Markovina v The Queen

[1998] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P49 of 1997

B e t w e e n -

IVAN WARREN MARKOVINA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 9.35 AM

Copyright in the High Court of Australia

MR S.A. SHIRREFS:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Kuscevich & Associates)

MR N.T. ROBINSON:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Shirrefs.

MR SHIRREFS:   Your Honour, the first matter that I need to raise with the Court is seeking an order - - -

GUMMOW J:   You need an extension of time.

MR SHIRREFS:   Yes.

GUMMOW J:   Is that opposed?

MR ROBINSON:   It is not, your Honour.

GUMMOW J:   You have the extension.

MR SHIRREFS:   Thank you, your Honour.  Your Honours, it is conceded at the outset that it is not the practice of this Court to grant special leave applications in relation to appeals against sentence because quite often sentences do not involve questions of general application.  However, in this particular case it is submitted that there is a principle of general application that is appropriate for consideration by this Court.  In particular, whether or not there is a principle of restraint that exists when resentencing an accused upon a retrial and, if so, to what extent, and underlying that principle of restraint, the policy considerations that underpin it:  considerations of double jeopardy; considerations akin to that of a harsher penalty being imposed as a disincentive, sends a disincentive to an appellant successfully appealing against a defective trial.

KIRBY J:   It is just another case, as far as I am concerned.  There are practical reasons why we would not want to have lots of sentencing appeals but it has just to be dealt with on its merits as another application.

MR SHIRREFS:   Yes.  It is put here that in so far as this particular is concerned there are important issues of general application.

GUMMOW J:   There seems to be a decision of the Western Australian Full Court which applies Gilmore.

MR SHIRREFS:   Williams?

GUMMOW J:   Yes.  So, it seems to have entered their body of law over there.

MR SHIRREFS:   It has and, indeed, I argued the appeal before the intermediate court ‑ ‑ ‑

KIRBY J:   You were successful.  Why do you want us to say that you were successful if they have already said you were successful?

MR SHIRREFS:   Pardon, your Honour?

KIRBY J:   What you are essentially saying, as I understand it, is that they did not apply their own jurisprudence of Gilmore.

MR SHIRREFS:   They have appeared to applied no restraint whatsoever or even considered an application of restraint in circumstances where a sentence has been imposed which, in their own previous decisions, is at the top of the range for sentences applicable to a quantity of this type.

KIRBY J:   Your client got five years and three months originally and then the Crown appeal, seven years, one month, and now 10 years and that on one count, one count having been knocked out.

MR SHIRREFS:   That is right.

KIRBY J:   It seems very unfair.

MR SHIRREFS:   Indeed.

KIRBY J:   But the question is whether or not there is an important principle that is of any - - -

MR SHIRREFS:   It is an important principle to this extent, your Honour, that when one considers the jurisprudence, the decisions of the various States in this country, there is a variation of approach.  There is no uniform approach.

KIRBY J:   Yes, but that does not help you, does it, if Western Australia has purported to adopt Gilmore but not apply it in this case?

MR SHIRREFS:   If one considers what is said by Chief Justice Burt in Williams - I will just refer to it.  It is the case to which your Honour the presiding Justice, Justice Gummow referred.  In Williams his Honour said that on a retrial, the sentencing judge:

when he comes to sentence, must exercise his own judgment and his own discretion.  He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him.  In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so-called -

now, he does not elevate it to a sentencing principle, refers to it as “the principle, so-called”:

“that unless there is some strong ground there should not be a disparity passed [sic] between the sentence imposed upon persons convicted on the second occasion after a re-trial compared with those that were imposed upon them on the first occasion”.

GUMMOW J:   Yes, we understand that.  Now, where do you say, at page 110, that was not taken into consideration?  The passage seems to be at 110.

MR SHIRREFS:   At 110, your Honour, it is submitted that in so far as the Court of Criminal Appeal was concerned, it, in effect, treated the sentencing judge as being unrestrained at all.

GUMMOW J:   What about line 15 thereabouts, the paragraph beginning “Notwithstanding”?

MR SHIRREFS:   It simply states that:

Notwithstanding the previous sentences imposed, which must be viewed in the light of the totality principle and restraint on Crown appeals against sentence, for the appellant to succeed he must establish that the learned sentencing Judge erred in acting on a wrong principle or wrongly assessed some salient feature of the evidence.

Well, if one refers to what his Honour the sentencing judge said, there are very little of any reasons as to why he imposed - in fact, there were no reasons as to why he imposed a heavier sentence and.....thought it appropriate by the Court of Criminal Appeal.

KIRBY J:   This was not a Crown appeal.

MR SHIRREFS:   No.

KIRBY J:   The second was not a Crown appeal.

MR SHIRREFS:   No. 

KIRBY J:   So, they seemed to have - it is true that the second step was a Crown appeal.

MR SHIRREFS:   It was.

KIRBY J:   It is very hard to see how that came on before the conviction appeal but it did.

MR SHIRREFS:   The reasons for that were that the appeal against conviction was filed.  I was not involved at that stage, not for some years, and the solicitor acting for the accused neglected to pursue the matter, waiting for counsel’s opinion which never arrived.

KIRBY J:   I see.  Is the point you make that the passage to which Justice Gummow has referred, as it were, is mistargeted?  It does not address the Gilmore principle.

MR SHIRREFS:   It does not at all.

KIRBY J:   And there is no reference either to Gilmore or any indication that they paid attention to Gilmore?

MR SHIRREFS:   The point I am making, your Honour, is that there is reference there to the principle of restraint with respect to Crown appeals but ignores completely the application of any similar principle and, if so, to what extent it applies in relation to sentencing upon a retrial.

HAYNE J:   What then is the purport of the words “Notwithstanding the previous sentences imposed”?

MR SHIRREFS:   “Notwithstanding the previous sentences imposed”?

HAYNE J:   Yes, at line 13.  What are their Honours referring to there, if not to whatever may be drawn from Gilmore?

MR SHIRREFS:   What they are referring to there is in relation to the sentence imposed by the Court of Criminal Appeal, that has to be “viewed in the light of the totality principle and the restraint”.  In other words, that explains why the sentence imposed upon - the resentencing by the Court of Criminal Appeal was six years.  That explains the six years, in which case - and when one considers what was said by the Court of Criminal Appeal here, the sentencing judge was not bound by that, “that is explicable because of the restraint and totality”.  He was then treated as being at large to impose what he considered to be the appropriate sentence. 

Bearing in mind what had been said by the Court of Criminal Appeal on the first application against sentence by the Crown where the court in the judgment of Justice Kennedy said that the quantity of this substance ought ordinarily result in a range of between seven to 10 years, for the quantity, without talking about the circumstances of the applicant, here, the sentencing judge has latched on to that and has chosen the figure at the top of the range.

HAYNE J:   What then is the principle which you say ought to have been, but was not, applied?

MR SHIRREFS:   There is a principle of restraint that was not applied.  Putting aside issues of - - -

HAYNE J:   The content of that principle is what troubles me.  What do you say is the principle?

MR SHIRREFS:   There is a principle of restraint, it is submitted, and that principle of restraint involves concepts of double jeopardy, it involves, as was stated by Chief Justice Sir Laurence Street in Gilmore, policy considerations of where a person on a subsequent sentence is given a harsher sentence.  It carries with it, on perception, a disincentive for a person to challenge on appeal a defective trial.  It carries with it the potential for vindictiveness and punishment as being seen to be the motivation behind the later sentence, for having exercised the person’s appellate rights.

KIRBY J:   One would hope it never would be but you say an inference may be drawn by people that, “You have won your appeal but now we will deal with you” and we will give you a higher sentence.

MR SHIRREFS:   Indeed, your Honour, and when one considers what was said by the US Supreme Court in the case of the State of North Carolina v Pearce that I have added to the authorities in your Honours’ bundle, there the court considered that there was no constitutional bar to a higher sentence but set down very strict guidelines as to what must be done by a sentencing judge if he is to increase beyond the lower sentence the sentence to be imposed.  They are strict guidelines.  In summary, they are to this effect ‑ ‑ ‑

KIRBY J:   Do they arise out of the due process provision - - -

MR SHIRREFS:   They arise out of the due process provisions and they are to the effect that:

Whenever a judge imposes a more severe sentence, the reasons for his doing so must affirmatively appear and those reasons must be based upon objective information concerning the identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

And the reason justifying that is due process:

requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial -

and in order to assume - - -

HAYNE J:   And is that a principle that caps the available sentence on retrial?

MR SHIRREFS:   It is not a principle that caps it.  I have not submitted here ‑ ‑ ‑

HAYNE J:   But caps it absent new facts demonstrated?

MR SHIRREFS:   Yes.

HAYNE J:   Do you contend for such a principle?

MR SHIRREFS:   I do not contend here that the sentence of six years would necessarily cap this particular sentence because of totality considerations which pertained at the first instance which were not before the sentencing judge.  However - - -

HAYNE J:   Which brings me back to what is the principle for which you contend?  Were leave granted, what is it that you would have this Court say to sentencing courts they should do?

MR SHIRREFS:   This Court should say to sentencing courts that there is a principle of restraint; that the policy - - -

GUMMOW J:   They know that.  They know about Gilmore.

KIRBY J:   Is Gilmore followed in all parts of Australia or not?

MR SHIRREFS:   No, it is not.  It is not followed in this State, although there is a decision in Chen in this State which adopts the observations of Gilmore but follows an earlier unreported decision of Emery which is somewhat different from which - - -

HAYNE J:   I must say I am astonished by that, Mr Shirrefs.  My memory may play me tricks but I thought that similar principles were applied on resentencing.  You may be right.

MR SHIRREFS:   Your Honour has the copy of Chen in your Honours’ bundle.  There is also the unreported decision of Emery that binds the court in this State.  If I could hand it up to your Honours.  The position in South Australia in the case of Garrett is to the effect that a sentencing judge upon a resentence is not bound at all.  He is de novo, he is not constrained by any principle.  It is a matter to which he is to have regard.

KIRBY J:   There is diversity of authority on the point.

MR SHIRREFS:   Absolutely, diversity of authority on the point.

KIRBY J:   And this, you say, is a case which hands the issue very squarely to the Court because not only was there the intervening Crown appeal but there was the intervention in the second case which effectively increased the sentence although the amphetamine count was knocked out.

MR SHIRREFS:   Yes.  It brings us squarely to the point because putting aside the question of totality, we end up with a sentence of 10 years which the Court of Criminal Appeal in Western Australia had identified in so far as the quantity as being at the top of the range.  He then receives 10 years.  That must indicate that there was absolutely no measure of restraint exercised at all by the sentencing judge upon the resentence.

KIRBY J:   What is the point in Emery that you have just handed us?

MR SHIRREFS:   The point in Emery is a passage on the second-last page of the judgment of Sir John Young, the last paragraph.  It commences:

There is, however, one other matter to mention.  It was said that on the earlier trial the applicant was sentenced to be imprisoned for a term of five years and it was directed that he should serve a minimum term of two and a half years before being eligible for release on parole.  The applicant who was, as I have said, not represented before us rather naturally places emphasis upon that fact as being a ground which no doubt would appeal to him as justifying the interference of this Court.  But it is necessary to say, I think, that such a ground does not justify the interference of this Court.  When sentence is passed a discretionary judgment is exercised and that judgment necessarily depends upon the view of all the circumstances of the offence and the offender taken by the Judge whose task it is to pass sentence.  It is notorious that one judge will take a different view of an offence and an offender from that taken by another judge.  The mere fact that on a previous occasion, when sentencing for this offence, another judge passed a sentence which was less than the sentence which the applicant is now obliged to serve is no reason for this Court interfering in the sentence so passed.  In every case it is a question whether this Court can detect in the sentence passed, or in the process of it being reached or arrived at, any error on the part of the trial judge.  In my view - - -

GUMMOW J:   Yes, we can read that.

MR SHIRREFS:   Yes, “no such error”.  Now, in Chen which your Honours have in the photocopied authority provided, commencing at the bottom of page 173 of the judgment, that passage that I have just made reference to is set out in the judgment of the court, the argument being that that was incuriam and it was not binding upon the court.  The court, at the top of page 174, at about point 3, stated:

We should at once say that we reject the submission that Emery was decided per incuriam.  Accordingly, the decision is binding upon us.

They, thereafter, set out passages from Gilmore and Williams and state that they respectively agree with the observations contained within those two decisions.

KIRBY J:   Does that not show that Gilmore does rule in this State then?

MR SHIRREFS:   In Chen it was unsuccessful.  Although reference is made ‑ ‑ ‑

GUMMOW J:   That is the point.

MR SHIRREFS:   Although reference is made to Gilmore there, the court held itself bound by the decision in Emery.  Emery was simply to the effect that a judge is to have regard to what has occurred at first instance.  The point of general application - - -

KIRBY J:   Is your proposition that there is uncertainty in this State and there is antipathy in South Australia.  There is lip service in Western Australia.  In this case it was not really applied and that led to a serious injustice?

MR SHIRREFS:   In this case it was not applied at all.  There is no set formula.  There is no direction as to the appropriate guidelines to be applied by a sentencing judge.  For instance, if there is to be any increase, there must be some objective facts.  There are many variables that can apply in a retrial:  the evidence may be different; an accused may testify on the first occasion, not on the second occasion, so those variables must be taken into consideration, but if there is to be an increase - - -

GUMMOW J:   I understand all of that but as a realistic matter, what would happen, what is likely to happen if you were successful in this appeal and it went back to the Western Australian court?

MR SHIRREFS:   My client should be released from gaol forthwith.  He has already served, in effect, a sentence - as of today, he has served a sentence equivalent to - if one considers the non-parole period of 50 per cent, which was applied by the sentencing judge at first instance, by the Court of Criminal Appeal on the sentence appeal, he has now served a period of imprisonment equal to nine years, nine months and 10 days.

KIRBY J:   But there is the complication of the intervening abolition of the remissions, is there not?

MR SHIRREFS:   That is ignoring that.  He has in fact now served four years, 10 months and 20 days of imprisonment which equates to a head sentence with a 50 per cent minimum term of nine years, nine months and 10 days.

KIRBY J:   How long would the argument of the appeal take?

MR SHIRREFS:   How long would the argument - - -

KIRBY J:   - - - would the argument, if you were granted special leave?

GUMMOW J:   Now, pause before you answer that.

HAYNE J:   Because a careful note may be taken of it.

KIRBY J:   And we want it in minutes.

MR SHIRREFS:   How long would the appeal take to get on?

KIRBY J:   No, to be heard.

KIRBY J:   The “getting on” is within our gift.  The length of the argument is in yours.

MR SHIRREFS:   To be heard, I would not think very, very long.  This Court has the ability, as your Honour well knows, to grant bail.

KIRBY J:   It would be a two-hour argument, I assume, would it, or thereabouts?

MR SHIRREFS:   If that.  This Court, as I said, has power to grant bail in the interim to this applicant.

GUMMOW J:   That is another matter.  That is not in response to the question.  The question is how would the appeal take to argue?

MR SHIRREFS:   Not long.  How long did it or will it?

HAYNE J:   No.

MR SHIRREFS:   Sorry, your Honour, I did not - - -

GUMMOW J:   How long would the appeal take to argue:  half a day, a day, two hours, one hour?

MR SHIRREFS:   One hour.

GUMMOW J:   That seems a bit optimistic. 

KIRBY J:   I assume that it has come before us here in Melbourne because of the pending list in Western Australia in October?

MR SHIRREFS:   No, it has come before this Court because the applicant has no money; he is not on legal aid; I live in this State and I am doing a pro bono and I have been involved all the way through it.  That is the reason why it has come on here.

GUMMOW J:   Yes.  Yes, Mr Robinson.

MR ROBINSON:   If the Court pleases.  It is submitted that no special leave point arises in respect to the matter.  The learned sentencing judge had regard to what was an appropriate sentence as reflected in the first appeal, after allowing for the fact that there was totality in respect to the Crown appeal and the restraint in respect thereto.

KIRBY J:   How could it possibly increase the effective custodial sentence after this long struggle and do so, although one of the counts had been knocked out by the verdict of acquittal?  I mean, it does look - there would be people in the community who would say, “Well, he won his case but, in the end, he lost because he had more time in custody.”

MR ROBINSON:   Indeed, he did, your Honour, but the imposition of the sentence was, though high, within the range as was recognised by the Court of Appeal, both on the first instance in relation to the Crown’s appeal and ‑ ‑ ‑

KIRBY J:   The top of the range, according to Justice Kennedy.

MR ROBINSON:   Yes, indeed, your Honour.

KIRBY J:   And that was said in the context of conviction on two counts, amphetamines and heroin.

MR ROBINSON:   With respect, no, your Honour.  The top of the range was in respect to seven to 10 years in respect to possession of the amount of heroin involved in this case and what is submitted, and as was clearly recognised by the Court of Appeal on first instance, because of the principle of totality and restraint in respect of Crown appeals rather than the imposition of the sentence of seven to 10 which would ordinarily have been expected, a sentence of six in respect of the heroin was imposed.

His Honour the sentencing judge had regard to that in fixing at the top of the range.  Whilst it is true that his Honour gave little weight to subjective matters of mitigation, it was recognised by the Court of Appeal on appeal that those matters - that no demonstrable error had arisen in respect of that.

KIRBY J:   But the first judge and the Court of Criminal Appeal in the first case would have had the totality principle in mind and therefore they would have been looking at the sentence that was apt for the total criminal wrongdoing which was amphetamines and heroin.

MR ROBINSON:   Indeed, your Honour, yes.

KIRBY J:   And yet the sentence was much lower than is now the result at the end of the process.  He has won an appeal against conviction and he has won a trial in the amphetamines and he ends up with a higher sentence; significantly higher.  It gives rise to the justifiable sense of grievance which Lowe was all about.

MR ROBINSON:   It is submitted that the imposition of sentence on a second trial where the principle of totality does not apply, which his Honour Chief Justice Street observed in Bedford, is one of the matters that may give rise to the sentence on the second occasion exceeding that imposed in respect of the first sentence.

KIRBY J:   Yes, but the judge at the second trial was fully aware of the history of the matter.

MR ROBINSON:   Yes, your Honour.

KIRBY J:   I think he had presided at the trial at which the accused was acquitted of the amphetamine count, had he not?

MR ROBINSON:   Yes, your Honour, he did.

KIRBY J:   So that he knew the background; he knew the history, and despite that he gives the top of the range at the end of this almost heroic struggle and the man ends up with a longer custodial sentence, significantly longer.  It just does not seem fair.

MR ROBINSON:   Your Honour, the exercise of the sentence, of course, is a discretion for each judge and the principle recognised in Gilmore and, in my submission, is also taken up in Williams and followed in Chen and observed in those authorities is that it is an exercise of discretion in each case, bearing in mind a number of matters, one of which may well be the sentence imposed previously. 

KIRBY J:   It is not an unbridled discretion.  It is a discretion subject to review in courts of criminal appeal applying appropriate principles.

MR ROBINSON:   Yes, your Honour, and in - - -

KIRBY J:   Ultimately reviewed by this Court.

MR ROBINSON:   It is submitted that the Court of Appeal had regard to the operation of the principles in relation to restraints and in the passage - - -

GUMMOW J:   Where do we see that?

MR ROBINSON:   It is submitted, your Honour, that the passage at 110 that your Honour referred my learned friend to, that “Notwithstanding the previous sentences imposed”, in my submission, is a recognition by the court that the “sentences previously imposed, notwithstanding”, meaning thereby, it is submitted, that they had regard to the fact that the principle observed in Gilmore and in Williams was a relevant factor.  And their Honours, whilst recognising the sentence imposed was at the top of the range, were satisfied in respect of the application of those principles that no manifest error had been demonstrated.

KIRBY J:   But there is no express reference by their Honours to Gilmore, Chen or any other case.

MR ROBINSON:   No, that is so, your Honour.

KIRBY J:   There is no express reference to the principle of restraint.  There is no express reference to the notion that a person should not be worse off for having successfully challenged a conviction.  It is very, very lightly done, with respect to their Honours.  There is a lot of talk about House v The King and discretionary considerations but the issue that is relevant to the actual time this applicant spends in custody is not expressly adverted to and it seems to me not really adverted to at all.

MR ROBINSON:   It is submitted it certainly is not expressed overtly.  It is submitted, your Honour, that the reference to the fact that the sentence was passed in these circumstances and reference to the prior sentence being imposed adverted to at page 110 - - -

KIRBY J:   But does not the fact that there is diversity of opinion in Australia itself, as it were, give the applicant a bit of a leg up?  And then there is that decision of the United States Supreme Court which expresses principles that seem attractive to me, although we do not have the same constitutional setting, and then we have the injustice or apparent injustice, arguable injustice, of the particular case.  It seems as though that is enough to get this into the so-called exceptional class of a sentencing appeal.

MR ROBINSON:   It is submitted, your Honour, that any difference in approach in the States is not significant; that whilst it is true that in Gilmore, Garrett was not followed, it is clear from the expressions of opinion subsequently in Williams and in Bedford and in Chen that the principle in respect to a resentence is, in a sense, uniform in the intermediate appellate courts.  Regard is to be had to the prior sentence but that the sentencing judge on the second occasion is not bound by the sentence previously imposed.  It is submitted that there is no significant distinction in approach.  As to the United States decision, your Honour, that decision, of course, is founded upon constitutional principles - - -

KIRBY J:   But they are constitutional issues of due process which are as much reflected in our common law as they are - in this respect, at least - as they are in the Constitution of the United States.

MR ROBINSON:   Yes, your Honour.  It is submitted, though, that the application of such an approach is reflected in Gilmore.  It is submitted that the court below, whilst not expressly referring to it, had regard to it in the imposition of the sentence - - -

KIRBY J:   On the appeal, would you be saying very much more than you have said to us now?

MR ROBINSON:   Unlikely to say much more, your Honours.

KIRBY J:   I did not think so.

MR ROBINSON:   If your Honour please.  If it please the Court.

MR SHIRREFS:   Briefly in reply, your Honour.  This is a federal matter.  The principle of restraint to which I have referred is one with respect to which this Court has made no pronouncement.  The only comment I can make is one of your Honour Justice Kirby in Parker to which I have included that decision in the authorities that have been provided to you where your Honour, at page 531, considered the issue of the retrial of David Parker and said:

Accordingly, any retrial of the appellant would have to take place on the footing that, were he properly convicted at a second trial, his new sentence almost certainly would not expose him to a return to prison.

And there cited Gilmore.

Although, strictly, it would be for the judge at the second trial, in the light of the evidence, to determine the sentence proper to a conviction at that trial, the fact of the previous custodial sentence, its completion, the dismissal of the Crown appeal against that sentence and the principles controlling double jeopardy would render it unlikely in the extreme that the appellant would be returned to prison.

Now, the extent to which principles of double jeopardy, policy considerations which underlie - - -

HAYNE J:   They are slogans, Mr Shirrefs.  They are slogans.  What is the content?

MR SHIRREFS:   The content, your Honour, is to do with apprehension of punishment, disincentive to a person exercising their rights of appeal to overturn a defective appeal.  The person may believe or be advised that their trial was defective but, having got a light sentence, may choose not to pursue it for fear of getting a harsher sentence next time round.

HAYNE J:   What is this Court to tell sentencing judges to do?  “Be restrained” does not tell them much.  A rule that says “cap it at what was earlier imposed, absent new facts” is a principle of content.

MR SHIRREFS:   Yes.

HAYNE J:   Short of that, what principle would you contend we should advance?

MR SHIRREFS:   That there should be a uniform approach so that if there is to be any increase it must be based upon some objective facts, being differences at the second trial or something in addition to that.

HAYNE J:   So the discretion of the second sentencer relevantly is fettered?

MR SHIRREFS:   Not absolutely, but fettered.

KIRBY J:   And that, as I understand it, is the United States Supreme Court position, albeit based on the Constitution?

MR SHIRREFS:   And it is arguably - - -

KIRBY J:   Is that correct?

MR SHIRREFS:   Yes.

GUMMOW J:   I just want to get this clear.  That would be your submission?

MR SHIRREFS:   That is my submission but there have to be guidelines provided to sentencing judges.

GUMMOW J:   Well, “guidelines”, that is exactly what elicited the question.

MR SHIRREFS:   But if one considers what Sir Laurence Street said in Gilmore, his Honour said it is a sound sentencing principle ordinarily the sentence imposed at first instance should not be - - -

GUMMOW J:   The devil is in the word “ordinarily”.  No explanation is given of what is “ordinary” and what is “extraordinary”.

MR SHIRREFS:   No.

KIRBY J:   But as I understand it, your complaint here is no explanation is given as to why an extraordinary step was taken.

MR SHIRREFS:   And that is why this Court should intervene and that is why this Court, in my submission, should grant special leave to appeal so that that matter is dealt with and there is an appropriate guidance set on an important matter of sentencing principle.

GUMMOW J:   Now, this was a federal offence.

MR SHIRREFS:   Yes.

GUMMOW J:   So, the Supreme Court was exercising federal jurisdiction.

MR SHIRREFS:   It was.

GUMMOW J:   Now, is it your submission that there is some lack of uniformity in the State courts across the Commonwealth as to the Gilmore principle?

MR SHIRREFS:   Absolutely.  In South Australia in Garrett they say there is no constraint whatsoever, that the sentence at first instance, the sentencing judge is to have to have regard to but that is all.

GUMMOW J:   And is there nothing in any federal law in the sentencing provisions - - -

MR SHIRREFS:   Not that I have found.

GUMMOW J:   - - - touching this sort of question?

MR SHIRREFS:   No, nothing at all.

GUMMOW J:   So, this is picked up by the Judiciary Act really.

MR SHIRREFS:   Absolutely.

GUMMOW J:   But you say unequally applied.

MR SHIRREFS:   Indeed.

GUMMOW J:   All right.  If we were minded to take this matter further, Mr Shirrefs, I take it this would be true of Mr Robinson too, would it - that Canberra would be preferable to Perth?

MR SHIRREFS:   Yes, certainly from my client’s perspective.

MR ROBINSON:   Yes, your Honour, from the Crown’s point of view.

GUMMOW J:   We will take a short adjournment.

AT 10.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM

GUMMOW J:   There will be a grant of special leave in this matter.  In accordance with the discussion we have just had with counsel, the matter will be listed in Canberra.

MR SHIRREFS:   If your Honours please.

In consequence of that, your Honours, I raise a notion of an application for bail which would probably only be heard before a single judge.

GUMMOW J:   It would.

MR SHIRREFS:   It is a question as to when that might be done.  I will make inquiries with the Registry.

GUMMOW J:   I think so.

AT 10.11 AM THE MATTER WAS CONCLUDED