Markarian v The Queen

[2003] HCATrans 505

[2003] HCATrans 505

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S85 of 2003

B e t w e e n -

ANTHONY VASKEN MARKARIAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 11.51 AM

Copyright in the High Court of Australia

MR A.C. HAESLER:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC:   If it please the Court, I appear for the respondent with my learned friend, MR D.J. THIERING.  (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Haesler.

MR HAESLER:   Your Honours, the principal decision under review is that of Justice Hulme from the Court of Criminal Appeal and the sentence imposed on the applicant we say was subject to such error that it raises questions of considerable importance.

McHUGH J:   We think we might call on your opponent.  Yes, Mr Cogswell.

MR COGSWELL:   Your Honours, in this case the respondent relies upon its written submissions and insofar as ‑ ‑ ‑

KIRBY J:   Well, whatever view one takes about the intuitive, as distinct from the transparent, approach – and different views have been expressed – it is an important question, is it not?

MR COGSWELL:   It is.

McHUGH J:   And this is a very appropriate vehicle, it seems to me.  There is no doubt that this judge, in effect, started pretty close to the top and worked his way down.

MR COGSWELL:   It is, your Honours.

KIRBY J:   And it even puts me to the test of my view about transparency.

MR COGSWELL:   Yes, that is right, but it was a pretty ‑ ‑ ‑

KIRBY J:   And, in a sense, maybe it supports transparency because it then reveals that by the reasoning of the staged approach that he ends up with a result which is excessive.  I must admit I do not gasp when I see sentences, but I sat so long in the Court of Criminal Appeal in Crown appeals that you always moderated it and this seemed a very high upping of the ante.  That was my impression.

MR COGSWELL:   Yes, your Honours.  I can appreciate the force of what your Honours say.  The only submission I was going to make on that issue

was to take your Honours to Wong and to AB and try to distinguish the reasoning process which his Honour undertook here and indicate that it was a form of instinctive synthesis – that is arguable.  But, frankly, I appreciate the force of what your Honours are saying and clearly it is an issue where different views have been expressed on this Court and if your Honours regard it is an appropriate vehicle then – and, in fact, the Court of Criminal Appeal has indicated that it is a matter for the High Court to resolve rather than it.

McHUGH J:   Yes.

MR COGSWELL:   So if your Honours regard this as the suitable vehicle, I appreciate the force of ‑ ‑ ‑

McHUGH J:   Yes, it does seem to me at the moment.

MR COGSWELL:   Yes, may it please the Court.

McHUGH J:   Now, Mr Haesler, your notice of appeal, it seems to me the point can be – you do not need 2(a) or 2(b).  The point of principle is raised by 2(c).

MR HAESLER:   It is, your Honour, that 2(a) and (b) were more to cover the situation, we say, where there was no error, in fact, by the trial judge and what the orders of this Court might be.

McHUGH J:   So that there will be no later dispute about what was the effect of the grant of leave, subject to what you say, we will grant you leave to raise the matters in grounds 2(c)(i), (ii) and (iii).

MR HAESLER:   But not (iv)?

McHUGH J:   Not (iv) and, indeed, I think (c) you ought to take out the words ‑ ‑ ‑

KIRBY J:   If the words “was too severe and” were deleted, could you still mount under the errors of principle an argument based upon the residual class in House v The King?

MR HAESLER:   Well, that is why I am concerned to leave that there, your Honour.  That was essentially addressed by grounds 2(a) and (b).

KIRBY J:   Because House v The King you will remember says at the end sometimes we cannot actually put our finger on the error of principle but the result is so extraneous that it sufficiently indicates that an error of principle has occurred sub silentio.  Now, I would interpret the ground, if those words

were deleted, to permit you to raise that residual class in House v The King, but we are not a court of general criminal appeal and we have said it over and over again and we are not going to, sort of, just become a second‑rank Court of Criminal Appeal, but for my own part I would, whilst deleting that and restraining your enthusiasm, not seek to put you out of Court to argue that by reason of the very great increase in the amount that that itself suggests that an error of principle occurred.

McHUGH J:   Yes, perhaps that could be dealt with by you putting on a notice of appeal in which 2(a), (b) and (c)(iv) were taken out and the words “was too severe and” were taken out of paragraph (c) and you might add a further ground to deal with the residual error in that residual category of discretion referred to in cases like ‑ ‑ ‑

MR HAESLER:   House v The King.

McHUGH J:   Yes.  Subject to that being done, there will be a grant of special leave in this case.

MR COGSWELL:   Your Honours, I was just going to ask – sorry to interrupt my learned friend – (c)(iii) raises the question of Attorney‑General’s Application No 1 and I was wondering whether your Honours intended to ‑ ‑ ‑

McHUGH J:   No, we did not.  No, I certainly did not.

KIRBY J:   Unless, subject to what you wish to say, Mr Haesler.

MR HAESLER:   In terms of special leave, your Honour, it was how his Honour incorporated the matters on the Form 1 into his staged and sequential approach that is the key concern of this appeal.  He took a view adverse to either line of authority which was resolved in Attorney‑General’s No 1 and said if this matter had been dealt with in the Local Court he would have imposed a specific sentence and then he would specifically increase the sentence to take into account that factor.

McHUGH J:   It is manifest inadequacy of sentence, is it?  Although you say that is an error of principle, do you?

MR HAESLER:   It is an error of principle in terms of the stage to a sequential approach and it is one of the ‑ ‑ ‑

McHUGH J:   Yes.

KIRBY J:   Well, you can elevate it to an error of principle.  You should be allowed to ‑ ‑ ‑

McHUGH J:   Yes.

MR HAESLER:   It is not to canvass Attorney‑General’s No 1; it is how the Form 1 is incorporated into a staged approach to sentencing.  It is one of the statutory factors that a court must take into account.  It is how that factor is to be taken into account we would say elevates it to a point of principle.

McHUGH J:   Perhaps you might give consideration to redraft your paragraph (iii) to make the point of principle clearer by making the drafting more concrete than it is at present.

KIRBY J:   These things tend to drift.  When will your draft be filed?

MR HAESLER:   Within 24 hours, your Honour.

KIRBY J:   That is good.  That is not a drift at all.  That is lightning speed in ‑ ‑ ‑

MR HAESLER:   Perhaps you will give me to Thursday morning.

McHUGH J:   Yes.

MR HAESLER:   I will run it past my friend, your Honour, so that there is some agreement as to the proper form in which it is to be presented to the Court.

McHUGH J:   Yes.  We will give you leave upon the condition that an amended notice of appeal be filed by 4.00 pm on Thursday of this week.

MR HAESLER:   Thank you, your Honour.

KIRBY J:   Is this a half‑day case or is it a full‑day case?

MR HAESLER:   A half‑day.  There is a matter of contention between the Justices of the present Court which may need to be resolved, but I still say it is a half‑day case, your Honour, given written submissions.

KIRBY J:   I suppose it depends a bit on us.

MR HAESLER:   Certainly so far as I am concerned half a day.

KIRBY J:   Justice McHugh has said a few things that he inclines to the intuitive approach and I have said a few things inclining to the transparency approach and though you may succeed in this case, you have to keep in mind that transparency normally favours the process of appellate review.  Intuitive wraps it all up.

MR HAESLER:   Yes, I understand the problem, your Honour.  It is one that must be resolved and perhaps even reconciled.

McHUGH J:   Thank you, Mr Haesler.

AT 12.01 PM THE MATTER WAS CONCLUDED