencing for the full range of offences.
That was my understanding of how judges used to act.
MR COGSWELL: Yes.
KIRBY J: Was that not always subject to that footnote, but it is not as high as if it had come up on an individual conviction and sentence?
MR COGSWELL: Much so, but not always. There was a controversy in the New South Wales Court of Appeal which this judgment had quelled, and that is as to the extent to which an offender might expect a discount, so to speak – a lesser sentence, to call it that – for taking into account, but generally it was regarded as the offender could expect something less, yes.
McHUGH J: There was one proviso, and that is that the offences had to be basically of a similar kind. If somebody was charged with culpable driving, judges would not take into account the fact that you had been convicted of fraud or assault and robbery or something of that nature, but if you were convicted of stealing and that was the principal offence, you could take into account false pretences or receiving similar ‑ ‑ ‑
MR COGSWELL: That is right, and there was another proviso, that there ought not to be on the Form 1 a serious offence. One of those cases, I think Mr Justice Yeldham might have been – there was an offence on the Form 1 which was a very serious armed robbery ‑ ‑ ‑
McHUGH J: I was surprised there is not a reference to any of those old cases that dealt with this in this judgment. I mean, there was a whole history of it.
KIRBY J: Old cases die with the judges who wrote them.
MR COGSWELL: Yes, that might be right, your Honour.
HAYNE J: This brings us up against the legislative nature of this process, because if 42A is what engages on this guideline judgment and if once you can identify what the guideline is, it seems at first blush that 42A obliges taking into account under Division 1 of Part 3 the guidelines thus established, whatever they are, and it becomes, in effect, the statutory provision governing the sentencing of this man by the Court of Appeal.
MR COGSWELL: Yes.
HAYNE J: Now, is that the right analysis?
MR COGSWELL: Yes, your Honour, even though ‑ ‑ ‑
HAYNE J: Well, there are several steps in it which are, at the least, not without difficulty, like, for example, identifying what the guideline is.
MR COGSWELL: Well, your Honour, the point of referring to the guideline is to demonstrate that Justice Hulme did not fall into error. I could embark upon perhaps looking at the guideline and analysing it to see just what the nature of it is and that kind of analysis, but the submission that I am making is that Justice Hulme ‑ ‑ ‑
GUMMOW J: If it was a regulation, it might run the risk of being ineffective for uncertainty.
MR COGSWELL: The guideline judgment?
GUMMOW J: Yes, but it is a form of delegated legislation, of course.
MR COGSWELL: Yes, the Chief Justice put his finger on – the passage is very short, very succinct, and just indicates that the guideline is in accordance with the judgment. But, to some extent, the principles are discernible, so that insofar as the Chief Justice says this is the guideline, the two uncontroversial principles or propositions that I have referred to – they are readily identifiable, and, in my submission, are the factors which the Chief Justice isolated, the personal deterrence and the retribution. They are fairly clear as being components of the guideline judgment. But the fundamental ‑ ‑ ‑
HAYNE J: This is perhaps not the case in which to debate it, Mr Cogswell ‑ ‑ ‑
MR COGSWELL: I am thinking that myself.
HAYNE J: ‑ ‑ ‑ but if these guideline judgments are to be employed, the end product must be something that is capable of identification and application with certainty.
MR COGSWELL: Your Honour’s remark, with respect, is noted.
GUMMOW J: A judgment in the ordinary sense is reasons for judgment which produces an order with an impact upon litigants, so you can at least point to the order.
MR COGSWELL: Yes.
McHUGH J: And its based usually on facts which are material and which give you a guide as to the real reasoning process of the court.
MR COGSWELL: Yes.
GUMMOW J: This does not have that character, but those who write it in a way think they are employed on a judicial judgment type writing task without those added components which go into the normal judicial writing task and what is produced is something in the nature of a camel.
KIRBY J: On the other hand, the Court of Criminal Appeal has been writing guideline judgments for as long as it existed, they have just not been called that, and to demand absolute certainty is to demand the impossible.
GLEESON CJ: That is the point of Mr Haesler’s argument: to demand absolute certainty is to demand the impossible. That is where we came in on the hearing of this appeal.
MR COGSWELL: Yes.
GLEESON CJ: These guideline judgments illustrate the very impossibility, do they not, of mathematical precision in sentencing? You only have to read a guidelines judgment on this quite small issue of taking Form 1 offences into account to see how unmathematical it is.
MR COGSWELL: I appreciate the force of that, your Honour.
McHUGH J: How do you deal with it? I cannot see any guidance in the judgment as to how you actually deal with it. You take it into account and they reject what they call the top down approach, but how do you do it? I can understand if you say, “Well, we look at all these offences and we have given a sentence that is proportionate to the total criminality”, but I do not know how you go about this ‑ ‑ ‑
MR COGSWELL: It might not suit your Honours, but I am going to take up Justice Hayne’s invitation – and this may not be the time to debate the guideline judgment and if your Honours wish to, of course, we can ‑ ‑ ‑
GUMMOW J: But you rely on it.
MR COGSWELL: ‑ ‑ ‑ but the point that I am making, I am defending Justice Hulme’s judgment and I am illustrating that by reference to the guideline judgment and by saying that his Honour’s judgment was consistent with the guideline judgment.
Now, two propositions of the guideline judgment are described as well established and uncontroversial so that in a sense I do not need the guideline judgment for that, so that to the extent that the Chief Justice said that those two propositions of “You will get more and it will not be insignificantly more” are uncontroversial, then I say that Justice Hulme was right there. There are two propositions developed by the Chief Justice. In fact, from memory I think I might even be able to abandon the guideline judgment – not abandon it, but do without it.
From memory, yes, the Chief Justice referred to at 41 on page 159, Barton and my recollection is – the two elements referred to by his Honour, personal deterrence and retribution, are matters which his Honour the Chief Justice had developed in a previous judgment and I think it might have been Barton. So that what I am saying is that Justice Hulme’s judgment, which is the judgment I am defending, was consistent with the established law of the Court of Criminal Appeal and so far as four months were concerned.
GLEESON CJ: Absent this guideline judgment, there would be many judicial officers in many levels of the judicial hierarchy who would not have had the faintest idea how you are supposed to take into account other offences.
MR COGSWELL: Absent the guideline judgment. Your Honours, there were decisions of the Court of Criminal Appeal, some of them referred to in the guideline judgment, others as Justices McHugh and Kirby said, which have seemed to have slipped off the slate, which gave guidance. In fact, a controversy or a division had developed within the New South Wales Court of Criminal Appeal about the extent to which an offender might expect – in fact, Justice Hulme was one of the protagonists in the difference of opinion – the extent to which an offender might expect a reduced penalty, so to speak. Guidance was available but because of the division within the CCA I expect the court decided to seek guideline judgment.
Having said that, it might be well the case that some judges would not know how to take them into account unless – but the authorities were there in the CCA. I return to the proposition that I am defending Justice Hulme’s judgment and saying that his Honour was not in error in quantifying the extent to which he ‑ ‑ ‑
HAYNE J: The amount of extra personal deterrence and extra exaction of retribution.
MR COGSWELL: Extra retribution, precisely, and the point is that they were consistent with principle established by the CCA. What I want to do now, your Honours, is to take your Honours fairly briefly through the judgment to give your Honours a sense of ‑ ‑ ‑
KIRBY J: I notice that there were no judges of appeal in this case.
MR COGSWELL: In the guideline judgment?
KIRBY J: They do not sit normally in guideline judgments? I mean ‑ ‑ ‑
MR COGSWELL: They do. I do note the same, your Honour. They do sometimes. The President – has sat in some.
KIRBY J: Do not worry about it, it is not a ‑ ‑ ‑
MR COGSWELL: I remember Justice Beazley, I think in ‑ ‑ ‑
GLEESON CJ: I think the President was a party to the guideline judgment that was in Wong.
MR COGSWELL: Your Honour the Chief Justice is correct. I had forgotten about Jurisic. The answer is, no, the Court of Appeal members will sit on them. Generally, the Chief Justice sits.
KIRBY J: Is the history you have described to us of the difference that arose, I think it is described in this case in the early paragraphs ‑ ‑ ‑
MR COGSWELL: I think it is, your Honour.
KIRBY J: I have not read this decision before, so as long as it is all set out there. Justice McHugh suggests that it is only the history up to 2000, that it does not go back to the old ancient history that we took part in.
MR COGSWELL: The schedule, as my learned friend reminds me, that is right. The schedule offences as they were called.
GLEESON CJ: Mr Cogswell, can I raise with you a difficulty I have, and can we put to one side please discounts for assistance to the authorities and discounts for plea of guilty which, at least as I see it at the moment, raise special considerations of public policy. For the rest, sentencing is a discretionary process that involves weighing a host of factors for and against the offender. How can you attribute quantified weight to any individual factor without attributing quantified weight to all the other relevant factors? How can you attribute quantified weight to one or two or three or four of 20 or 30 or 40 factors that you are supposed to be taking into account?
MR COGSWELL: Well, let us take as an example, your Honour, what Justice Hulme did in this case in his Honour’s discounting process at appeal book 100, where his Honour in his first discount, if I can call it that, paragraph 40, his Honour considers the respondent’s role:
not the principal and the charge was not to supply but only of being knowingly involved in supply . . . chauffeur . . . I would reduce my 15 year starting point by about 1/3.
So that what his Honour has then done is to, in assessing the objective seriousness of Mr Markarian’s offending behaviour, he has taken into account the fact that he was not a principal supplier, he was not an accessory technically but he was the driver of the car, and he was not actually handing over but was more knowingly concerned. So to his Honour’s mind that was translated into a reduction in Mr Markarian’s exposure to the sentence which – and I will come to this – his Honour had assessed as being – not the sentence, but the starting point which his Honour had assessed as being appropriate for the otherwise objective seriousness of the behaviour.
GLEESON CJ: Is that always on the basis other things being equal?
MR COGSWELL: It cannot be, your Honour, because they are not equal.
GLEESON CJ: That is my point.
MR COGSWELL: Yes, it cannot be. But it is – and I suppose only one way of answering this, your Honour, is to go back to Dr Radzinowicz and say it is a rough‑and‑ready process.
GLEESON CJ: These other factors are never static, they are always dynamic.
MR COGSWELL: Yes, as your Honour said in Gallagher.
KIRBY J: You have not yet really answered the criticism of starting with the 15 years.
MR COGSWELL: I am going to come to that, your Honour.
KIRBY J: Because the suggestion is that starting at 15 years is to pitch it too high, and that that has lurched this whole exercise into an excess that is apparent on the net result.
MR COGSWELL: Precisely. I was just about to embark on that process, and I will do so now. Your Honours, his Honour sets out in the first few pages background and preliminary material. Then at paragraph 17 on page 91 his Honour starts with the statute, the most important place to start. His Honour sets out the different penalties, thereby giving his Honour some sense of perspective on the relativities. His Honour then turns to what his Honour, at page 92 – so his Honour starts with a statute and then his Honour at paragraph 19 goes to the basic principles of sentencing. So far his Honour is strictly in accordance with principle:
The commencing point in any consideration . . . recognising that “the maximum penalty prescribed for an offence is intended for the worst category of case for which that penalty is prescribed” -
So to take up your Honour the Chief Justice’s reference to the solicitor in the local court, his Honour has that principle right. His Honour understands that it is the worst category of offence.
Then his Honour refers to another principle which is important to note here because his Honour will return to it – this is halfway through 19:
“In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug”.
His Honour there quotes a decision of the New South Wales Court of Criminal Appeal in Peel:
the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed –
and then his Honour goes to another classic statement of principle in the New South Wales Court of Criminal Appeal’s judgment in Dodd which his Honour sets out at 93, paragraph 22:
“There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively ‑ ‑ ‑
GLEESON CJ: Let us pause there. That is a good example of the importance of the point at which you are looking at this problem. Dodd was a case, unless my memory is playing tricks with me, in which there had been a murder and the body of the victim had been wrapped up in a blanket and taken away in the boot of a car and concealed. The difficulty in the case was that it was regarded by the police as an unsolved crime and many years later the offender, after undergoing a religious conversion and on the advice of his confessor, gave himself up and confessed. The particular question that arose in that case was what significance you would attach to that element of a belated confession where you otherwise had an objectively very serious homicide. I think he had actually ‑ ‑ ‑
MR COGSWELL: And he had received periodic detention.
GLEESON CJ: Yes, and he was given a non-custodial sentence. He had, in fact, strangled a woman while he was having sex with her, as I recollect it. Now, there you had a case that raised a very specific problem of weighing an obviously important mitigating feature of the case against what was a very serious crime, and that case concentrated on that single issue. The reference in that case to the objective circumstances of the offence was fairly plain: strangling somebody to death. The subjective feature? Again, fairly plain: giving yourself up many years later. But that was a much simpler case in identifying the objective as distinct from the subjective circumstances, was it not?
MR COGSWELL: Yes, your Honour. Now, his Honour in this case has gone through a process of identifying the objective seriousness of Mr Markarian’s offending behaviour and then he has looked at the subjective features as well. His Honour clearly forms a strong view about the objective seriousness of Mr Markarian’s offending behaviour and his Honour – and it might be that I am addressing your Honour’s concern or it might be that I am not – has regard to the gravity of the offence viewed objectively. In approaching the sentence for Mr Markarian his Honour, as I will demonstrate, looks first at the objective features of Mr Markarian’s offending behaviour because that is what Dodd says should be the context for the sentencing, because unless that happens then the other factors cannot be properly given their place.
GLEESON CJ: Does that just mean the elements of the crime?
MR COGSWELL: No, it might mean that it was committed on parole. It might mean that it was a very serious example. There might be some particularly aggravating features of ‑ ‑ ‑
HAYNE J: You said Justice Hulme identified them. What were they in this case? Not what they might be. What were they?
MR COGSWELL: I will come to that, your Honour. He very clearly identified them. So his Honour has referred to the statute, referred to, if I can adopt Chief Justice Spigelman’s phrase, uncontroversial and clearly established propositions which are entirely appropriate sentencing principles, and then his Honour – and this answers directly your Honour Justice Hayne’s question – embarks on the process of assessing the objective seriousness of Mr Markarian’s offending behaviour. He embarks on that process in paragraph 24. In paragraph 24, his Honour commences with a quotation which his Honour does not attribute, but which comes from Peel, which his Honour had quoted on page 92 of the appeal book. His Honour opens the quotations:
“The degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct . . . offend(ed) against the legislative objective of suppressing the illicit traffic in the prohibited drug” was substantial.
So that is his Honour’s opening remark about assessing the objective seriousness, and then his Honour goes into more detail:
Albeit it was a long way short of the 999.9 gram maximum –
it was nevertheless 415 –
[it] well exceeded the 250 grams upper limit for an indictable quantity for the supply of which Parliament had seen fit to prescribe a maximum penalty of 15 years.
Halfway through, once again focusing, your Honour Justice Hayne, on Mr Markarian’s behaviour:
The Respondent’s activities extended over a period of almost 6 months.
Another example of objectively serious behaviour.
GLEESON CJ: How do you do these mathematics where the maximum penalty is life? Do you start by working out how long he has to live?
MR COGSWELL: No, your Honour. Your Honour, I am not here defending a mathematical approach to sentencing. It might sound otherwise, but what we are defending is that it is not an error for a sentencer to approach a sentencing process by a staged or two‑tier process, provided, and it is always a proviso, that there is no error in principle. If, for example, a sentencer took a life sentence and in some way did some mathematical calculation which had no basis or was clearly erroneous, it should be struck down; it should not stand. What we are defending is the fact that, for policy reasons and for principle reasons, the courts have seen fit in many States to encourage the discrete quantification of discounts or things taken into account. We say it is not an error for a judge to engage in that process, and it was not an error for Justice Hulme in this case to engage in that process.
So in assessing the objective seriousness of Mr Markarian’s behaviour over six months, it amounted to – and his Honour clearly takes a strong view – conscious, deliberate criminality, day after day, for reward, even if that reward was in the form of drugs. At the time, he was on parole – a seriously aggravating feature – and had previously been convicted of supplying prohibited drugs and imprisoned. So that is part of his Honour’s objective assessment of the seriousness of Mr Markarian’s criminal behaviour. It is not the criminal behaviour of some hypothetical person or just looking at the section itself. His Honour actually assesses Mr Markarian.
His Honour then looks at – and continuing with the assessment, he acknowledges that Mr Markarian at paragraph 25 was not a principal. His Honour then turns to the Form 1 offences and assesses the seriousness of those. His Honour at paragraph 30 enunciates the principles to do with Form 1 and his Honour clearly commits no error of principle in paragraph 30. His Honour is perfectly clear about:
no separate penalty for these 4 offences could be imposed and the maximum available remained at 20 years –
and there your Honour Justice Kirby in the next sentence, is a reference to the controversy which had developed where his Honour Justice Hulme, as I said, was one of the participants in that controversy:
Nevertheless, it is clear from authority cited in R v AEM that where serious offences are included in a Form 1, the ultimate sentence must still reflect the totality . . . wrong in principle –
ever little so that his Honour discusses the principles to do with Form 1. Then his Honour terms to subjective features for Mr Markarian himself. His Honour recognises or considers at the top of 97 five factors: the plea, contrition, addiction, and about 97 point 25 rehabilitation, and at about 97 point 35 is the previous convictions. And then his Honour at 32 considers the objective seriousness of the Form 1 offence, an entirely appropriate process, a principled process because his Honour is required by the legislation to take into account the Form 1 offences, so he is there assessing the seriousness of the Form 1 offences. Then his Honour embarks ‑ ‑ ‑
KIRBY J: Can I ask you to just pause at that moment.
MR COGSWELL: Yes, your Honour.
KIRBY J: I must admit that my impression is, having seen a number of these many years ago, that the quantification of increase is a high taking into account. Now, I do not know if that is an erroneous impression. I do read what was said in the guideline judgment, that at some times it has to be substantial. But after all is said and done, he may never have been caught, may never have been prosecuted, it is desirable that these things should be said, and he has never been tried, the community has not been put to the cost, he has never been convicted by a jury and my impression is that take into account is really a bit like Crown appeals mean a very modest taking into account, because sometimes the list is extremely long ‑ ‑ ‑
MR COGSWELL: Yes, your Honour, yes.
KIRBY J: I just have to tell you that that is an impression, and that may have been an erroneous taking into account, I do not know, but my impression is that this is quite a high taking into account for this offence in this case. Now, I do not know how to rid my mind of that fact, if it is a fact, but, watching those cases, one tended to get an impression that there was not generally a very big increase in the primary sentence at all in such cases. Maybe that was erroneous.
MR COGSWELL: Your Honour, there was a reference to the ‑ ‑ ‑
KIRBY J: You are looking now at 56 NSWLR, are you?
MR COGSWELL: No, I am looking at an unreported judgment called AEM, your Honour, because ‑ ‑ ‑
KIRBY J: Mention of that name appears to have caused consternation amongst your opponents.
MR COGSWELL: Yes, I got that impression, your Honour. I will revert to the uncontroversial proposition which the Chief Justice enunciated, and I hesitate to go back to the guideline judgment ‑ ‑ ‑
KIRBY J: But can I just ask you, my impression, speaking of the past before this recent guideline judgment, is that a correct impression or am I wrong? Am I remembering things wrongly?
MR COGSWELL: Some years ago, your Honour, it was a correct impression – that is subject to my learned junior’s recollection as well – that it may well have been that not much was added, but in more recent years, and culminating in this guideline judgment, the position has firmed up. So that it is made clear – and I think Morgan was one of the cases, Murrell, Morgan – that, as the Chief Justice said, it is wrong to suggest that the additional penalty would be small. Sometimes it will be substantial.
KIRBY J: Well, if we have those, I will simply read those. Do not tarry now to go over it. It just was my impression that they were taken into account but there was such a public interest in clearing up and in getting clean slates that they were taken into account, but that there was not really very much added to the primary sentence, whereas – in this present case with the appellant was there any real prospect that the Crown could have found this additional acknowledged offence and prosecuted and got a conviction for it? If not, you are adding two years to his notional adjustment ‑ ‑ ‑
MR COGSWELL: Eighteen months I think but, yes.
KIRBY J: ‑ ‑ ‑ 18 months – in a way that is very discouraging to acknowledgement and, therefore, to the clean breast it is important to rehabilitation and to the cleaning up of police records and past offences. I mean, who would ever acknowledge the long lists I have seen in Form 1 in my time in the Court of Criminal Appeal? Who would ever do so? There is a very big disincentive if you are going to effectively get a real allowance of sentence even though you have not gone through, nor put the community to the expense of, a criminal trial. Why not take your chances?
MR COGSWELL: Yes, your Honour. That is one of the features about taking into account Form 1, that the offender can ‑ ‑ ‑
KIRBY J: That is why Parliament used the word “take into account”, not “he shall be sentenced for”.
MR COGSWELL: Yes, but, to answer specifically your Honour, the courts firmed up on the extent to which – at least the New South Wales Court of Criminal Appeal – the sentence on the primary offence may be affected. In Morgan 70 A Crim R 368, a judgment of the New South Wales Court of Criminal Appeal, which your Honours do not have, Chief Judge at Common Law, Mr Justice Hunt, with whom Mr Justice Loveday agreed, said at 372:
Whatever the practice may have been before Vougdis, it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s 21 –
as it then was. So that it is a weighing process, your Honour. On the one hand there is the interests of, as your Honour says, the cleaning of the slate and incentive for the offender to accede to the process. On the other hand there is the responsibility of the court in the administration of justice to ensure that appropriate penalties are imposed in respect of offending behaviour which is put on the Form 1, and the courts have indicated that. Morgan was decided in 1993, so that it is now at least some 10 years since that proposition.
In response to your Honour’s question, it may have been an impression some years ago that was kind of given nominal acknowledgement in the sentence, but since Morgan that impression has been done away with by authority. My attention is drawn to the descriptions of the Form 1 offending which are contained in page 63 of the appeal book as illustrating the facts of the Form 1 offence. The first one on the Form 1 as is set out is:
The offender was using a portion of this heroin himself –
which was two to three grams of heroin daily over about six days –
and supplying the remainder to drug users in the Chatswood area. During the period of the offence the offender sold more than 5 grams of heroin.
That is very serious offending behaviour and may I put it this way, your Honour, his Honour was not in error in this case, in our submission, in giving the weight that he did to – given the facts that I have just read out about the Form 1, given the principle which bound his Honour so far as Morgan and the judgments since then - his Honour was not in error in taking a serious view about that Form 1 and his Honour was not in error in articulating that view.
Now, we have got to the stage of his Honour reasoning to a conclusion and this is where his Honour embarks upon the process which is perhaps the subject of the main controversy in this case. At 98 in the appeal book in paragraph 33, his Honour refers to the:
weight of authority in favour of sentences being determined by instinctive synthesis . . . However, as one who has had to carry out the sentencing task both in this Court and at first instance, and to examine innumerable sentences imposed by others, my experience is that there are far more advantages in reasoning to a conclusion.
That is a product of his Honour’s great experience in sitting at first instance and on appeal in ‑ ‑ ‑
GLEESON CJ: Can I ask you a question about your experience?
MR COGSWELL: Yes, your Honour.
GLEESON CJ: I have seen many judgments which adopt a starting point of a range or a certain range of sentences, sometimes a range taken from sentencing from the SAS statistics. Have you ever seen a judgment that adopted a process taking as its starting point not a range or a tariff but the maximum penalty?
MR COGSWELL: Well, I am thinking of Garforth where a life sentence was imposed ‑ ‑ ‑
GLEESON CJ: No, I am not talking about a judgment that says this case deserves the maximum.
MR COGSWELL: Where? No, I cannot recollect it.
GLEESON CJ: I am talking about a judgment that reasons down from the maximum by a mathematical process.
MR COGSWELL: Yes, the answer is no and nor did Justice Hulme in this case.
McHUGH J: Well, I do not know about that. I mean, if you look at paragraph 37, he commences with a maximum sentence if the respondent case had:
fallen within the category of a worst case falling within the statutory provisions ‑ ‑ ‑
KIRBY J: Which clearly it was not.
McHUGH J: So that is his starting point and if that does not invite error, I do not know what does.
MR COGSWELL: Your Honour, can I go to that because this is the – what his Honour has done, the maximum for this offence and your Honours can see going back to page 91 of the appeal book where his Honour sets out the various provisions of the Drug Act, if I can call it that. In (iii) his Honour refers to:
the quantity is less than 250 grams and the matter is dealt with on indictment, 15 years imprisonment – s32;
(iv) where the quantity is not less than 250 grams but not as much as 1000 grams (a “commercial quantity”), 20 years imprisonment – s33(2) -
The offence in this case was the commercial quantity, section 33(2), so the maximum is 20 years. Now, we go back to paragraph 37 and the first thing to observe, your Honour – and this is an important observation – is that his Honour does not make a finding that Mr Markarian’s behaviour was in the worst category. He says “had”:
Had the Respondent’s offence and circumstances fallen within the category of a worst case falling within the statutory provisions, the sentence should have been not less than the 15 years maximum for the offence of supplying an indictable quantity.
McHUGH J: I know. Then when he goes over to page 100, he says that his starting point of 15 years has to be reduced by a third because there are factors that:
remove the offence from a worst case category – his role, his plea, the finding of contrition –
His worst case category is in relation to a maximum offence, which is not the maximum penalty for what he is charged with.
MR COGSWELL: That is right, but all his Honour has done is, for the purposes of providing himself with a perspective – Parliament, in this case, has created a hierarchy of offences of the same type, varying only by weight, and a hierarchy of corresponding penalties. His Honour has taken into account, as your Honour Justice McHugh observes, the maximum for the offence below. His Honour does that – his reasoning, one can see, if we go back to 37:
I appreciate that the charge specified a commercial quantity, that the maximum period of imprisonment prescribed for that offence is 20 years and that the quantity involved in this offence was only a little more than 40% of the maximum commercial quantity. However –
and this is the reasoning process –
Parliament cannot have intended that, other things being equal –
That is the important qualification. His Honour is, may I say, not trying to set a sentence at this stage, but this is the commencement of a reasoning process. What we are seeing here is articulated a process that may well occur unarticulated. It may well be a process that many judges feel is very helpful, where they say, “Well, if I go down one, that is the particular maximum there, and this is a bit more serious than that, so I will start there”. In other words, his Honour is simply articulating the process by which he is coming to a view –
Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 grams should be less than for supplying that quantity.
McHUGH J: That raises more questions than it answers. What does he mean by “other things being equal”? It seems to assume that Parliament intended that you would get 15 years, irrespective of the circumstances. It may be that you have supplied 500 grams and yet Parliament would not have intended you to get 15 years.
MR COGSWELL: When your Honour says other things being equal ‑ ‑ ‑
CALLINAN J: It makes quantity all important. It makes quantity the be‑all and end‑all.
MR COGSWELL: But this is a commencement of the reasoning process, your Honour, and his Honour then, later on, qualifies that initial finding ‑ ‑ ‑
CALLINAN J: Well, no, I do not think it is a commencement. I think it is an essential part of his reasoning.
MR COGSWELL: I agree it is essential, your Honour.
CALLINAN J: Without it, the chain of reasoning would collapse. That is what I think.
MR COGSWELL: Well, the result would not be the same. His reasoning commences at 15 years and finishes at eight, through a series of steps which one can discern as one goes through the judgment.
HAYNE J: No doubt you can discern them, but we begin from 15 for the offence and offender’s circumstances falling within category of worst case, correct? That is the start point, see paragraph 37.
MR COGSWELL: No
HAYNE J: Paragraph 37, introductory ‑ ‑ ‑
MR COGSWELL: Yes, if they had been. Yes, had they fallen within the worst category, then 15 years, which is five years less than the maximum ‑ ‑ ‑
HAYNE J: Yes, should not have been less than 15.
MR COGSWELL: ‑ ‑ ‑ was not inappropriate, yes.
HAYNE J: We then go via paragraph 40 to reduce by a third.
MR COGSWELL: We are down to 10.
HAYNE J: How do we take the third? Yes, it is plucked out of the air, but what is the process of reasoning that is said to be engaged to go from this notional maximum for the worst offence and worst offender to this mathematical number of one‑third?
MR COGSWELL: Well, the process, your Honour, is first one starts with the findings which his Honour made about the objective seriousness of Mr Markarian’s offending behaviour. His Honour took a very serious view about that and that is why his Honour perhaps commenced as high as 15 years and then the process which your Honour – well, let us go back to 39. His Honour said that there are five topics which may have operated to remove the offence from a worst category – role, plea, et cetera – and his Honour commences with the role and acknowledges the two things which I mentioned in answering the Chief Justice’s question and then his Honour ‑ ‑ ‑
HAYNE J: The unstated premise of that is the assignment of content to the worst case. Now, never done and the notion of a judge being able to assign the characteristics of worst offending, worst case is intrinsically very difficult, at the least.
MR COGSWELL: Yes.
HAYNE J: Yet that is the starting point for the reasoning. Now, why does the reasoning not then collapse on itself?
MR COGSWELL: Because, your Honour, for a start his Honour had started the reasoning process with an assumption, with an hypothesis. Let us assume that it was in the worst case, then 15 years would not be an unreasonable starting point – not 20, the maximum, but 15 years. So his Honour then asks himself the question, “Well, where do we go from there? What takes it out of there?” In other words, what his Honour is trying to do, if I can put it this way, is to get a handle on how to approach this sentencing task and the way his Honour – and perhaps this goes back to the Chief Justice’s question ‑ ‑ ‑
HAYNE J: And you end up with reasoning which is of the 40 per cent fewer cavities kind, namely, you have no valid comparison from which the 40 per cent is derived. It is a third less bad.
MR COGSWELL: Yes, your Honour, but ‑ ‑ ‑
HAYNE J: Than what?
MR COGSWELL: The whole process, your Honour, is one which – as I said before lunch, the currency is numbers, the currency is years. That is what sentencing judges are dealing with when they are sentencing for custodial sentences, which this case obviously is. The first proposition is the currency is years, is numbers. The second proposition is Dr Radzinowicz’s proposition about it being a rough and ready process and needs to fit in with society as an ongoing process. So some judges find it convenient to deal with that in a way which involves discounts or percentages or numbers to assist their reasoning process. Other judges may not articulate that.
McHUGH J: But Mr Cogswell, the moment you look at what the judge took into account to reduce the third shows the fallacy of what he regarded as the worst case. He took into account as deductions from the worst case the role, plea, finding of contrition, his addiction and matters which fall within the topic of rehabilitation. So if they were not present, this was the worst case, that is, if he had supplied more than 250 grams, he had pleaded not guilty, he was not contrite, he was not addicted and he was unlikely to be rehabilitated, then he should get 15 years because it was the worst case. Now that demonstrates, with great respect, the absurdity of the proposition, does it not? That could not possibly be the worst case on those facts, but that is what it seems to come to. But if you supply more than 250 grams, then it is the worst case if that is all you know about the case.
MR COGSWELL: Well, no, you know more than that about it, your Honour, because his Honour made the findings about the objective seriousness which he set out earlier in his judgment. His Honour took a very serious view about the repetitive behaviour, the period of time over which it occurred, the amount of the drug, the fact that he had a previous conviction for supplying heroin, the fact that he had a Form 1 for a third offence of supplying heroin.
His Honour was entitled to take the view, and particularly in light of the facts, the facts in the Form 1 and the facts of the offending behaviour, his Honour was entitled to take a very serious view. Perhaps the question is whether it was open to his Honour, whether his Honour was in error in regarding this as a worst category, but that suggests that his Honour made that finding. My proposition is that it was a starting point in his Honour’s reasoning. It was an hypothesis which his Honour posed at the commencement of his reasoning, something to work with, something to articulate.
CALLINAN J: Mr Cogswell, does not his Honour’s statement assume that every case involving more than 250 grams is likely to be a worse case than every case involving 250 grams?
MR COGSWELL: All other things- other things being equal, yes. His Honour qualifies it by ‑ ‑ ‑
CALLINAN J: But all other things are never going to be equal.
MR COGSWELL: No, no, but it is an hypothesis, your Honour.
CALLINAN J: No, his Honour stated that as I read it at line 25 on page 99 as an absolute proposition.
MR COGSWELL: Sorry, your Honour is at ‑ ‑ ‑
CALLINAN J: Paragraph 37, line 26.
MR COGSWELL:
However Parliament cannot have intended that, other things being equal, the penalty for supplying more than ‑ ‑ ‑
CALLINAN J: If that mean that every case involving more than 250 grams has to be worse than every case involving 250 grams, which makes quantity the be‑all and end‑all.
MR COGSWELL: Your Honour, reduced to its simplest, the proposition which his Honour advances there is that singling out just one factor, namely the weight, one is more serious than the other because his Honour qualifies it by reference to other things being equal. And then his Honour later on goes to the things which detract from it being equal, if I can put it that way. So his Honour proceeds to reduce by a third at paragraph 40. His Honour considers the addiction at paragraph 42 and at page 101, the last line of 42, or the last sentence:
no basis for reducing the sentence from that otherwise appropriate.
His Honour considers the plea together with contrition over 43 to 44 and considers at the end - his Honour is at the foot of 101 disposed to allow the 25 per cent which his Honour did and I might add your Honour, so that notionally, his Honour has gone from – and this may either persist or aggravate the situation, 15 years in paragraph 37. At paragraph 40, line 16, he reduces the 15 years by a third, so he is down to 10. At the foot of page 101 he reduces it by 25 per cent, and I am really just exposing the reasoning here, so notionally we are going from 10 to 7.5.
Then his Honour deals with the Form 1 at paragraph 45, and he has already formed a view about the seriousness of the Form 1, so he increases the provisional sentence between 18 months and two years – I thought it was 18 months. So it goes from 7.5 up to either 9 or 9.5. His Honour then considers the rehabilitation in paragraph 46, and concludes at the end of that paragraph, about two thirds of the way through:
I am disposed to reduce the sentence to a limited extent –
So that one might think that he takes it from 9 or 9.5 perhaps down to paragraph 8. Then his Honour concludes in paragraph 49 with the eight years:
Thus, on the basis of the matter to which I have referred, I would impose on the Respondent a sentence of 8 years.
Then his Honour – and this is in response to your Honours Justice Kirby and Justice Gummow:
I make it clear that in arriving at it I have taken account of the fact of the double jeopardy to which the Respondent has been subjected and selected a sentence which is the lowest that could reasonably be imposed.
May I, at this point, address that question of a Crown appeal. Your Honour, this is a judgment of an intermediate appellate court, the Court of Criminal Appeal, by a very experienced judge. It is safe to assume that his Honour was very familiar with the principles which govern Crown appeals, and, indeed, he acknowledged those principles in paragraph 49.
GUMMOW J: Where is the reference to double jeopardy again?
MR COGSWELL: It is paragraph 49, your Honour, page 103 of the appeal book, about in the middle.
KIRBY J: But the statements in this Court in Everett and other cases are very, very strong, and when his Honour says, “This is the lowest that could reasonably be imposed”, and yet that which is imposed brings this offender, a chauffeur, to roughly the same level as the principal, then you just have to ask whether his Honour has in mind the kind of modification of the sentence that is imposed that this Court was talking of in the line of cases. I mean, that is the net result. I just do not think this is the lowest that could reasonably be imposed.
MR COGSWELL: Your Honour, the answer ‑ ‑ ‑
KIRBY J: It may be that it is because of the starting point that his Honour took.
MR COGSWELL: No, your Honour, the answer to that question is in the parity. The principal got eight years. I think he got five and three – is eight. I think your Honours have the remarks on sentence of his Honour Judge Shillington sentencing Mr Caccamo. I think my learned friend might have supplied them. I am going to take your Honours to page 4, just over halfway:
The prisoner has cooperated with crime investigating agencies and I have received a letter detailing assistance, together with sixteen undertakings –
they are an exhibit –
It is not appropriate that more should be said in this regard except to describe the prisoner’s contribution to criminal investigation as substantial. It is inevitable that the prisoner’s assistance will require any sentence to be served in protective custody. I am informed that since going into custody this has been the situation. His family must [be] regarded, also, at some risk –
and he regards that “in a global fashion”. Then, your Honour:
If it were not for matters of contrition, demonstrated by the pleas of guilty and assistance, I would have imposed overall sentences of fifteen years imprisonment.
So that is the factor, your Honour. Then his Honour, in the next sentence:
In the event, on count one in the 51A document I sentence the prisoner to imprisonment for eight years, taking into account the charges in the Form 1. There will be a non parole period –
So the answer to your Honour Justice Kirby’s question is that without the co‑offender’s, the principal’s, substantial assistance to authority, which had serious consequences for that offender, the notional sentence was 15 years.
KIRBY J: Yes, but that involved dragging down with him all the people who he had used, who were themselves, in the case of this appellant, addicted to the drug and paid them with the drug and set them loose upon the community with the drug, and he gets eight and five and this man gets eight and four and a half.
McHUGH J: And add to this, this is a Crown appeal. How can you justify the fact that it appears from the statistics the judge referred to that only 10 per cent of offenders for this offence got the same sentence as this defendant, nobody got more and 13 out of 22 got less than six years imprisonment? This is a Crown appeal and he gets the maximum that anybody has got for this offence. That is pretty hard to justify on a Crown appeal.
MR COGSWELL: Well, your Honour, that relies upon the statistic. That is at the end of his Honour’s judgment when his Honour refers to the statistics. The statistics, of course, are based upon District Court and Supreme Court and Court of Criminal Appeal judgments and it may be that they do not necessarily reflect what is an appropriate sentence and his Honour may well be entitled to – and I think his Honour ‑ ‑ ‑
KIRBY J: But we are just asking whether it is the least that could reasonably be imposed. I mean, it is pretty hard to say this is the least that could reasonably be – this is the highest that could reasonably be imposed.
MR COGSWELL: With respect, your Honour – and it is important to bear this in mind – his Honour made very serious findings against Mr Markarian. Mr Markarian faced the court with a previous conviction for supplying heroin. He had committed the offence ‑ ‑ ‑
KIRBY J: Yes, working for Mr Caccamo, being paid with the drug.
MR COGSWELL: Yes. Nevertheless, your Honour, his Honour faced being sentenced with a prior conviction for doing exactly the same and committed this offence, the one on the indictment, during a period whilst he was on parole and the ‑ ‑ ‑
KIRBY J: Can you tell me did the Crown assist the Court of Criminal Appeal with a suggested substituted sentence?
MR COGSWELL: I do now know the answer to that question, your Honour.
KIRBY J: Because the Crown in my experience, in my days in the Court of Criminal Appeal, was very fair in matters of Crown appeals and I just do not see that evident in this appeal I have to say.
MR COGSWELL: Your Honour, I do not adopt that, but I do not know – I have not seen the submissions in the Crown appeal. I have not seen the submissions which were put in by the Crown Prosecutor, so I cannot answer that question. But what I can say is that his Honour was entitled to take a very serious view of Mr Markarian’s offending behaviour.
GLEESON CJ: Mr Cogswell, you or Mr Smith may be able to answer this question. Quite recently we gave a judgment on a matter in which there had been an argument that there had been some previous inconsistent statements in this Court about the approach that a sentencing judge might take – he could choose to do it one way or he could choose to do it another. We said, I think, he can choose to do it either way provided he gets to the right result. Do you know what that case was?
MR COGSWELL: We are thinking it might be Johnson, your Honour.
GLEESON CJ: I just had in mind the earlier discussion we had about a role of an appellate court and the flexibility that ought to be available to judges making discretionary decisions as to the way they actually go about it.
MR COGSWELL: It might be Johnson v The Queen (2004) 205 ALR 346, your Honour, which I do not think has reached the Commonwealth Law Reports yet.
GLEESON CJ: Yes, it is in paragraph [2].
MR COGSWELL: Yes, I am looking at that, now.
GLEESON CJ:
[T]he two alternative courses said in Mill to be available to sentencing judges ‑ ‑ ‑
MR COGSWELL: Yes, that is it, your Honour.
GLEESON CJ: It is elaborated in paragraph [5].
MR COGSWELL: So his Honour reaches the period of eight years and sets a non‑parole period of four ‑ ‑ ‑
KIRBY J: Of course, all of that is posited on coming to the right result, but if you look at eight and five and eight and four and a half and you think it is the wrong result, or at least arguably the wrong result, then you have to look into the manner of reasoning.
MR COGSWELL: In comparing with Mr Caccamo’s?
KIRBY J: Yes. There is no evidence that any thought whatsoever was given to that result.
MR COGSWELL: I am sorry, which result, your Honour?
KIRBY J: The relativity with Mr Caccamo.
MR COGSWELL: I think his Honour looked at that ‑ ‑ ‑
McHUGH J: His Honour said:
[His sentence] seems light for a professional drug dealer ‑ ‑ ‑
MR COGSWELL: At page 104, paragraph 53.
McHUGH J:
I do not see the sentence on Mr Caccamo as arguing against that which I have foreshadowed.
MR COGSWELL: His Honour regarded it as “light for a professional drug dealer”.
KIRBY J: Well, he does not explain why he does not see it as against, when there is such a difference in the criminality of Mr Caccamo.
MR COGSWELL: His Honour does not explain it, but when one reads the remarks on sentence of Judge Shillington ‑ ‑ ‑
KIRBY J: But Mr Caccamo was a principal. He was the one who was employing Mr Chung, Mr Barba and the appellant.
MR COGSWELL: And the appellant. That is right, your Honour, but Mr Caccamo ‑ ‑ ‑
KIRBY J: He was feeding this man with the drug.
MR COGSWELL: But Mr Caccamo also co‑operated with the authorities to an extent which the sentencing judge regarded as substantial and had very significant impact upon him as a prisoner and upon his family. They were factors which that sentencing judge legitimately could take into account. So it is not as if there are two figures which do not have an explanation for the apparent inconsistency, if I can call it that, although they are very close. There is an explanation.
GLEESON CJ: Actually, the reasoning of Judge Shillington, who is an enormously experienced sentencing judge, is itself a kind of model, in the sense that he makes clear what he would have given Caccamo but for his assistance with the authorities, and then he takes a number of factors into account, but without attributing any mathematical specificity to them, and arrives at a final conclusion. That is the orthodox way, is it not?
MR COGSWELL: Yes, it is the orthodox way, except to the extent that his Honour actually specified the sentence which his Honour may have given.
KIRBY J: It sounds like the two‑stage approach to me. There is the objectively correct sentence of 15 years ‑ ‑ ‑
GLEESON CJ: What it is doing is, and I think we noticed this earlier, specifying or indicating clearly a discount that somebody has got for assistance to the authorities, for reasons of public policy.
MR COGSWELL: Yes. My rhetorical question in the submission, your Honour, is what is the difference between the process which his Honour Judge Shillington went through, which is, as your Honour says, perhaps a classic process, and his Honour Judge Shillington saying, “I would have imposed overall sentences of fifteen years, but, because of the factors which I have referred to, I propose to discount that by just under 50 per cent, and I impose a sentence of eight years”, which comes back to the question of it being semantics and really a matter of appellate courts not dictating the form in which primary judges deliver their reasons for sentence.
In my submission, there is no difference in those two formulations of what his Honour Judge Shillington might have done and neither of them is infected by error but in one of them it is expressed in terms of percentages. As it happens eight years is a little bit over half what Judge Shillington would have started with and I think ‑ ‑ ‑
McHUGH J: Not what he would have started with but what he would have given him.
MR COGSWELL: Yes, what he would have given him. That is, with respect – there is one typographical error on page 8 of our written submissions 6.11 “take into account assistance to authorities”. In (c) it says see section 33. That should read “23”, your Honours, and I need not elaborate on that. Pages 8 to 9 develop the argument that legislation these days inclines sentencing courts towards a sequential or two‑tiered approach to sentencing and perhaps the best example is (b) section 22 of the Crimes (Sentencing Procedure) Act where a court ‑ ‑ ‑
GLEESON CJ: It is very modest to describe the number of tiers involved in this case as two.
MR COGSWELL: I am sorry, your Honour?
GLEESON CJ: It is about a six‑tiered approach, is it not?
MR COGSWELL: It is, yes. I am defending a six tiered – something about that, yes. Two or three places his Honour discounts the sentence. Now, my submission is that nowhere is in that ‑ ‑ ‑
GLEESON CJ: I think that if you looked at the statute you could have a 27‑tiered approach.
MR COGSWELL: If one looked at 21A?
GLEESON CJ: Yes.
MR COGSWELL: Yes. Now we are not sure, we cannot reach agreement as to whether 21A was applicable or not. It came in – we certainly agree that the present 21A was not applicable. There was a predecessor section 21A and its applicability depends upon when Mr Markarian was first charged in court but I might, whilst my learned friend is in reply, see if we have reached agreement on that. Looking at section 22 ‑ ‑ ‑
GLEESON CJ: If you cannot reach agreement this afternoon you can send us a note next week.
MR COGSWELL: Thank you, your Honour. Section 22 of the Crimes (Sentencing Procedure) Act says that the court must give separate consideration to a guilty plea and if it does not if has to give reasons so that the statute encourages a two‑stage approach to sentencing and that is what sentencing courts are faced with.
KIRBY J: It looks like 15 April 2002 for the earlier 21A.
MR COGSWELL: The earlier 21A, yes.
KIRBY J: It did not last long.
MR COGSWELL: Yes, I will just look at that. So, your Honours, to finish, subject to any further questions from your Honours, with the proposition I opened with, the only golden rule is that there is no golden rule and the proposition that we ask this Court to adopt is it is not an error for a sentencing court to engage in a sequential or two‑tiered sentencing approach provided all the relevant sentencing principles are considered and appropriately applied to the circumstances of the case. If the sentence is not otherwise infected by error, the form in which the sentencing judge chooses to approach the task ought not be the subject of a declaration of error. They are our submissions, may it please the Court.
GLEESON CJ: Thank you Mr Cogswell. Yes, Mr Haesler.
MR HAESLER: Your Honours, I do not intend to address further that script or that process known as two-staged where there is a discrete discount for things like the plea of guilty and the assistance to authorities, we say that can be put into a separate category. So far as the other categories of staged approach are concerned it is that particular type of process that we are particularly concerned with here. If I might then go through your Honours’ comments about the decision of Acting District Court Judge Shillington, he, we say, did what Judge Hosking did which was formulate a sentence by reference to all of the relevant factors and then make a discrete discount, in Judge Hosking’s case, simply for the utilitarian aspects of the plea of guilty; in Judge Shillington’s case, for the assistance to authorities.
When Judge Shillington came to make that reduction for assistance to authorities, he had to apply section 23(3) of the Crimes (Sentencing Procedure) Act which specifies that the revised sentence must not be unreasonably disproportionate to the nature and circumstances of the offence. So no matter how much assistance is given that restriction applies.
GLEESON CJ: It is a bottom limit.
MR HAESLER: It is a bottom limit, yes; and it is perhaps the only provision in the Crimes (Sentencing Procedure) Act where there is a bottom limit. That limit does not apply to the guilty plea nor does it apply to any of the – if one was looking at the new section 21A, the mitigatory factors which are specified there. If one looks at the common law mitigatory factors such as youth, mental illness and things of that nature, they can significantly reduce a sentence, they are not so limited; only the assistance to authorities is so limited.
Mr Caccamo came to be sentenced for four significant supply matters, one of which was a large commercial quantity involving a maximum penalty of life imprisonment if one wants to use that as a reference point. He was not sentenced for the same offence as the present appellant. Some of his dealings may have been rolled up in those offences for which he was being chauffeured by the appellant, but it was a significantly larger operation and involved over three kilograms of the ‑ ‑ ‑
KIRBY J: Was the sentence applicable or was the sentence applicable at that time to commercial quantities?
MR HAESLER: Not less than the commercial quantity was 20 years, which is our offence. The large commercial quantity carried life imprisonment as a maximum.
KIRBY J: So Mr Caccamo faced life and got eight and five. Your client faced 20, not 15 and got eight and four and a half.
MR HAESLER: Mr Caccamo was also dealt with for supplying the drug. We were charged as knowingly concerned in supply. In some circumstances that may be just as severe, in other cases it may not. We say in response to – although my submissions in regard to this are brief and they are addressed in the written submissions, the resentencing process when it came to considerations of matters of principle relating to Crown appeals, did not show the slightest restraint.
If I might just then address briefly some matters which arose in argument with my friend. The Chief Justice referred to the decision of Dodd and that illustrates two important factors. The first is that there are gems which flow from the superior courts which are particularly useful, but it is even more useful to be aware of the facts which led to those statements of principle and the Chief Justice was helpful in his elucidation of what occurred in Dodd. Similarly, I referred you earlier to what occurred in Peel where a man had received a bond initially for importing a large quantity of cannabis. We say that when one goes back to the judgment of District Court Judge Hosking, he clearly took into account the seriousness of what Mr Markarian had done and his Honour made no bones about that in his judgment in a passage which can be found at paragraph 79 of the appeal books:
There is no question that the indictment offence is an extremely serious one involving, as it does, the supply of heroin –
and then he goes on. Judge Hosking was cognizant, just as was Justice Hulme, of the seriousness of the offence.
KIRBY J: Well, he said that and I pay respect to that, but what are we to do where the Court of Criminal Appeal, which has much more experience with sentencing standards and see so many cases and is comprised of sentencing judges, what are we to do with your preliminary point that there was no error authorising them to reach the view that they had the key to open appellate intervention?
MR HAESLER: Well, the preliminary point comes back to how they reached that conclusion. The basic principles of sentencing which Justice Hulme set out, we say, either were not basic principles of sentencing or were addressed in the judgment of Judge Hosking.
If one looks at the four which were identified, and I will not – we have set them out at paragraphs 5.4 through to 5.5 of the written submissions. The basic principles, as I see, that were referred to by Justice Hulme were the greater the quantity of drugs supplied, the greater the penalty. We say that is not necessarily a basic principle of sentencing. The commencing point for the consideration of an appropriate sentence is the statute – well, that is – and the maximum penalty provided. Once again, that is a reference point rather than a commencement point. That a court must not be weakly merciful – once again, mercy can be a role of a sentencing court – and should impose a sentence commensurate with the seriousness of the crime, which is the point which was discussed between the Chief Justice and my learned friend from Dodd, and the need for reasonable proportionality between the sentence and the circumstances of the crime, which is, of course, a principle that is relevant to any sentencing process and one that we say Judge Hosking engaged in.
So we do take issue with what could be regarded as the formal finding of error. Then the process engaged in by the Court of Criminal Appeal in the resentencing exercise illustrates, we say, an error of approach which does not indicate error in Judge Hosking. In fact, Judge Hosking’s approach was a classical one and an appropriate one and one regularly carried out by judges at first instance.
To take Justice Kirby’s point about the role of appellate courts, yes, of course they have a greater overview and control when it comes to consistency in sentencing, but it has also been recognised that appropriate recognition must be given to those who daily must sentence prisoners and are able to gauge at first instance the appropriate penalty demanded. That was a point made by the then Chief Justice in Griffiths v The Queen. That is at page 310.
The Chief Justice asked of my friend can a mode of reasoning lead to error, and we say the answer to that question is yes. The joint judgment of Justice Gaudron, Justice Gummow and Justice Hayne in Wong v The Queen at paragraph 76 noted that:
The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal –
So if the approach is in error, the mode of reasoning is in error. Yes, this Court and an appellate court can indicate that that mode of reasoning will lead to error, and we say that is what has occurred here. The same process was undertaken by the appellate courts in R v Williscroft and R v Young so far as the primary judge was concerned.
We commend to the Court the reasoning of Justice McHugh in AB v The Queen at paragraph 16 and that has been cited in the written submissions. We take the point made by Justice Hayne to my friend just prior to a luncheon adjournment that the notional starting point involves searching for something which cannot usefully be identified.
Mathematics and a mathematical approach can be seductive. One likes to have certainty in any process, but sentencing does not lend itself necessarily to certainty, and to adopt what the Chief Justice said, it is not transparent. Mathematical certainty can have a seductive appearance rather than perhaps a spurious appearance. It may have that as well, but it is the seductive nature of mathematical calculations in the process of sentencing which can seduce sentencing judges and appellate judges into thinking that what they are doing is certain.
So far as the Form 1 is concerned, I take the point raised by Justice Callinan in relation to section 34(1) of the Crimes (Sentencing Procedure) Act. The court may not impose a sentence for the matters on the Form 1, and I would just invite the Court to read again what was said by Justice Hulme at appeal book 97, paragraph 32, when considering the matters on the Form 1:
Given it was the Respondent’s third offence of supply it is by no means clear that it would or should have been prosecuted summarily but, making that assumption that it would have been, the objective features argued for the maximum of 2 years imprisonment. The subjective features and the fact it was on a Form 1 argue for some reduction from this but as a third offence of supply, it is difficult to see how, if that offence stood on its own, a sentence of less than 18 months in total could have been justified.
His Honour then at page 102, paragraph 45, said because of:
the matters on the Form 1, particularly the first and second of these, I would increase the sentence otherwise appropriate by between 18 months and 2 years.
We say that that is beyond coincidence. It is a statement of what the sentence would have been if it had have been prosecuted independently, and it is a statement of how much he increased the sentence, and it cannot be clearer than that.
I conclude by saying there is an element in this resentencing process which starts at the maximum, and it would be wrong for any sentencing court to say “Why should not the offender get the maximum, you convince me otherwise”, to a person appearing for the accused.
GLEESON CJ: I do not go along with that. Was not Garforth a case in which the accused actually pleaded guilty?
MR HAESLER: Yes.
GLEESON CJ: And we said that crime was so bad that it deserves the maximum.
MR HAESLER: Yes, and that particular point has been explored in Garforth. A case of Valera which was put before the Court, an unreported decision of the New South Wales Court of Criminal Appeal in 2002, as to whether that is in fact a staged approach in the classic sense of the objective – look at the objective circumstances of the offence, then otherwise ‑ ‑ ‑
GLEESON CJ: That is just approach of saying, no matter what the ‑ ‑ ‑
MR HAESLER: The serious – the subjective matters ‑ ‑ ‑
GLEESON CJ: ‑ ‑ ‑ what the subjective features displayed by the plea of guilty might be, what you did was so horrifying.
MR HAESLER: Yes, and that can be approached in two ways. If it is to say that we will only look at the objective features and never consider the subjectives then that would be a wrong approach. One might in cases such as this reach the same result by whichever process of reasoning you undertake, and this was examined by Mr Justice Meagher in Valera. But we say that it would be wrong in principle to say no, we do not get beyond the objective seriousness of the offence.
GLEESON CJ: No.
MR HAESLER: But looking at all of the factors, no matter what the ‑ ‑ ‑
GLEESON CJ: If Adolf Hitler had been brought to trial after World War II and pleaded guilty, he might still have hung.
MR HAESLER: He might still have hung, yes, but the process of reasoning undertaken is one that says, looking into account of every potential problem with Adolf Hitler, including his Iron Cross and his terrible upbringing, one would still give him life ‑ ‑ ‑
GLEESON CJ: Yes, his father probably abused him too.
MR HAESLER: He probably did – and take into account his service to the community, one would still convict him, but what we say is if the court engages in a process of reasoning – and this was argued before the court in Valera and, with great respect to Justice Meagher, in that case he misinterpreted and misread what was said by the New South Wales Court of Appeal in the case of Bell which I have put in the list of authorities. Bell was a case where the statutory scheme allowed for life and then you had to pull yourself out of it, so there was a staged statutory scheme.
So far as life imprisonment is concerned, if the court says, “I will look only at the objective circumstances of this offender’s crime and stop there; I won’t get to the second stage”, that would be an error. If by adopting a staged approach they failed to properly consider and weigh the subjective factors, then that would be an error. As Justice McHugh in AB v The Queen noted, by starting with the objective circumstances or objective gravity of the offender’s crime, that could tend to give that particular feature a degree of prominence which it was not otherwise entitled. In cases of such a grave objective gravity, one may not be able to get below that, but in most cases the starting with the objective gravity of the offender’s conduct may tend, and we say would tend, to increase the level of seriousness of the offence and the sentencing calculation.
GLEESON CJ: Does that cover what you wanted to say?
MR HAESLER: Yes, your Honour. There was a section 21A that may have been operative at the relevant time, but I think we say it was not, the Crown say it was, but ‑ ‑ ‑
GLEESON CJ: Well, send us in a note about that.
MR HAESLER: We will send a note. Your Honours gave leave to file an amended notice of appeal, those documents have been prepared.
GLEESON CJ: Thank you. You can hand that in to the associate.
MR HAESLER: I will, your Honour. Those are my submissions.
GLEESON CJ: Thank you, Mr Haesler. We will reserve our decision in this matter and we will adjourn until 10.15 on Tuesday, 7 September.
AT 3.54 PM THE MATTER WAS ADJOURNED
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