MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the appellant in this matter. (instructed by Leanne Warren & Associates)

MR W.H. MORGAN‑PAYLER, QC: And if it please the Court, I appear with my learned friend, MR C.J. RYAN, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Tehan.

MR TEHAN: Your Honours, we adopt the outline of submissions filed with the Court. There are some amendments to that outline, the first of which is on page 1 and, of course, we are at 21 March, not 21 May. The second amendment is on page 2 where in paragraph 3 the sentences are set out and we should have said after “counts 8 and 9 be served concurrently” there should be added these words “that the sentences on counts 10 and 11 be served concurrently”. Then on page 14 in paragraph 28 at about line 7 we state “Lovelock and Craig were decided post the 1967 amendments when the legislation could more clearly be taken not to refer to general sentences.” That is clearly wrong and I would ask the Court to simply delete that from our outline.

KIRBY J: Where is that?

MR TEHAN: It is an error.

KIRBY J: No, where is that?

MR TEHAN: It is at page 14, paragraph 28, line 7 commencing with the words “Lovelock and Craig” and ending with the words “general sentences”.

MR TEHAN: We have also sought by way of notice of motion to amend our grounds of appeal by adding an additional ground of appeal and I seek leave of the Court to rely upon that additional ground. The notice of motion appears at page 151 of the appeal book and the additional ground that we seek to rely upon is the Court of Appeal of the Supreme Court of Victoria erred in law in failing to accord procedural fairness to the appellant.

GLEESON CJ: Is that opposed, Mr Morgan‑Payler?

MR MORGAN-PAYLER: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR TEHAN: If the Court pleases. To turn now to our argument, this case concerns the operation of a provision of the Victorian Crimes Act. Such provision appears in other legislations in all States and Territories in the Commonwealth and in so far as relevant, it provides as follows:

If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment…..has been properly convicted on some other count or part of the indictment, or charge the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment or charge on which the Court considers that the appellant has been properly convicted.

The pre‑conditions to the exercise of that power were made out in this case. The appellant appealed against all of his convictions and he succeeded in that appeal in relation to some of the convictions. What was not made out ‑ ‑ ‑

GUMMOW J: What was the sentencing regime that governed this? It was the Sentencing Act as at what date?

MR TEHAN: The Sentencing Act 1991, your Honour.

GUMMOW J: Yes, quite, but it has been changed from time to time.

MR TEHAN: Yes, it has, your Honour.

GUMMOW J: At what particular time?

MR TEHAN: It was substantially amended in 1997 but the ‑ ‑ ‑

HAYNE J: And did those amendments apply? Did those 1997 amendments apply to the sentencing of this appellant?

MR TEHAN: Yes, I believe they would have, your Honour.

GUMMOW J: We have got to know, have we not?

HAYNE J: I am not sure that is right, Mr Tehan. The 1997 amendments introduced section 118(2) into the principal Act and applied the 1997 provision, so far as presently relevant, to proceedings for an offence commenced after commencement of section 6 of the 1997 amending Act. Now, this man was indicted on a presentment dated in 1997, 12 July 1997.

MR TEHAN: That was just before the Act.

HAYNE J: I thought, I may be wrong, that the relevant sentencing provisions were those that are to be found in the second reprint of the Sentencing Act, that is the reprint as at 11 April 1996 but, that is on a very quick look and it seems to me to be a necessary and important premise for the argument that we are about to have to know how the sentencing judge was required to deal with this man on a multi-count indictment in circumstances where for the subsequent accounts he was to be dealt with as a serious sexual offender.

MR TEHAN: Clearly that was the case, your Honour, that after conviction on the first two counts, he was to be dealt with as a serious sexual offender, but the legislation which applied, in that respect, was section 16 of the Sentencing Act which provides that in the absence of an order to the contrary, sentences be served concurrently. In relation to serious sexual offenders, there is a provision whereby sentences be served cumulatively in respect of those persons, unless the court otherwise orders.

The appellant in this case was, I think, sentenced in August 1997 and the amendments to which your Honour Mr Justice Hayne referred, I believe, came into operation on 1 September 1997.

HAYNE J: He is, therefore, dealt with under the 93, is it, regime dealing with serious sexual offenders?

MR TEHAN: Yes, yes, your Honour.

GUMMOW J: Which reprint do we need?

MR TEHAN: I am sorry, your Honour, I cannot help you with which reprint number that is.

McHUGH J: On the special leave application in your reply, you said that in further proceedings the appellant would be sentenced under section 6E of the of the Victorian Sentencing Act. Is that correct or not?

MR TEHAN: I believe that is correct, your Honour.

McHUGH J: That was added after.

MR TEHAN: The part of the Sentencing Act that concerns serious sexual offenders and orders as to cumulation of sentences has not substantially altered and there would be prima facie orders for cumulation, unless the curt otherwise orders, and that sentiment is not substantially changed.

McHUGH J: Is the cumulative provision 16(3A)? Is that the one?

MR TEHAN: The cumulative provision - it certainly was section 16(3A).

HAYNE J: And that provision would have been in force or applicable, at least, to this appellant at the time of his sentencing, would it not?

MR TEHAN: Yes, yes. I am not sure exactly where it is now, but it was section 16(3A).

HAYNE J: Well, 16(3A), I think, went and was substituted by 6E ‑ ‑ ‑

MR TEHAN: Yes. Yes, that is right.

HAYNE J: ‑ ‑ ‑ by the 1997 amendments which dealt not just with serious sexual offenders, but the wider class of serious offenders, but was, I think, or is, I think, in terms not significantly from 16(3A).

MR TEHAN: No.

McHUGH J: Well, on further prosecution for the outstanding charges would the present appellant be dealt with under 16(3A) or under 6E of the Sentencing Act and does it make any difference which one?

MR TEHAN: We would think it would be 16(3A) but it does not make any difference. The effect of 16(3A) is exactly the same as 6E. Now, this provision of the Crimes Act has been considered by this Court in only one case and that case, of course, is that of Ryan and I wanted to take the Court immediately to that authority. Ryan was a case where he was charged with offences of trafficking in heroin and handling stolen goods. He was convicted and appealed against his conviction in relation to trafficking in heroin but did not do so in relation to the handling counts and the Victorian Court of Criminal Appeal acting under this provision, section 569(1), increased his sentences on the handling counts and the question before the High Court was whether or not the Court of Criminal Appeal had the power to do what it did.

Ryan succeeded in his appeal substantially because he had not appealed against his conviction in relation to the handling counts and, therefore, the Court held that the propriety of his convictions in relation to those counts, not having been before the Court of Criminal Appeal, they had no power to act as they did under section 569(1). What is significant about Ryan’s Case for our purposes is the view that we put that a majority of judges in that case came to the view that before section 569 could be enlivened there had to be a sufficient connection between the sentence squashed and the sentence remaining.

It is that connection which we contend was not present in the instant case and, therefore, from that we submit that the Court of Appeal in our case was wrong in purporting to act under this provision by increasing our sentences. Indeed, we go further and we say that the Court of Appeal in our case on its own motion decided for itself that a different sentence should be passed. It decided that the sentences, both on the individual counts and the total sentence, were manifestly inadequate without any party before the court who was able to make or meet such a claim.

GLEESON CJ: When you use the expression “sufficient connection”, sufficient for what purpose?

MR TEHAN: Sufficient to enliven the power contained within section 569(1).

McHUGH J: Why is it not sufficient if the totality principle had been applied at first instance? It seems an extraordinary situation that if a judge applies the totality principle and compresses sentences, then on appeal convictions are quashed, and yet the court has no power to bring the remaining sentences up to an appropriate level.

MR TEHAN: That depends upon what view one takes of the totality principle. If, for example, adequate sentences were passed on all counts and then an overall sentence reached which was fair and just, then there would be no need for re‑jigging the totality principle so called once certain sentences went.

McHUGH J: But take this case. There is a sentence, is there not, for 18 months for rape? It seems pretty low, standing alone.

MR TEHAN: But, with respect, your Honour, our submission is that the Court of Appeal cannot itself decide that. The Court of Appeal is not engaged in a re‑sentencing exercise under section 569(1). This provision, in our submission, is a corrective provision.

HAYNE J: You say the Court of Appeal is not engaged in a re‑sentencing exercise. Can I just examine that with you a moment. The sentencing discretion was engaged at trial and engaged by producing a series of individual sentences and some orders for cumulation and concurrency and was engaged in a way that was affected by, amongst other considerations, considerations of totality. The manner of exercise of that discretion would necessarily be different, would it not, when there are fewer counts that have to be taken into account.

MR TEHAN: Yes.

HAYNE J: The moment you take away any of the components, is it not necessary to reconsider the exercise of the discretion that was engaged in at trial or on sentence?

MR TEHAN: Your Honour, with respect they would not be markedly different.

HAYNE J: Only slightly pregnant.

MR TEHAN: But one could never get to the position that Mr Justice Batt got to here where you get to 12 years. In other words, you get to an overall head term that we came with, anyway, because some of the offending has fallen away so the totality principle has to be re‑jigged, if you like, in view of the fact that some of the offending has gone.

KIRBY J: But, as I understand it, there was an order for retrial, was there not?

MR TEHAN: Yes.

KIRBY J: So that if one is looking at the totality principle as contingently operating, then it still hovers over this case in the event that your client is put up for retrial and is sentenced correctly on the conviction on the retrial and then the net result of the outcome of his success first in the appeal is that he ends up with a significantly increased total sentence.

GLEESON CJ: Is there a principle that applies in Victoria, as it certainly does apply in some other jurisdictions, to the effect that a person should not be worse off as a result of a successful appeal?

MR TEHAN: Yes, your Honour.

GLEESON CJ: Would not that operate to modify the consideration that Justice Kirby has just put to you?

MR TEHAN: It would, your Honour, and that is why we say in this case – I mean that is one way of saying that what the Court of Appeal did was wrong because if we go back to our retrial and we are again convicted, then sentences will have to be passed on individual counts and there will have to be some cumulation of those sentences. If they were all made wholly concurrent – 12 with the 10 – the Director of Public Prosecutions would, no doubt, appeal and succeed.

GLEESON CJ: Why, if the principle that I have just mentioned applies?

MR TEHAN: The principle of restraint?

GLEESON CJ: The principle that a person should not be worse off as a consequence of a successful appeal.

MR TEHAN: Yes. We agree with that, your Honour.

KIRBY J: But if, in fact, he were convicted on a second trial and some increase in sentence, or some sentence were imposed, then he would be worse off.

MR TEHAN: Indeed.

KIRBY J: And it is difficult to see how a trial judge, after a conviction, could not - would not impose some sentence. The bottom line is that this man had a non‑parole period of ten years and although some of the criminality fell away, he ends up with a non‑parole period of ten years. Is that correct?

MR TEHAN: Yes, that is exactly right, your Honour.

KIRBY J: And he is liable to conviction on the outstanding counts and sentence for those?

MR TEHAN: Yes. Our submission is that that position is inconsistent with the proper application of the totality principle.

GLEESON CJ: But if the judge who resentences him, following a second trial, imposes sentences in respect of convictions on that trial, is there anything to stop the judge making those sentences concurrent with the sentences that he would otherwise be serving?

MR TEHAN: Section 16(3A).

McHUGH J: But, he has a discretion.

MR TEHAN: He has a discretion, that is true.

McHUGH J: And, having regard to the principle that he should not be worse off as the result of a successful appeal, why should not the discretion be required to be exercised?

MR TEHAN: It would be highly unusual, with respect, your Honour, for the judge to make those sentences wholly concurrent with the 12 of the 10, that the Court of Appeal gave him.

McHUGH J: In the circumstances of this case it might be regarded as unusual.

MR TEHAN: It makes an ass of the law, with respect, that a man goes to a Court of Appeal with a sentence of 12 of the 10. Some of the offending criminality falls away. He comes back with 12 of the 10 and then on his retrial where he is convicted again of the same offences a judge has got to pass wholly concurrent sentences, not giving any more at all, because he should not be worse off as a result of the appeal. The problem with the process is ‑ ‑ ‑

McHUGH J: Does it not have to be weighed against this, that the public, as well as the Crown, have got a real interest in sentencing. Supposing the Crown does not put your client up again. On your theory, he would be entitled to have lesser sentences than his criminality upon which he stands convicted requires.

MR TEHAN: That is the critical question in relation to the meaning to be given to section 569(1) because when examining it in the light of the totality principle one would have to ask oneself, what is the degree of punishment which has gone as a result of sentences being quashed which related to the sentences which remain.

McHUGH J: I am not clear in my mind at the moment about your submission. You seem to be sliding between arguments about power and arguments about discretion. Now, are you making two arguments or one, and if so, which one?

MR TEHAN: We concede the power is there for the Court of Appeal to act but we say that ‑ ‑ ‑

McHUGH J: By hypothesis, that must mean that there was a sufficient connection on your argument, does it?

MR TEHAN: We say there was no sufficient connection in this case to enliven that power.

KIRBY J: It is a bit hard to argue that, is it not? Given the interconnection of the sexual conduct, it is fairly hard to argue that there is no sufficient connection. It is all part of a pattern and relationships, is it not?

MR TEHAN: With respect, your Honour, the connection that we contend for is a connection between the sentences, between those which are quashed and those which remain.

GLEESON CJ: Do you mean a formal connection?

MR TEHAN: A formal connection, yes. If, for example ‑ ‑ ‑

GLEESON CJ: What do you say is the principle of totality?

MR TEHAN: The principle of totality is that a judge, having passed adequate sentences on all counts of a multi-count presentment, stands back and asks whether the total sentence which is ending at – the total sentence is a fair and just one.

GLEESON CJ: What does that mean? Let me suppose you have a serial killer, a man who murders a dozen people. How does the principle of totality apply to sentencing that offender? We know that in some jurisdictions, depending on the legislation, that person might be sentenced to 12 sentences of life imprisonment.

MR TEHAN: Yes.

GLEESON CJ: Suppose then you have a serial sex offender who is convicted of 30 offences and asks the judge to take into account 50 more. How do you say the principle of totality applies in a case such as that?

MR TEHAN: The principle of totality applies by virtue of the operation of orders as to concurrency in cumulation and it is through the operation of those orders that a proper sentence is - a proper head term and then a proper non‑parole period is reached.

GLEESON CJ: What do you mean by the word “proper”? What are you aiming at?

MR TEHAN: A fair and just sentence.

GLEESON CJ: Well, how do you determine what is a fair and just sentence for someone who has committed 30 serious crimes and has asked for 50 more serious crimes to be taken into account?

MR TEHAN: To impose adequate sentences on each count and then through orders as to cumulation and concurrency to arrive at a head term which is not crushing but which will be seen by the community as being a fair and just sentence.

GLEESON CJ: That expression “seen by the community” might be a dangerous one.

MR TEHAN: I mean, there are two ways to achieve the operation of the totality principle. One way would be to pass light sentences on all counts of a multi‑count presentment and then to make then substantially wholly cumulative. That approach is, in our submission, not an approach which endears itself to courts these days. The proper ‑ ‑ ‑

HAYNE J: Though it might be said to be the approach adopted by the original sentencer in this case, may it not?

MR TEHAN: Well, not so, your Honour, because there were ‑ ‑ ‑

HAYNE J: Sentences of 18 months for incense?

MR TEHAN: There were significant sentences – there were significant orders as to cumulation, which, of course, brings into play the second way in which totality operates and that is by passing adequate and proper sentences on all counts and then using the power to order concurrency and cumulation to such an extent that, again, a fair and just sentence is achieved. We would say that that is the approach which is now undertaken by sentencing courts and certainly in Victoria it is the approach which the Court of Appeal in our State has said is the correct approach.

Now, to return to what your Honour Justice McHugh put to me about the operation of the totality principle in the context of section 569. Before the power could be enlivened, a Court of Appeal would have to be satisfied that there is some element of punishment for the offences which remain which has gone and if, for example, you had a trial judge saying, “Look, I am going to pass inadequate sentences on all counts. That is what I am going to do because it is the only way I can think of of getting to an overall head term of 12 years with a minimum of 10, which is what I want to achieve,” then you might have some operation of this provision.

If, for example, you have a three‑count presentment where a person is sentenced to life imprisonment on the first count of murder and no sentence is passed on the remaining two counts of attempted murder, then, again, you might have some operation of the provision when the count of murder is quashed because obviously the life imprisonment sentence on that count did bear and was designed to be a relationship to the attempted murder counts in respect of which no sentence was passed because it can be said in a case such as that – and there are many cases like this – that no sentence has been passed because a very heavy sentence has been passed on the substantive count and that is really what Lord Goddard had in mind in Lovelock’s Case. The problem in our case was that the Court of Appeal itself decided that different sentences should be passed without finding the sufficient connection that we contend for.

McHUGH J: But there is another problem, is there not, about the totality principle in this class of case, that historically the totality principle was brought in, if I recollect correctly, to deal with what was regarded as the one episode of criminality, three or four bank robberies in the space of six or seven days. Here you have individual offences week in, month out. To talk about it as one episode of criminality seems a little unreal. You have all of these individual offences. If you are going to look at the total of what has happened over a period of time, what does it matter much whether you give so many months on this one, so many on the other? You have really sentenced the person over the whole criminality, and the fact that he is convicted of 50 or 30 or 20 is rather beside the point.

MR TEHAN: With respect, your Honour, if we had aggregate sentencing that might well be the case, but we do not.

GLEESON CJ: But the principle of totality seems to lose rational content when you are dealing with certain types of sentencing, serial offenders whose offences, as Justice McHugh points out, might continue over the best part of a lifetime. Does the principle of totality produce the consequence that you can get some offenders of whom you can say it does not matter any more what else you convict them of or what else is taken into account; there is just no way the law can punish them for any additional offences?

MR TEHAN: No, that is right because I suppose you would reach a stage where other principles would come into play such as not imposing a sentence which is crushing. If, for example, you had a serial rapist on 20 counts of rape, obviously you would have to impose a strong sentence upon him, but you might get to the stage where you simply have to adjust your orders as to cumulation in such a way as to not impose a crushing sentence.

GLEESON CJ: If that is right, then is not the principle of totality the most obvious kind of connection that would exist for the purposes of section 569?

MR TEHAN: It may, but it depends upon the case at hand. We would concede this much, that if you had a judge saying, “I am passing inadequate sentences in respect of this complainant because the overall head term will be one which is fair and just for both complainants”, then the principle might apply. But that is not what happened here.

GAUDRON J: What did the trial judge say at page 61 of the appeal book? The sentencing judge said:

In my view –

12 years –

is an appropriate sentence taking into account the total criminality of your behaviour.

Then there is reference to the proportionality:

and being aware of the need not to impose a crushing sentence upon you –

So it really does look as though they are all bound up together.

MR TEHAN: With respect, your Honour, there is nothing in what the trial judge said to indicate that she was imposing inadequate sentences on particular counts.

GAUDRON J: Well, you could look at the sentences for that.

GLEESON CJ: Mr Tehan, this judge did not actually say so, but I have often seen sentencing reasons in which the judge in a case like this says, “It really doesn’t matter what individual sentences I impose on you for the individual offences. I’m aiming to achieve an appropriate total result”. Suppose this judge had actually said that. How would section 569 operate?

MR TEHAN: Well, in our submission, it would only operate in circumstances where it was patently clear that there was a connection between the sentences which disappear and the sentences which remain and that connection ‑ ‑ ‑

KIRBY J: Presumably when her Honour used the words “total criminality”, she was referring to the criminality, including the criminality which, as you put it, fell away.

MR TEHAN: Yes, the criminality which disappears.

KIRBY J: I mean it is not forgotten, there were separate sentences for it.

MR TEHAN: Yes.

KIRBY J: So that when her Honour referred to “total criminality” I would read that as including that criminality.

MR TEHAN: Yes, and once that disappears, then it may be - in an appropriate case one has to ask oneself, “Well, how much of that that disappeared relates to what remains?”, and you can only be satisfied of that in the context of clear remarks by a sentencing judge that there is such a connection.

HAYNE J: Well, I at the moment do not understand that, Mr Tehan. Do you make any point of the fact that the four convictions that were quashed were four of the five convictions involving the second girl?

MR TEHAN: No.

HAYNE J: So the fact that there was a second complainant is not an element of your argument?

MR TEHAN: No. I see what your Honour is putting now. I mean ‑ ‑ ‑

HAYNE J: I am glad you do. I do not.

MR TEHAN: Well, the fact that offending in relation to one complainant has disappeared, in our submission, is significant.

HAYNE J: Well, not all of the offending, as you put it, disappeared.

MR TEHAN: Not all of it, no.

HAYNE J: Counts 10 and 11 concerned a joint episode of offending in which both girls were involved, but what might be called the separated offending against the second girl, B, if we may call her so, those convictions were set aside and retrial ordered, but does that fact say anything about power in the Court of Appeal to re-sentence, or does it say something about how the Court of Appeal could or should have exercised a power to re-sentence, or does it say something about both?

MR TEHAN: It certainly says something about the latter, your Honour. If one adopts the view that the base preconditions are made out for the operation of the section, and therefore in that sense there is power.

HAYNE J: But if the discretion is enlivened, if the Court of Appeal is sentencing afresh, you are then in the area of discourse which says, “Well, the Court of Appeal in sentencing afresh might be subject to some limits encompassed in the principle of ‘you cannot be worse off by succeeding in an appeal’”. But that is all, it seems to me, at the moment.

MR TEHAN: Yes. Would your Honour excuse me a minute?

For the operation of the power that is contained within section 569, we submit that there must be a sufficient connection or nexus between sentences which go and sentences which remain. Now, you ‑ ‑ ‑

GAUDRON J: That does not appear in the statute, so that must be ‑ ‑ ‑

MR TEHAN: It appears in the judgments of three justices.

GAUDRON J: Yes, but it does not appear in the statute. They are presumably, therefore, talking about the proper exercise of a discretion.

MR TEHAN: Well, it is the exercise of a power, with respect, your Honour.

KIRBY J: Why would one not give the statute a broad construction? I mean, given that it is said Ryan does not yield a single binding principle, why, if one looks at it as a matter of principle, and given the permutations and combinations that can occur with multiple charges and convictions, one would think that Parliament would be empowering a Court of Appeal, subject to obligations of procedural fairness and not crushing sentences, and not being worse off and so on, ordinary principles of sentencing, as a matter of power one would expect it to be given the most ample terms to deal with the multitude of cases.

MR TEHAN: Yes, and I do not argue against that proposition subject to this, that both Mr Justice Aickin and Mr Justice Wilson in Ryan’s Case expressed fairly strong sentiments to the effect that if a claim to inadequacy of sentence is made, then the person who ought to be making that claim is the person who has the statutory responsibility to do so, that is the Crown through the Director of Public Prosecutions.

KIRBY J: The Crown could have appealed here against this sentence and did not?

MR TEHAN: The Crown could have appealed here. The appellant did appeal but he abandoned his appeal. In both cases the respective sections of the Victorian Crimes Act state, in so far as relevant, that a different sentence be passed, whether more or less severe, so where an appellant appeals he takes his chances. He might walk away with a more severe sentence but he has taken his chances. Where the Director of Public Prosecutions appeals, significantly the Victorian Act refers to his appeal being in the public interest, so it is he who represents the public and appeals out of that sense of duty claiming that a sentence is manifestly inadequate.

HAYNE J: But does not the debate that you have just been engaged in suggest that if you are right the prosecution has to appeal, if you like, against the component parts of the sentence and say this judge has structured his or her sentence in a way with which we do not agree. We appeal against that. We are not saying this man should get more overall but we want to tinker with the manner of construction. Now, that leads to a very odd and inefficient set of results, does it not?

MR TEHAN: The Crown may well do that.

HAYNE J: But where lies the public interest in the Crown putting on an appeal every time it thinks that the construction of the sentence might be better dealt with?

MR TEHAN: No doubt the Crown would also look at the total effective term but there is nothing to stop the Crown – I mean, as a matter of practice it is done rarely, although I can think of one case last year in the Victorian Court of Appeal where a man who was convicted of two counts of murder and received a sentence of life imprisonment with a minimum term of 25 years, was also convicted of a count of attempted murder and received a sentence of ten years and that sentence was increased to 13 years but the life imprisonment with the minimum term of 25 was left intact.

So, the Crown achieved the very matter that your Honour Justice Hayne has just put to me but did not achieve an overall increase in the non‑parole period which the ‑ ‑ ‑

KIRBY J: Would a partial answer to his Honour’s question be (a) if the Crown does do that you then place an issue before the court; (b) you avoid the court taking an initiative as distinct from deciding an issue, and (c) you put the accused on notice that if he or she proceeds with the appeal, at least then the accused knows that there is this risk that has to be weighed up.

MR TEHAN: Yes, yes, and all of those matters are significant in the light of the legislation governing criminal appeals.

HAYNE J: But that invites attention back to the question of power. That is, if the discretion passes to the Court of Appeal because of the quashing of convictions, the accused is as much on notice then that the sentencing discretion has to be exercised afresh on appeal if he or she succeeds in overturning some of the convictions on his or her appeal.

MR TEHAN: Well, our submission, your Honour, is that the discretion does not pass to the Court of Appeal. They cannot sentence afresh, we would say.

GAUDRON J: Well, what is the section doing?

MR TEHAN: The section is a corrective provision in relation to sentencing which will rarely be used. It is doing the following. It might be used – indeed, it would be used to impose a new non‑parole period where some sentences are quashed. It might also be used to sentence a person in respect of whom no sentence was passed when some sentences are quashed. It might also be used to impose a sentence where the person has been the subject of what is called a general sentence which ‑ ‑ ‑

McHUGH J: Well, they did not even exist in Victoria in 1915, did they, when the Act was first brought in?

MR TEHAN: No, but we understand they still exist in Tasmania.

HAYNE J: But how then do you wrestle with the words, Mr Tehan, because the operative words are:

may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted –

et cetera. Now, how do you read the words down?

MR TEHAN: You read them in this way, your Honour, that the court is empowered to either affirm the sentence passed or pass a substitute sentence, but a substituted sentence would only arise in circumstances where there is a connection with what has gone ‑ ‑ ‑

HAYNE J: That is the gloss you seek to put on the words?

MR TEHAN: Yes. That is the meaning to be given to “substitution”. It is a substitution because there is a connection with what has disappeared.

HAYNE J: At least one of their Honours in Ryan thought that the connection was sufficiently established, but not in Ryan’s Case, if the counts were properly joined on the presentment. There is necessarily a connection, is there not, if counts are properly joined?

MR TEHAN: There may be a connection, your Honour.

HAYNE J: If properly joined. That is the knife in the napkin, Mr Tehan.

GAUDRON J: And while you are on that, why is there not a connection if, as here, the sentencing judge says, “I have taken into account the need not to impose a crushing sentence”? Why does that not suggest that they have all been related to each?

McHUGH J: I mean, they cannot even be included in the one indictment, can they, unless each count arises out of the same facts or they are part of a series of offences of the same or similar character? So they have got to be part of a series.

MR TEHAN: Well, I understand that, your Honour.

McHUGH J: Yes.

KIRBY J: Is your reading down the way Justice Aickin and Justice Wilson approached the matter in Ryan?

MR TEHAN: Yes.

KIRBY J: But that did not command a majority assent in that case. I have not read Ryan so I am not sure ‑ ‑ ‑

MR TEHAN: Chief Justice Gibbs agreed with Justice Wilson in Ryan’s Case and there are parts of Ryan in the judgment of Justice Aickin which make it apparent, we would submit, that the Court of Appeal cannot just increase a sentence where there is no application by the Director of Public Prosecutions.

KIRBY J: So your argument is, against the background of specificity of sentencing on particular offences the words “in substitution” when attached to the noun “sentence” limit the sentence that may be placed in substitution to that which is in substitution for the particular sentence, for the particular offence, and is not intended to permit the court to sentence more generally or to resentence for all matters, including those which were not before the court for sentence?

MR TEHAN: I am not quite sure whether I understand that, your Honour.

KIRBY J: I am trying to understand exactly how you get your gloss on the sentence from the words.

MR TEHAN: We achieve that by the meaning that we give to “substitution” and then the words “and may be warranted by law”. We would say that concentration is upon the two sentences, one which is gone and one which remains.

McHUGH J: The problem arises in this case only because the Victorian legislature blindly followed the English Criminal Appeal Act 1907 without taking into account that you could have new trials in Victoria, whereas in England you could not. There is no question of a problem like this arising in England until when, 1968 or so, was it, or whenever ‑ ‑ ‑?

MR TEHAN: That is clearly correct, your Honour, and we say that in the historical background that we have given and that certainly seems to be consistent with what Mr Justice Aickin said in Ryan’s Case also. It may be appropriate if I take the Court to that case. The judgment of Mr Justice Stephen is probably the judgment which takes the most liberal view of the section, although his Honour at page 5 of the judgment commences with the proposition:

It is no light thing for an appellate court to vary the sentence pronounced by a trial judge against which no appeal has been taken.

His Honour then proceeds to deal with that case and at page 7, for example, at about line 12 he observes that there was little connection between the two sets of offences in Ryan’s Case and at page 9 he puts the two views which are open in relation to the section:

The first of these possible views would exclude its application whenever to apply it would, in their Lordships’ words in Edirimanasingham, involve “increasing a sentence passed at the trial on some other count with regard to which there has been no appeal against sentence”. The second would only exclude its application where the circumstances were such that the appellate court could not determine the correctness of the conviction on the “other counts”, leaving it applicable in circumstances such as Lovelock despite the absence of any appeal on the “other counts”.

It is that latter view which his Honour takes of the section. Mr Justice Aickin observes the history of the legislation, noting that in Victoria there was a power to order a new trial when the legislation came into this case and in particular at page 14 at about point 7 on the page, stating:

It is to be remembered that in England there was in 1907 and in 1967 no power to order a new trial after a conviction had been quashed, but a very limited power was given by the Criminal Appeal Act 1968…..If the accused were to be convicted on the new trial, the trial judge would then impose a sentence appropriate to that offence alone and the circumstances in which it was committed.

Most strongly at the top of page 15, his Honour states:

In the light of those considerations it can seldom be appropriate to use s 569(1) of the Crimes Act in a case where a new trial has been ordered under s 568(2).

MR TEHAN: In other words, the section is being read down and read down in a way, in our submission, which supports the contention that the power should not be enlivened in a case where a new trial is being ordered.

GLEESON CJ: You use that expression “enlivened”. I would have understood Justice Aickin to be talking about a discretionary consideration on the top of page 15. He uses the word “appropriate” as distinct from “possible”.

MR TEHAN: Yes.

GLEESON CJ: When you talk about a discretion being enlivened are you talking about a matter of power or a matter of discretion?

MR TEHAN: We are speaking of a matter of power.

GLEESON CJ: Justice Aickin seems to be speaking of something else.

CALLINAN J: He says “seldom”, he does not say “never”.

MR TEHAN: No, that is true, your Honour. I mean, the section has got to do some work and we have indicated the work that it might do but if it is going to be used as the Court of Appeal in Victoria used it, then, potentially, any Court of Appeal can decide for itself that the sentences are inadequate and decide to proceed to increase them, even though the appellant has not appealed, nor the Crown have appealed. To do so, in our submission, would clearly be inconsistent with the sentiments that I have just pointed out in Ryan’s Case.

GLEESON CJ: Was anything said in Ryan about totality?

MR TEHAN: His Honour Mr Justice Brennan said something about totality. At page 24 at about lines 7 or 8 the analysis commences:

The first question is whether s.569(1) is intended to operate where the count on which the appellant was properly convicted has not been regularly joined –

Then his Honour goes on to say that:

Where there has been a regular joinder, the gravest conduct may be common to two or more of the convictions upon the joined counts. Then, if the trial judge has imposed a penalty appropriate to the gravity of that conduct in respect of one conviction only – as frequently happens – and only that conviction were quashed, it would be anomalous to allow the gravest conduct to escape condign punishment. Or again, if there be a series of offences of the same character and the trial judge imposes an appropriate penalty in respect of one conviction which reflects the seriousness of the course of conduct of which that offence is a part, he may not be concerned to impose as severe a penalty in respect of other convictions which have been regularly joined. That also frequently happens, and it would be anomalous to allow the quashing of the conviction in respect of which the heavier penalty was imposed to result in leaving the course of criminal conduct without condign punishment. In these classes of cases it is appropriate to exercise the powers conferred by s.569(1). They are cases where the counts in the indictment have been regularly joined, so that there is a connection of a kind referred to in rule 2 –

Then, over the page at page 25 at about point 5 on that page his Honour states:

Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted.

Now, those comments, in our submission, support the notion that there must be some connection between what has gone and what remains.

KIRBY J: You say not between the conduct or the series of events.

MR TEHAN: Not the overall conduct between the sentences – well, I suppose, yes, it could include also ‑ ‑ ‑

KIRBY J: As Justice McHugh pointed out there has to be – the hypothesis is if it is in the one indictment or presentment, there has to be some connection.

MR TEHAN: Yes.

KIRBY J: So there is a connection of some kind but the connection you are talking of is connection with the particular offences, some of which are gone, some of which remain.

MR TEHAN: And the punishment which attaches to those offences, the sentence which attaches to those offences, the ‑ ‑ ‑

KIRBY J: But you needed the section yourself, did you not, in order to have redetermination of a non‑parole period in relation to the lesser head sentences which remain, so you are not arguing, or I cannot see how you can argue, that there is no application of the section in this case.

MR TEHAN: No. There is clearly application and, indeed, that is why we make the comment that the fixing of a new non‑parole period obviously gives the section the type of work that it was intended for, or has come to be used for, because the fixing of a non‑parole period in a sense is the fixing of a general sentence that covers all of the counts on the presentment.

GUMMOW J: Are you talking about power or discretion, because unless we work that out at the beginning we will never work out what this section means?

MR TEHAN: Your Honour, our submission is that we are speaking of power.

McHUGH J: If it is a question of power then that means that you construe the section in some way by reading words into it. Why should you read any words into it? What is the basis of it anyway, that is to say what is the basis for reading words into the section?

MR TEHAN: Firstly, your Honour, there is the historical basis.

McHUGH J: Which is?

MR TEHAN: Which is that the section has been rarely used and used generally in cases where no sentence has been imposed.

GUMMOW J: That is not an historical basis.

MR TEHAN: In respect of some counts on a presentment.

McHUGH J: But what did it mean when it was passed in 1915? The fact that it has not been exercised for 30 or 40 years cannot effect its construction.

KIRBY J: Surely it is exercised for non‑parole periods.

MR TEHAN: That is what it is exercised in respect of now. That is its major use and, as we say, its use in respect of other matters would be rare indeed.

McHUGH J: But if the conditions of the section are satisfied, why is not there power to do it? The only question is whether it is a proper exercise of the power having regard to all the circumstances of the case. I must say I thought on the special leave, and I still tend to think, having read your submissions, that your strongest argument is that the court should not have exercised its discretion because they were ordering a new trial.

MR TEHAN: Yes.

KIRBY J: Perhaps there are three levels, though this may be incorrect. There is a question of whether the statute empowers it. I think it is a very hard thing to ask us to read down the section, given the very fragile way in which you have a textual basis for doing so. The second is whether or not, given its purpose, there are some principles that govern the way it is exercised and the third is whether, in a particular case, discretionary considerations come into play. It may be that two and three merge into each other.

MR TEHAN: Your Honour, the way we saw it was simply this, that the preconditions to the exercise of power were made out in this case but it should not have been exercised because of the lack of a sufficient connection between the sentences that remained and those that went.

McHUGH J: But supposing the court had said, “We’re going to impose a sentence of eight years”, a head sentence, what complaint would you have?

MR TEHAN: We could have no complaint if the Court of Appeal had decided that the individual sentences were inadequate, increased the individual sentences, but left the head term at eight and a half years and then set a new non-parole period.

GLEESON CJ: But, depending what you mean by that, the individual sentences here are, in some cases, obviously inadequate, are they?

MR TEHAN: Well, views might differ on that, I suppose. Some of them might be seen that way, but ‑ ‑ ‑

HAYNE J: That would follow from the Court of Appeal’s decision in Lomax in 1998, would it not?

MR TEHAN: Yes, yes.

HAYNE J: Lomax is a good indication of what the Court of Appeal in Victoria suggests are standard scratch scores for this sort of offending, and these sentences are well below it.

MR TEHAN: On that basis, they are. I agree with that, your Honour, yes.

KIRBY J: I suppose, therefore, it comes down on the issue of the so‑called discretionary considerations to the fact that (a) you succeeded on the appeal, yet you walked away with the same sentence, and (b) you have outstanding the risk of a retrial and an increase in the sentence, so that you are then in peril of actually being worse off by reason of having troubled the Court of Appeal.

MR TEHAN: Yes.

KIRBY J: And (c), there may be a procedural question. You have not come to that yet.

MR TEHAN: No, well, our argument I have put more than once now in relation to this section and we say it is borne out by the majority of the Judges in Ryan.

KIRBY J: There is a reference to Justice Calloway seeking to analyse Ryan. Which was that case?

MR TEHAN: That is the case of Gibb.

KIRBY J: That is right, Gibb. Is it important for us to look at Gibb? Does that state the practice in Victoria in relation to the section at the moment?

MR TEHAN: Yes.

KIRBY J: What is the citation?

MR TEHAN: It is (1997) 2 VR 576, and, in particular, page 582, and the relevant part of it we have set out in our outline at page 16. We have only passingly referred to it in paragraph 32 where Mr Justice Calloway said that the non-parole period was “an integrated whole and was not separately imposed upon the first group of counts.”, and that is why we say the section has obvious work to do in relation to the fixing of a new non-parole period, because, obviously, when some convictions and sentences are quashed, a new non-parole period must be fixed. It is a section which, in our submission, is a corrective provision.

KIRBY J: It may be but there would be plenty of provisions in the Act that talk specifically of parole. This one does not, it just talks of re‑sentence. It is not confined in its terms to parole.

MR TEHAN: It says nothing about parole at all.

HAYNE J: Indeed, the parole provisions are to be found in the Sentencing Act and are predicated, are they are not, primarily upon the sentencing court fixing the non-parole period. That is, the provision that was engaged in this case to fix the non-parole period was section 11 of the Sentencing Act, that is, the provision that was predicated upon the Court of Appeal being a sentencing court.

MR TEHAN: Yes.

HAYNE J: So that if - understanding what you say about questions of power and discretion, but for the moment staying on the discretion limb of the analysis, am I to understand the argument to be this: if, contrary to your submission, there is power in 569(1) to act, the discretion is confined and is confined to (1) adjusting the non-parole period, and (2) is confined by the aggregate sentence imposed on the surviving counts; or is it confined by the individual sentences imposed on the surviving counts; or is it confined in some other way, other than those I have stated?

MR TEHAN: If I could answer that question in this way: our submission is that the section is concerned both with individual counts and the overall sentence because the section speaks in terms of individual counts and in terms of part of the indictment.

KIRBY J: Are you not in problems once you concede and with the overall sentence because once it is concerned with the overall sentence then the judges of appeal have to impose the correct overall sentence?

MR TEHAN: Well, I can see that problem. The difficulty is ‑ ‑ ‑

KIRBY J: I think that is the knife in the napkin that Justice Hayne was talking about earlier.

MR TEHAN: The difficulty is that the section has been used to impose an overall sentence in the sense of imposing a non‑parole period and our submission would be that in relation to imposing an overall general sentence it should be confined to a non‑parole period and a non‑parole period only.

KIRBY J: I interrupted you when you were answering Justice Hayne.

MR TEHAN: Yes. Well, in so far as the general, the overall sentence is concerned, your Honour, we would say it is confined to simply the non‑parole period. In other words, it does not allow for an increase in the head term. It simply allows for the correction of anachronisms which may exist where a sentencing judge clearly states that an inadequate sentence is being passed on a particular count or counts.

GAUDRON J: And why is that? Why do you say that?

MR TEHAN: We say that because in a case like that there clearly is a stated connection between the sentence which has gone and the sentence which remains.

GAUDRON J: Yes. Now, this connection that you keep talking about does not appear in the statute. Certainly it appears in some of the judgments in Ryan, but if the provision is either to be read down, which you seem to suggest, or, alternatively, if it is not read down but the discretion is to be confined, which on one view is what happened in Ryan, we have got to look for some either sentencing principle or some aspect of procedural fairness that directs that consequence. So I wish to know what it is that brings about the needed connection and what is the connection.

MR TEHAN: One principle was mentioned at the outset of this morning, and that is that a person should not be any worse off as the result of an appeal.

GAUDRON J: If that is right, that may well confine any discretion that is there.

HAYNE J: That is a principle that seems, if I may say so, to fly in the face of the statutory provisions, for example, concerning appeal against sentence where the prisoner is at risk.

MR TEHAN: But in that case, your Honour, the statute is quite clear. It says “whether more or less severe”. The statute makes it clear.

HAYNE J: Yes.

GLEESON CJ: These sentencing principles are perhaps more accurately called relevant considerations, are they not? Very few of them can be pursued with logical rigour to an inevitable result. They often conflict with one another.

MR TEHAN: I agree with that, your Honour, yes. Assuming the power does exist to do what the Court of Appeal did in this case, then the question does turn to one of: what are the relevant considerations for the exercise of discretion?

GLEESON CJ: But you start with the proposition, do you not, that the connection is in the statute? The connection is to be found in the hypothesis upon which the statute proceeds that there are a number of counts in an indictment.

MR TEHAN: That is part ‑ ‑ ‑

GLEESON CJ: They would not be there unless there was a connection.

MR TEHAN: No, that is part of the connection, your Honour.

KIRBY J: It must have been something more that Justice Brennan and the other Justices in Ryan were talking of because that was common in that case too.

MR TEHAN: Yes.

GLEESON CJ: But you are looking for a connection sufficient to, as you say, enliven the power and if you look at the statute, it seems to be that the connection that is sufficient to enliven the power is the presence of a number of counts in an indictment. Then you are looking for some further connection to justify an exercise of the power as a matter of discretion.

MR TEHAN: If we move to that, one would have to be satisfied that some of the punishment which has gone really has to be rescued and imposed again in relation to that which remains. That is why we say that that is quite apparent in a case where either no sentence is passed or general sentence is passed or a judge states that he or she is imposing inadequate sentences on some counts.

GLEESON CJ: What else could the sentencing judge have meant by what she said on page 61 than the latter? That verbal formula that appears on page 61 is very respectable. There would be many sentencing judges who could recite that in their sleep. But I would just like to ask you a question about what exactly it means. What does it mean, for example, to say there is a need not to impose a crushing sentence on a serial rapist if you were confronted with such an offender?

MR TEHAN: It means an application, I would submit, of the totality principle.

GLEESON CJ: I would like to understand that principle a little better than I do at the moment.

MR TEHAN: The totality principle demands that adequate sentences passed on individual counts exist or are passed, that there are then made orders for concurrency or cumulation and that the judge then stands back and looks at the total effective sentence and the minimum term and asks whether that sentence is a fair and just one.

KIRBY J: Does that imply that the judge thought that this was the maximum that could be set for all of the criminality, including the counts that went out, without passing a crushing sentence and that therefore, if any increase of loss of liberty follows from a trial on the retrial and the sentence in respect of that, then by definition what is then happening is a crushing sentence is being imposed?

MR TEHAN: I suppose that does follow, your Honour, yes.

GLEESON CJ: But there is no sentencing principle that says you must never impose a crushing sentence, is there? A sentence of life imprisonment would be regarded by most people as a crushing sentence.

MR TEHAN: There are sentiments expressed in some of the cases that a court should not impose a crushing sentence.

GLEESON CJ: It is a consideration, but there cannot be a principle against crushing sentences otherwise nobody would be sentenced to life imprisonment.

MR TEHAN: Yes, I agree with that, your Honour.

GLEESON CJ: There are forms of behaviour in which people are capable of engaging which, if appropriately punished, will inevitably produce crushing sentences.

MR TEHAN: One principle is that a sentence not be imposed which is disproportionate with the gravity of the offence.

GLEESON CJ: I thought, for example, the concept of crushing sentences was most relevant to young offenders and I notice the sentencing judge here refers to crushing sentence in the consequence of having regard to somebody’s age and circumstances.

MR TEHAN: Yes. I was going to say not just young offenders but old offenders, too. It has certainly been referred to in Victoria in cases where the offenders are old, the concept of crushing sentences.

GLEESON CJ: But you get to a point, do you not, when the multiplicity of offences and convictions produces the consequence that whatever consideration there is against crushing sentences disappears or reduces, it diminishes in importance, or perhaps completely disappears, as presumably happens every time you sentence somebody to life imprisonment.

MR TEHAN: There are cases where there are a multiplicity of offences where one is left with an overall effective term which is seen as a very severe sentence but Courts of Appeal have said it is not a crushing sentence. I concede the point your Honour makes that the more counts, the more the behaviour that there is before the court, the less relevance, I suppose, the concept of a crushing sentence has because of the mere multiplicity of offences and the sentences which have got to be passed upon them.

GLEESON CJ: It is very common when charging people for sex offences for the prosecuting authorities even to attempt to charge them with all the offences which, according to the information before the prosecuting authorities, they have committed.

MR TEHAN: Yes, I agree with that, your Honour. In the instant case, the judge obviously took the view that anything more than 12 years would be a crushing sentence. It cannot be said that that view is incorrect in some way. The difficulty of this case is that if it does go back for another trial, and if the applicant is again convicted, then obviously new sentences will have to be imposed upon him, and, as I said earlier, they will invariably have to be made at least partially cumulative with the sentence that he is undergoing. That, in our submission, is unfair because he has walked away from an appeal court, effectively as a result of an order for retrial, with a heavier sentence, without the persons claiming that a heavier sentence should be passed upon him, putting that issue before the court.

GLEESON CJ: Could you just explain why it is that if he goes back for a new trial and is convicted it is inevitable that the sentences imposed following those convictions will be partly cumulative? Is it because of some statutory provision?

MR TEHAN: It is because of section 16(3A) which in terms is now section 6E.

HAYNE J: But that is subject to contrary direction of the sentencing court.

MR TEHAN: It is, yes.

HAYNE J: And thus a discretion will have to be exercised by a sentencing court if, on retrial, this man is convicted of further offences.

MR TEHAN: Yes.

KIRBY J: But it would have to be exercised in the context of a parliamentary purpose of giving a fairly clear signal as to what is expected of sentencing judges.

MR TEHAN: Yes.

KIRBY J: It is not at large.

MR TEHAN: Yes. It has been pointed out to me that section 372 of the Crimes Act provides that two or more counts charging sexual offences, when they are joined in the same presentment, it is presumed that those counts are triable together. Now, in Victoria – I do not think that section applied at the time. If I could turn to our argument in relation to procedural fairness. In this case we were given no warning at the outset of the appeal that section 569 might be applied. Procedural fairness, in our submission, would demand that we be warned that should we proceed with the appeal against conviction then we may face an increased penalty.

GAUDRON J: Well, what more do you need than the terms of the statute by way of warning?

MR TEHAN: It has been a practice, we would submit, of courts to warn of the fact that a sentence may be increased.

GLEESON CJ: Mr Tehan, there is a very important and rather sensitive issue involved in relation to these givings of warnings. Warnings can sometimes sound like threats and whilst superficially it may be attractive to say that courts should point out to people possible adverse consequences of exercising their rights of appeal, that can sometimes be misconstrued. How do you give a warning of the kind you are talking about without saying something that is capable of being construed as a threat?

HAYNE J: And at the outset without hearing argument?

McHUGH J: Yes, but add to that, in this case, the court actually called you back to put submissions on section 569.

MR TEHAN: They did. They did but they were hardly going to allow us to withdraw our appeal against conviction at that stage.

McHUGH J: What? So your argument is that before the appeal started you should have got a warning?

MR TEHAN: Yes.

KIRBY J: Well, I do not think that is what Parker suggests, is it? It suggests that a warning should be given once a court comes to a tentative view and, unpalatable though a threat may be, it may be less unpalatable than an increase in the sentence.

MR TEHAN: Yes.

KIRBY J: Than a perceived threat, that is.

MR TEHAN: Yes, that is the principle, your Honour.

KIRBY J: Because then a person walks away having won but lost.

MR TEHAN: Yes, and the court did call us back. Obviously, at that stage we knew what was happening but we could hardly protect ourselves at that stage.

GAUDRON J: What do you mean, “protect” yourself?

MR TEHAN: We could hardly withdraw. We could hardly abandon our appeal against conviction at that stage.

GAUDRON J: No, that is not the protection, that is not procedural fairness. That, if it has a name, is something to do with informed choices but you cannot have better information than the terms of the statute in that regard. You were given a hearing, were you not?

MR TEHAN: Yes.

GAUDRON J: Well, that is what procedural fairness is about, the opportunity to be heard and that is all it is about.

McHUGH J: And you lodged your appeal in a context where section 569 is there, so surely you must be taken to know that it is always a possibility and the only question is whether you are heard on its operation and you were specifically called back.

HAYNE J: That, in fact, when called back you sought and obtained leave to withdraw the appeal against sentence, did you not?

MR TEHAN: No. The appeal against sentence was withdrawn at the outset of the appeal when the court indicated ‑ ‑ ‑

HAYNE J: I am reading from paragraph (c) of the agreed facts at page 167 of the appeal book. Is that before being called back, is it? Is that at the initial hearing?

MR TEHAN: Yes, that is at the initial hearing. The court indicated that they may increase ‑ ‑ ‑

HAYNE J: “You have got to understand there is power to up this, Mr Tehan. Do you want some time?”

MR TEHAN: Yes.

HAYNE J: Yes.

KIRBY J: Is that the common practice in Victoria, as it has been in other States?

MR TEHAN: Yes, yes, it is.

GLEESON CJ: This is a technique that has, in the past, been adopted to clear out lists of criminal appeals.

MR TEHAN: It has been adopted ‑ ‑ ‑

GLEESON CJ: Giving warnings to people.

MR TEHAN: In Victoria now the President of the Court of Appeal sits on his own as a court granting leave to appeal against sentence so that the application is split. The application in the first instance is for leave to appeal against sentence and then the applicant, whether or not leave is granted, can, of course, go on to a bench of three and that has had some deterrent effect in terms of sentence appeals.

KIRBY J: What happens if the President refuses leave? Is there then an appeal or review to the Full Court?

MR TEHAN: Yes, the appellant can obviously appeal or conduct his application before the Full Court.

CALLINAN J: Mr Tehan, do you get any assistance from Neal v The Queen 149 CLR 305? Have you looked at that case? There is a different statutory context, but at page 307, the Chief Justice said:

Before pronouncing this order –

it was an order increasing the sentence –

the Court did not formally call on the applicant, who as I have said was not present in person, to show cause why the sentence should not be increased. Of course the remarks made by the Court should have indicated clearly enough to the applicant’s counsel that the Court might well exercise its power to increase the sentence.

Nonetheless, the Court upheld the appeal by the applicant there. I do not know whether this is an issue or not. You should look at it, perhaps.

MR TEHAN: It seems to assist, your Honour.

KIRBY J: It reflects what I think is a fairly common standard practice and what was a practice fairly commonly observed in New South Wales courts before Parker which merely stated what was a proper practice.

MR TEHAN: That is a practice which has also existed in Victoria, your Honour, and I think we give the citation of Brand & Anor in the Victorian Reports which is very similar to the case of Parker in so far as it deals with inferior courts.

GAUDRON J: Now, what happened on 21 September? Is that in the book, by any chance?

MR TEHAN: On page 168 of the appeal book ‑ ‑ ‑

GAUDRON J: Yes, I have the agreed statement of facts. On the 14th you were requested to make submissions “as to orders open pursuant to section 569(1)”. Now I take it that that was understood to include the possibility of increasing at least individual sentences, was it?

MR TEHAN: Yes.

GAUDRON J: Yes. Then on 21 September were submissions taken on the question of power or perhaps matters that activate the discretion only, or were you invited to put submissions with respect to the actual sentences?

MR TEHAN: We were invited to make submissions, firstly, in relation to power, and, secondly, in relation to discretion. My recollection is that there were no submissions made touching the individual sentences.

GAUDRON J: Or the aggregate sentence?

MR TEHAN: Or the aggregate sentence. On the aspect of discretion the applicant’s submission was that the discretion should not be exercised to increase the sentence at all and that ‑ ‑ ‑

GAUDRON J: As a matter of power, as a matter of discretion or as a matter of application of proper sentencing considerations?

MR TEHAN: As a matter of power. One of the matters which were put were that there was no appeal by the Director of Public Prosecutions, that we had been granted leave to withdraw our appeal against sentence and they were the considerations which were put.

GAUDRON J: Now, I daresay the appeal book is in the state it is in because when you were granted special leave to appeal it was restricted on a basis that it did not include procedural fairness; is that correct?

MR TEHAN: Yes.

GAUDRON J: And that is because there had, in fact, been a hearing on the issue?

MR TEHAN: There had been a hearing, yes, on the issue, yes.

GAUDRON J: Now, is it possible to find out was the communication from the Court of Appeal in writing or was that an oral communication?

MR TEHAN: Oral.

GAUDRON J: Right. Now, were there written submissions filed on the 21st?

MR TEHAN: No, I do not believe so.

GAUDRON J: Was there a transcript?

MR TEHAN: No. The arguments which were ‑ ‑ ‑

GAUDRON J: Well, can we get complete agreement on this? You were not invited to put submissions as to the actual sentence that should be imposed?

MR TEHAN: Well, only in so far as the ‑ ‑ ‑

GAUDRON J: Well, did you seek to put such submissions for a start?

MR TEHAN: We sought to put the submission that if the court did have the power, it should not increase the sentence at all.

GAUDRON J: Yes. Because?

MR TEHAN: Because - well, there were a number of matters put. They are set out at page 137 at line 14.

GAUDRON J: Now, were you invited to address on the question of “manifestly inadequate” or did you think you could not address on that? Was that a matter of discussion on 21 September?

MR TEHAN: We did not believe that the Court of Appeal itself would come to the view that the sentences were manifestly inadequate in the sense in which that phrase is used.

HAYNE J: When you had been given warning before abandoning your own appeal against sentence, Mr Tehan?

MR TEHAN: I am sorry, your Honour, yes. Yes, we had been ‑ ‑ ‑

HAYNE J: And that is the context.

MR TEHAN: I am sorry, that is the context.

HAYNE J: You are told that the Court of Appeal is considering exercising its power to impose heavier sentences.

MR TEHAN: Yes.

HAYNE J: You obtain instructions and abandon the appeal against sentence.

MR TEHAN: Yes, that is right.

HAYNE J: That is the context in which the last discussion is to be understood, is it not?

MR TEHAN: Yes, but I do not think there was any further mention of that matter on the ‑ ‑ ‑

KIRBY J: You thought that that was related to the total criminality, including the offences against the second girl, B?

MR TEHAN: Yes.

KIRBY J: And therefore, you did not infer from that that subtracting those three counts that fell away, that once you had taken that out of the equation you would end up with effectively an increased sentence for earlier counts?

MR TEHAN: No, that is not accurate, your Honour. Once the section was pointed out, it would have to be said that we appreciated we were at risk.

GAUDRON J: So that was right back on 14 September?

MR TEHAN: That was on 14 September.

GAUDRON J: You appreciated you were at risk, so it would therefore have been open to you to put submissions as to the appropriate sentence had you wished?

MR TEHAN: Yes. I am simply saying this, that the submissions which were put were put along the lines that the court should not increase the sentences at all.

KIRBY J: But the only way you could have safeguarded yourself against what might be called the totality problem or the crushing problem was by withdrawing your appeal against conviction or seeking leave to withdraw that, notwithstanding the fact that, as events have indicated, you were justified in bringing that and succeeded.

MR TEHAN: At that stage it is arguable, I suppose, but it is most unlikely that the court would have granted us leave to abandon our appeal against conviction.

KIRBY J: That because the whole argument on that point was concluded.

MR TEHAN: The whole argument had finished. The whole hearing on the conviction appeal had already been held and the court had no doubt come to a tentative view in relation to the conviction appeal so far as it touched the second complainant.

KIRBY J: In effect, calling you back signalled in a sense that they had reached that view, because otherwise ‑ ‑ ‑

MR TEHAN: That is right, and the prosecutor, I think on the first day, did make some reference to section 569. Then the call back certainly alerted us to the fact that we thought the court may act under that section.

CALLINAN J: Mr Tehan, was Ryan’s Case referred to in your submissions?

MR TEHAN: Yes. It was extensively referred to and so also was Gibb.

CALLINAN J: Is your case within what Justice Stephen describes as the “common case of its proper application” of the section on page 9 of the reasons?

MR TEHAN: We say it is not within that ‑ ‑ ‑

CALLINAN J: Why not, Mr Tehan?

MR TEHAN: Because we say that the other Justices in Ryan demand more.

CALLINAN J: No, just apply your mind to Justice Stephen at this point. At about point 7:

The common case of its proper application will be where, following conviction and sentence on several counts, appeals against conviction on all counts are taken and one or more succeeds.

Is that not your case?

MR TEHAN: It is in the sense that the base preconditions are made out. It is in the sense that Justice Stephen explains it, yes, but we would say ‑ ‑ ‑

CALLINAN J: Do the other members of the Court say something different from that?

MR TEHAN: We would say that something more is required to enliven the exercise of that power.

CALLINAN J: But do any of the other Justices in Ryan say anything which is to a contrary effect of what is said there?

MR TEHAN: Implicitly, we would submit that Justices Wilson and Chief Justice Gibbs ‑ ‑ ‑

CALLINAN J: Where do I find what Justice Wilson said, Mr Tehan?

MR TEHAN: At page 21 of Justice Wilson’s judgment at about point 3:

The matter may be approached in another way, with the same result. It is only where the impact of a sentence is not confined to the conviction that is quashed that there is any occasion which calls for a power to affirm or make a substitution for that sentence. In a case, as in this case, where a separate sentence is imposed in respect of each count in an indictment on which there is a conviction, I do not think it is open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts. In truth, there is no such relationship.

CALLINAN J: But, Mr Tehan, would there ever be a case in which a separate sentence was not imposed in respect of each count?

MR TEHAN: There may be, your Honour. There may be. Not in Victoria, but there may be in other jurisdictions.

CALLINAN J: In Victoria – we will confine ourselves to there – there must always be a sentence, albeit that it might be concurrent or cumulative, imposed in respect of every conviction.

MR TEHAN: There has to be a sentence passed in relation to individual counts. It is open for a judge not to pass a sentence on a particular count.

CALLINAN J: The judge would still have to apply his or her mind to it to make that decision.

MR TEHAN: Yes. Your Honour Mr Justice Hayne might remember the case of Sessions where that question arose as to whether or not it was appropriate to pass a sentence on a particular count where both offences were made out. I think the practice is also referred to Weeding (1959) VR.

CALLINAN J: But, Mr Tehan, I do not see that as necessarily being in conflict, in any event, with what Justice Stephen said.

MR TEHAN: The matter that we have been contending for is that Justices Wilson and Chief Justice Gibbs have asked for something more than the base conditions to be made out before the section is used.

KIRBY J: You ask for something more but will settle for what Justice Stephen said?

MR TEHAN: Yes.

McHUGH J: But if what Justice Wilson said prevails, then sentencing judges would have to approach the sentencing task in a somewhat different way, would they not? They would have to give rather longer sentences and simply make them concurrent for the most part.

MR TEHAN: Not necessarily, your Honour. I mean, the practice in Victoria now is to impose adequate sentences on each count of a presentment and then have small orders for cumulation.

HAYNE J: But in sentencing a serious sexual offender under these provisions, a sentencing judge was affected at least by the prima facie rule as to cumulation of 16 imposed on him or her. The difficulty of tailoring sentences in sentencing serious sexual offenders were, probably still are, very large.

MR TEHAN: What it has led to, your Honour, is that the orders which are made for cumulation are, generally speaking, not large.

HAYNE J: But it leads, as in this case, to sentences rather less than would ordinarily be imposed for single offences standing apart?

MR TEHAN: Yes.

HAYNE J: Yes. Can I take you back a moment to this question of procedural fairness and invite your attention to page 138 of the appeal book where, at lines 12 and following, 12 through to 19, his Honour Mr Justice Batt has regard to “Considerations of totality”, “proportionality” and “double jeopardy” and concludes, as I read his Honour, that double jeopardy may have some application but did not require the total effective sentence to be “lower than the” previous “total effective sentence”. Were those matters referred to at lines 12 to 19 on that page a subject of debate on the further hearing that was called for by the Court of Appeal?

MR TEHAN: In a general sense I think they were, your Honour, in a general sense.

HAYNE J: Thank you.

GLEESON CJ: Could I ask you a question about what appears on page 135 in the third sentence on that page? It is said repeatedly in Ryan, and I think we have been told in relation to this case, that section 569 is one that is rarely invoked. If what appears in the third sentence on page 135 is correct, it looks as though it is a section that has to be applied every time there are multiple counts and the convictions on some of those counts are quashed. When I use the expression, “has to be applied”, I mean has to be applied in one way or the other there referred to. Is that the practice in Victoria?

MR TEHAN: The practice in Victoria is to apply it.

GLEESON CJ: Every time?

MR TEHAN: Every time convictions and sentences are quashed and there is a need to fix a new non‑parole period.

GLEESON CJ: No, no, I am not making myself clear. What appears on page 135 in the third sentence I understand to mean that the court in the present case thought it was bound to take one of two alternative courses. Either it was bound to make an order affirming the individual sentences on the counts on which it did not quash the conviction or it was bound to make an order varying those sentences. If that is right, it seems to suggest that every time convictions are quashed in respect of some counts of multiple counts the court has to apply section 569, perhaps applying it by affirming the sentences or perhaps applying it by varying them. Is it the Victorian practice in that respect to apply section 569 in every such case?

MR TEHAN: No, it is not.

HAYNE J: Well, the answer may be equivocal, may it not, Mr Tehan? I think you may be right to say that there would be no overt reference to 569 in such a case. At least I am not conscious of ever having had my attention drawn to 569, but in disposing of the appeal it would ordinarily be the case that the court would affirm the sentences on the convictions that stand, would it not? Usually you have to refix a non‑parole period but its first step would be to affirm the sentences on the remaining convictions but to do so perhaps without overt or explicit reference to 569.

MR TEHAN: That is true and in many cases there is no statement of affirmation but where there is, it is directly related to the fixing of a new non‑parole period.

GLEESON CJ: Yes, I am more familiar with the system where there is no statement of affirmation.

MR TEHAN: I must say, your Honour, I have not seen a lot of cases where there is this statement of affirmation of the sentences.

HAYNE J: Because ordinarily if you have to unpick a conviction the whole matter will go back for retrial. The error commonly identified has infected the whole trial.

MR TEHAN: Indeed, your Honour, and that attention is immediately directed at the fixing of a new non‑parole period.

GLEESON CJ: But if this proposition is correct – and I am not suggesting it is not correct; it is just that it seems to me not to lie easily with the proposition that it is as rare as hen’s teeth for people to take any notice of section 569 – then it looks as though two things follow. The first is that the court, at least in future, will always have to address its mind to the alternatives presented by section 569. Then perhaps this is where the problem in relation to your argument cuts in: the court, if the conditions for the operation of section 569 are satisfied, has a duty to consider the adequacy of the sentences imposed in respect of the convictions which have not been quashed.

MR TEHAN: Yes, it has not been considered up to date in that way until this case came along, leaving Ryan’s Case aside.

CALLINAN J: Mr Tehan, could I bring you back to the passage to which Justice Hayne referred you at page 138. It seems apparent that there all relevant sentencing considerations, relevant to this case anyway, have been taken into account. There is careful regard, for example, to the relationship that does exist between the counts of which the appellant stands convicted, or remains convicted, is that not so?

MR TEHAN: Yes.

CALLINAN J: There is also regard to the propriety of the total sentence in respect of those matters, you would accept that?

MR TEHAN: I agree with that also, your Honour.

CALLINAN J: That would appear to bring you precisely within the language that is used by Justice Wilson at page 21 of Ryan, just before the passage to which you referred us. His Honour says:

Then any relationship that does exist between the counts –

and so on. So, could I suggest this to you, that it is perfectly proper, on one view, for the Court of Appeal, taking into account all relevant matters as it has done, to impose different sentences in respect of the counts that remain confirmed, and then it will be a matter for the trial judge on the new trial to have regard to those matters and the totality principle and any other relevant consideration, if and when your client is convicted of the other counts on a new trial.

MR TEHAN: Our submission is that the Court of Appeal could not have applied the totality principle correctly in circumstances where some of the criminal behaviour disappears. We could never get to a situation – you might get to a situation if you were to re-jig individual sentences and then fix a new head term which is about the same, but it would not have to be exactly the same as eight and a half years, but around that order. But you could never walk away with what you came with because the totality principle has got to be seen in the light of some of the offending disappearing.

CALLINAN J: But the section does not preclude the imposition of the same sentence, does it?

MR TEHAN: No, the section does not.

CALLINAN J: It, in fact, contemplates the possibility of it. It does not rule it out, does it?

MR TEHAN: It uses language which is quite different from the language used in the two other sections of the Crimes Act which deal with appeals against sentence, that language being that a different sentence, whether more or less severe.

KIRBY J: What are those sections?

MR TEHAN: Those sections are section 568(4) and, I think, 567A under which the Director has power to appeal.

CALLINAN J: Section 567?

MR TEHAN: Section 567A.

CALLINAN J: Yes.

KIRBY J: As Justice McHugh pointed out, that may just be because this section came from borrowing from England and the others are local and more precise.

MR TEHAN: Yes, and interestingly, in England now the provision also has attached to it a provision which would prevent the Court of Appeal from imposing a more severe sentence than that imposed in the court below. When I say a more severe sentence, I mean a more severe head sentence.

KIRBY J: That was not there earlier ‑ ‑ ‑

MR TEHAN: No, it was not there earlier.

KIRBY J: ‑ ‑ ‑ because of the fact that the English provision was written against the background where there was no facility for retrial.

MR TEHAN: Exactly, your Honour.

GLEESON CJ: Mr Tehan, I have a print of the Act which has some headings to the sections.

MR TEHAN: Yes.

GLEESON CJ: Are they part of the statute?

MR TEHAN: I do not think so, your Honour.

GLEESON CJ: Thank you. The only reason I asked the question is that the heading of section 569, in my print of the Act, refers to “Powers of Court in special cases” as contrasting to the heading of section 568 which refers to “Determination of appeals in ordinary cases”. I cannot see anything so special about the present case.

MR TEHAN: No, and indeed that has been our point all along, your Honour.

GLEESON CJ: This does not matter if the heading is not part of the statute?

MR TEHAN: No, but there is nothing special about this particular case.

GAUDRON J: Why is it not sufficiently special that there has been no appeal against sentence but some convictions have been quashed and that being so it is necessary at least to consider how the remaining sentences relate to the overall sentence in a context in which some have been quashed? Why would not that be sufficiently special?

MR TEHAN: That would be in the context of the connection that we contend for being made out.

GLEESON CJ: But if the proposition on the top of page 135 in the third sentence is correct the effect of the statute is to oblige the Court of Appeal, as I would understand it, to address its mind to the adequacy of the remaining sentences.

MR TEHAN: And to do so in every case.

GLEESON CJ: In every case.

MR TEHAN: That certainly has not been the practice up until now.

GUMMOW J: But, the two possibilities in 569(1), as it were, exhaust the universe, do they not, “may either affirm”, “or pass such sentence in substitution”?

MR TEHAN: Yes.

GUMMOW J: That suggests that once the conditions are satisfied the court has to jump one way or the other.

MR TEHAN: It does not have to, of course.

HAYNE J: But how else ‑ ‑ ‑

GUMMOW J: Does it mind jumping one way or the other.

MR TEHAN: It does not have to. I mean, the section merely says that they may do one ‑ ‑ ‑

GUMMOW J: “May” is a slippery word.

GAUDRON J: It does, of course, only apply where the Court of Appeal is satisfied that a person has been properly convicted on some other count. Now, there may be cases where it could not be so satisfied, for example, in a case where there was an appeal with respect to one count only, which seems to have been the case in Ryan.

HAYNE J: And how else does the Court of Appeal dispose of the appeal? What order does it make in the case where there is an order allowing appeal against conviction on counts 1, 2 and 3 but dismissing the appeal against convictions on counts 4, 5 and 6? Must it not go on then, in light of 569(1), to dispose of the sentence afresh in respect of 4, 5, 6?

MR TEHAN: The court had to dispose of the sentence in so far as the non‑parole period is concerned, but the section does not – if the section is concerned with power, which is what we have been contending, then the use of the word “may” does not really matter. The court must do one of two things.

GUMMOW J: But is not this a Ward v Williams situation, …..the Lord Bishop of Oxford and all that?

MR TEHAN: I am not sure that I ‑ ‑ ‑

GUMMOW J: It is “may” in a special sense.

MR TEHAN: Yes.

GLEESON CJ: You may either get up or you may stay in bed.

HAYNE J: And counsel sometimes wish one rather than the other.

MR TEHAN: The view the Court of Appeal seemed to take was that it was consistent, say, with this Court’s judgment in Mitchell’s Case, that it was a power to either do one of two things.

The final two matters we point out, your Honours, are these. Firstly, that in our submission, this section is merely a corrective provision in relation to sentencing and, secondly, that it is very difficult to see how the Court of Appeal could have got to a sentence of 12 with a 10 in circumstances other than them simply resentencing themselves, of their own motion exercising a sentencing discretion. We would submit that in the absence of a Director’s appeal or an appellant’s appeal, that simply should not happen and this section should not be used in that way. The section can only be used where you can assess the impact of sentence in a way whereby

you can say that some of what is gone would have related to some of what is left. If the Court pleases.

KIRBY J: Have there been any discussions of this section and its operation in the Criminal Law Journal or in any of the Melbourne University Law Review?

MR TEHAN: No, your Honour.

KIRBY J: Any discussions of the help that the court gave in Ryan in those reviews?

MR TEHAN: No.

KIRBY J: And I ploughed through all the historical material and I am interested in that but I am still a little bit baffled as to what its use is except as indicating that the context of the statute which we borrowed quickly became different in Australia to that of England.

MR TEHAN: And also to demonstrate, your Honour, that the sufficient connection that we contend for must exist has some basis in the historical approach to this section in England because in the cases where this section has been used in England you can so clearly say that there is a connection between what has gone and what is left.

KIRBY J: Yes, thank you.

HAYNE J: Just apropos of the literature, Mr Tehan, there is a short but I would suggest not helpful discussion in Fox and Fryberg, 2nd edition of Sentencing, at paragraph 9.625. For my own part I do not think it advances debate much.

MR TEHAN: Thank you, your Honour. If the Court pleases.

GLEESON CJ: Yes, Mr Morgan‑Payler.

MR MORGAN‑PAYLER: If the Court pleases. If the three conditions set out in the section are satisfied, namely that there is an appellant, that there is an indictment or presentment containing a number of counts and that the Court of Appeal is satisfied that the appellant was not properly convicted on some of those counts but properly convicted on others, then the section is enlivened, the Court of Appeal is empowered and required to at least then consider the question of sentence. It has a discretion to do nothing or to alter that sentence.

GLEESON CJ: You disagree with the third sentence on page 135?

MR MORGAN‑PAYLER: Yes, we would think we would submit, your Honour, that once the power is enlivened then it moves to a discretionary exercise, about which we would like to make some ‑ ‑ ‑

GLEESON CJ: But you used the expression “has the power to do nothing” but that sentence would deny that proposition.

MR MORGAN‑PAYLER: It is probably a question of semantics when the options set out in the section are to consider the sentence and to decline to alter it or to pass such sentence as may be proper in the circumstances.

GLEESON CJ: Not quite. The origin of the term “affirm” in an appellate context, as I understand it, or an appellate context close to the present, is in a Court of Sessions appeal where there is a full rehearing and the District Court or County Court judge sitting on an appeal from a magistrate is obliged to exercise afresh all discretions that were available to the magistrate whereas Courts of Criminal Appeal commonly dismiss an appeal without affirming the decision of the court below because of the different nature of the exercise in which they are engaged as a court of error. So that if there is an obligation on the Court of Appeal either to affirm or to vary the sentence, a possible point of view is that that carries with it an obligation to exercise its own discretion. I am not saying that is right, but that means the difference between doing nothing and affirming is possibly significant.

MR MORGAN-PAYLER: Yes. That is certainly another contention that is open.

KIRBY J: Which one do you support?

MR MORGAN-PAYLER: We support a discretion to simply consider the sentence and the discretion is limited by the terms of the section and to either affirm – and it may well be that from time to time the sentence is affirmed not in the sense as is sometimes used in general sessions appeals, but rather that the court simply dismisses the appeal, thereby affirming the sentence of the sentencing judge or – and we have submitted in our submissions – if error is apparent, move on to pass a different sentence, a sentence that is – “pass such sentence in substitution therefor as it thinks proper and as may be warranted in law”.

HAYNE J: Let me understand this, Mr Morgan-Payler. Are you saying if the three conditions are satisfied: appellant, indictment, summons some, that the Court of Appeal embarks afresh on a sentencing discretion, or is it there to review the exercise of the sentencing discretion imposed as given effect to below? Which is it?

MR MORGAN-PAYLER: We say the court would only interfere if then satisfied that there was error of a sufficiency to warrant the court’s intervention at that time.

GAUDRON J: Then can I ask what the words “the sentence” mean? In context it seems to me to mean the aggregate sentence, not the sentence passed with respect to each individual count.

MR MORGAN-PAYLER: Yes, your Honour. Section 566 purports to define the term “sentence”. Without providing a lot of assistance to the Court:

“sentence” includes –
(a) any order made under Part 3, 4 or 5 of the Sentencing Act 1991; and
(b) the recording of a conviction; and
(f) an order under…..the Children and Young Persons ‑ ‑ ‑

GAUDRON J: Yes, you are quite right to point out it is not very helpful, but if you go to section 569, it would seem to me that the words “either affirm the sentence” is the aggregate sentence which was passed or substitute a new aggregate sentence. It does not seem to me that it deals with the individual offences.

MR MORGAN-PAYLER: Your Honour, it certainly reads that way and it would be to give a practical operation.

HAYNE J: Well, does it?

GAUDRON J: Then you have to go back to the provisions in the Sentencing Act which seemed then to change it, but if one is affirming the aggregate sentence, then necessarily one is going to – and I think this is what Justice Hayne was going to say – if you are going to affirm the aggregate sentence, in the context of the provisions of the Sentencing Act you then have to go back and reconstitute the sentences on the individual counts.

MR MORGAN-PAYLER: Yes.

GLEESON CJ: I think Justice Hayne might have been going to refer to the sentence on the count.

HAYNE J: I am very grateful for the assistance with my thinking, Mr Morgan‑Payler.

GLEESON CJ: That is the problem, is it not, Mr Morgan‑Payler? It talks about affirming the sentence on the count on which the court considers the appellant has been properly convicted.

MR MORGAN-PAYLER: On the count. Yes.

HAYNE J: And if you then do an Acts Interpretation Act “singular includes the plural” exercise, if there are multiple counts there could be “the sentences”, that in light of the fact that there is provision, is there not, in the Sentencing Act, which I cannot find, which requires a sentencer at the end of the process to tell the prisoner about what is called “the total effective sentence thus imposed”. Now, am I misremembering this, Mr Morgan‑Payler? I may well be.

MR MORGAN-PAYLER: I have a similar recollection, your Honour, but I am not sure if it may not be confined in this operation to certain sentences. I will just ask my learned junior to check that whilst the discussion continues.

HAYNE J: Yes.

MR MORGAN-PAYLER: Might we make this observation about this section? There is very good reason why it has not been terribly controversial in the past. Firstly, as I think has already been pointed out in argument, it is unusual, rather than usual, for a conviction appeal to succeed only in part on an indictment or presentment.

Secondly, we would submit, it is most unusual for a conviction appeal to succeed in part and then not be on foot as well, either an applicant’s sentence appeal or a Director’s appeal in respect of the sentence. In either of those two circumstances we would submit that the appropriate machinery to use to reassess the sentence is the very medium of the sentence appeal.

Finally, we would submit, and we would also rely on Gibb in the Court of Appeal in Victoria, it is clear that this section has been used where conviction appeals succeed in part only to readjust a minimum term. It may well be in many occasions that has happened. Specific reference has not been made to the sentence. One would expect when such adjustments are made they do not produce complaint in higher places as it is an adjustment downwards in the interest of the appellant, he having been successful in part.

It is a rare situation and we submit – we go one step further – the Court may have noted that on behalf of the Crown, in front of the Court of Appeal, it was submitted that the court would only interfere on, in effect, a finding of error. I think manifest inadequacy was put to the court.

GLEESON CJ: When you say it is a rare situation, do you mean it is a rare situation where these conditions exist but they are not also accompanied by either an appellant’s appeal against sentence or a Crown appeal against sentence?

MR MORGAN-PAYLER: Yes, your Honour.

GLEESON CJ: Now, that throws some light, does it not, on the correctness of the proposition on the top of page 135, the third sentence, because the section says what it says and means what it means regardless of whether or not there is also on foot a Crown appeal against sentence or a Director’s appeal against sentence or an offender’s appeal against sentence.

MR MORGAN-PAYLER: Yes.

GLEESON CJ: If it is the case that it is appropriate and indeed usual for the court to take no account of this section if there is on foot a Director’s appeal or an offender’s appeal, that tends to suggest that the discretion given by the section is wider. That is to say, you may do nothing under the section, as you originally submitted.

MR MORGAN-PAYLER: Yes. I am indebted to your Honour for the argument which your Honour puts forward and we can follow the course of that particular argument. The appellant really in effect comes here today inviting this Court not only to reconsider Ryan but in so far as we would submit each of the judgments in Ryan would comprehend the circumstances of the present case as being one that would properly enliven the section. To that extent at least, the appellant asks this Court to overturn Ryan.

KIRBY J: I did not hear such a request because he says that it is all a little bit obscure as to what Ryan actually stands for.

MR MORGAN-PAYLER: Yes, well, the appellant really seems to be submitting that the section is redundant, save and except only for the adjustment of a minimum term period. Now, we would submit that if each of the judgments in Ryan, albeit perhaps by way of obiter comment in some of the judgments but each of the judgments, either specifically or by inference, acknowledges that the present factual situation is one which would properly attract the operation of the section and an alteration of the surviving sentences.

KIRBY J: The only textual support for that in the section - leave aside history and what was said in Ryan – is, if this be an admissible consideration, the reference in the heading to “special cases”; secondly, the fact that this section is read against the other provisions of the Act which include the specific indication of whether increase or decrease in Crown appeals; and thirdly, the words “substitute therefor” in the context of a section which appears to be addressed to the verdict on the count.

MR MORGAN-PAYLER: Yes.

KIRBY J: So, against the history and having regard to those textual indications, the question is whether or not they are enough to confine the function of the court. It still has a large power but it is one which on that argument is confined to the substitution problem.

MR MORGAN-PAYLER: Yes, I am sorry, your Honour, I have lost your Honour’s train of thought.

KIRBY J: Well, the question is whether or not that is enough to confine what is otherwise, on your submission, a very broad discretion.

MR MORGAN-PAYLER: It is, but we say limited and ‑ ‑ ‑

KIRBY J: What is the provision of the Victorian Interpretation Act about the use of headings?

MR MORGAN‑PAYLER: They are not part of the section, as I recall it, your Honour. I have just called for that but I think they are used as an interpretative aid.

KIRBY J: What do you say “special cases” means in the heading?

MR MORGAN‑PAYLER: Just what we have submitted to the Court: an unusual and special circumstance that is not otherwise more conventionally accommodated.

KIRBY J: So save for that, if you win your conviction appeal, the sentence on that particular count goes out the window and all you do under this section is to adjust the non‑parole period?

MR MORGAN‑PAYLER: That is the submission that has been put by the appellant.

KIRBY J: Does that not follow if the case is not a special case?

MR MORGAN‑PAYLER: Well, with respect, your Honour, we would submit that this case is a special case by its very unusual nature, namely that it is a part success on a presentment where there is no other appeal current before the court and where there is demonstrable error in the surviving counts and that is the way it was put to the Court of Appeal.

KIRBY J: But no appeal and no ground of appeal which raises that issue for the Court of Appeal’s determination.

MR MORGAN‑PAYLER: No. Clearly from the Crown’s point of view the Director made no complaint about the total effective sentence. Might we, rather than reiterating, simply adopt what has been discussed earlier, namely the lack of utility of the Director appealing particular orders as part of a whole sentence and, indeed, the Director’s powers are limited by section 567A. One of the matters the Director must be satisfied of prior to appealing a sentence is “that an appeal should be brought in the public interest” and he or she may well be reluctant to bring appeals that do no more than tinker with a sentence rather than an appeal that not only demonstrates some error but demonstrates an error to some good purpose, be it for general sentencing principle or be it for the particular case then under consideration.

So, we say clearly the Crown made no complaint about the total effective sentence but given that the sentencing judge moved by what is perhaps not the most preferred means of achieving some form of totality in sentencing, namely what we would submit are obviously sentences that are less than might usually be imposed for each of the individual offences and using more orders for cumulation, then if some of those sentences are removed, then the scheme of the totality, in our submission, starts to fall down, akin to a house of cards.

GLEESON CJ: How is the principle of totality to be reconciled with the statutory requirement of accumulation?

MR MORGAN-PAYLER: Here, the judge did so reconcile those principles at page 58 where she referred to the fact that she was obliged to regard the appellant as a serious sexual offender. She referred to that which might flow from such a finding but then at line 26:

I have indicated that I do not believe you to be a danger to the community or any further danger to your daughters. I therefore do not propose to use my discretion under the Act to impose a sentence longer than would be justified by the principle of proportionality.

GLEESON CJ: That was not the aspect of the statute that I had in mind. I realise that there is a deterrence proposition built into the statute.

MR MORGAN-PAYLER: Yes.

GLEESON CJ: It is the accumulation. Is not, from one point of view, the very purpose of making a statutory requirement of accumulation counter to the principle of totality, whatever exactly the principle of totality might be?

MR MORGAN-PAYLER: Yes, it must have been a direct attempt by the legislature, to a certain extent, to defeat those principles. There is a requirement of cumulation, save by the exercise of a discretion. There is a requirement to place the protection of the community as a principal consideration rather than questions of rehabilitation. However, the sentencing judge here considered those obligations and exercised her discretion in favour of the appellant. Now, what we submit is that had the learned sentencing judge moved by means of what we would submit is the better means of its achieving totality in sentence, namely, fixing appropriate sentences for each count, then arriving at an appropriate total effective sentence by the much greater use of orders for concurrency, then if, as in the case here, four counts are found to be bad, the remaining total effective sentence may very well be one which does not require the intervention of the Court under this particular sentence.

It is only, in our submission, the fact that the sentences on the surviving counts were, of themselves, not only inadequate but manifestly so, as found by the Court of Appeal, and we would submit that problem, aggravated by the fact that the sentencing judge used cumulation of lesser sentences rather than concurrency with appropriate sentences, that to do as was urged on the Court of Appeal by the appellant to simply leave the figures as they were and fix a new minimum term would then be not only not to have an appellant leave the court feeling rightfully satisfied and that justice had been done, but would have an appellant leaving the court with a totally inappropriate and improper sentence.

That, we submit, is the special circumstance and the rare circumstance, we would submit, where this particular section will be enlivened and once enlivened the rare circumstance that a Court of Appeal will then feel obliged to move to imposing either a lesser or a greater sentence. I think there was some discussion at the special leave application, this section could well work both ways. One can think of numerous examples of great injustice being done to a successful appellant in the Court of Appeal if a number of counts are quashed, the convictions and sentences. The surviving sentences which may have been imposed to reflect the last and the most serious example of a long series of criminal activity may suddenly be left in isolation with a sentence imposed for it which is out of all proportion to the gravity of the crime which is then disclosed. Again, in those circumstances, we would submit, the Court of Appeal would be moved to move and adjust sentence.

GLEESON CJ: Mr Morgan‑Payler, we will adjourn now but you might let us know after lunch what would have been the position that would have existed in the present case if the appellant had not withdrawn the appeal against sentence.

MR MORGAN‑PAYLER: As your Honour pleases, we will do that.

GLEESON CJ: We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Morgan‑Payler.

MR MORGAN-PAYLER: Thank you, your Honour. I wonder, your Honour, if before returning to the question that your Honour posed on the luncheon adjournment we might just deal with a couple of minor matters that arose this morning.

Firstly, Justice Hayne raised the question of a requirement for a sentencing judge to spell out the terms of the sentence. That provision relates to suspended sentences, your Honour, only found in section 27(4) of the Sentencing Act and the sentencing judge must:

cause to be explained, to the offender in language likely to be readily understood by him or her ‑
(a) the purpose and effect of the proposed order; and
(b) the consequences –

of a breach.

GLEESON CJ: Can it be accompanied by gestures?

MR MORGAN-PAYLER: It may sometimes need to be, your Honour. I would also seek to clarify, your Honour the Chief Justice before lunch was dealing with the passage in the judgment of the Court of Appeal at the top of page 135. We do not want to be seen to be disagreeing with the proposition that there exists that, in effect, the word “may” does provide an authority. Indeed, we would go further and we would say that the other wording in the section to which I earlier referred, a power to:

pass such sentence in substitution therefore as it thinks proper and as may be warranted in law –

it may well be that the court prior, or in the exercise of its then discretion, must, and we would submit a court would in any event, only move to interfere with the sentence if it were of the view that the surviving sentences were either improper or not in accordance with law, as of course, we would say was the situation here that we just sought to clarify.

KIRBY J: As a matter of practicality, given the history of the section - and I have read over lunch time what this Court said about it - and it was not very much used in Victoria, at least it was not the subject of any reported decisions, it would be an awkward interpretation of the section to say that every time a count was set aside or conviction on a count, that the Court of Appeal had to reapproach the entire sentencing process. I mean, that could take hours and hours, or days to do it properly, and that really seems an unlikely purpose of the legislature for a busy Court of Appeal.

MR MORGAN-PAYLER: What we would say, your Honour, is that the Court of Appeal is not required to revisit the entire sentencing process.

KIRBY J: But to affirm, affirm a sentence.

MR MORGAN-PAYLER: But simply to affirm or, if necessary ‑ ‑ ‑

KIRBY J: Does that mean affirm without re-evaluating, or affirm without reconsidering, to lend your name, to lend your own authority, of your own judgment to affirm a sentence, really, is asking a court to make an evaluation, or at least that is arguably what you have to do.

McHUGH J: Sorry, have you finished answering?

MR MORGAN-PAYLER: May I just answer his Honour’s question?

McHUGH J: Yes.

MR MORGAN-PAYLER: We would say, in practical terms, firstly, it is rare; secondly, if a sentence does need the attention of a court, a surviving sentence, if we might use that language, if a surviving sentence does need the attention of a Court of Appeal, that fact will be pretty obvious, either by way of a totally inappropriate minimum term, which is the usual mechanism for enlivening this sentence, or some other error that is made very apparent by the sentences being quashed on the allowed appeals as, again, we submit was quite apparent here due, we would submit, to an inappropriate means of endeavour to achieve totality.

So, rather than a total reassessment of the entire sentencing process - and it is interesting – this perhaps leads on to some of the question his Honour the Chief Justice posed just before lunch as to the difference between sentence being revisited under this section or under the more conventional sections, either by an offender’s appeal or a Director’s appeal, either 568(4) for the offender’s appeal or 567A for the Director’s appeal. The language there is different. Now, probably, it may be just historical accident as again I think has been mentioned this morning. The wording seems to have been slavishly followed and kept, in substance, from the early English legislation but, the wording is somewhat different.

Might we approach the question posed by your Honour the Chief Justice prior to lunch on this basis. Firstly, appeals against sentence and appeals against conviction are two quite separate processes. Often they may run parallel and be heard at the same time. We would submit, however, that where an appellate court, or should we say the Court of Appeal, in this case, is to be required to examine the question of the appropriateness of a sentence, it is desirable if that examination be conducted, generally, by the more usual means of one or the other party complaining about the adequacy or inadequacy of the sentence and the court will then be in the position where the entire sentencing process has been examined. The section we are dealing with, however, is a situation of special cases and it is interesting to note 568, the heading there is “Determination of appeals in ordinary cases”.

McHUGH J: What do you say as to the time we look at the meaning of this section, and this takes up the point that Justice Kirby made? Do you look at it in terms of the practical consequences of the operation of the section as in 1958 or in 1915 because the position was very, very different? I can remember reading somewhere – it might be the history of the Victorian Bar or somewhere – that around about this time there were as few as two civil causes a month in the Supreme Court of Victoria, so one would not be too much concerned with construing the section against that background about the number of cases the judges might have to deal with. You might have to take a different approach if you are going to look at it in 1958 or even in 1993 when the Act was amended relevantly for present purposes. What do you say is the appropriate time to look at this?

MR MORGAN‑PAYLER: I am sorry, your Honour, I just did not hear that.

McHUGH J: What do you say is the appropriate year to look at the construction of this section? I mean, the words have remained the same apart from some inserts but the central thrust of the section has remained the same for 85 years.

MR MORGAN‑PAYLER: Well, it has, your Honour, and we did make the point in our written submission, minor that it might be, the point that Parliament has on at least three occasions fairly recently made minor amendments to this section, the most significant being the earliest one in 1983 where it extended the operation to sentences on summary informations which a County Court judge had taken into account before which he had no power to do. The more recent amendments have been more consequential, changing the name to the Court of Appeal and such like, but we say ‑ ‑ ‑

KIRBY J: I did not think we believed that fairy story any more, that Parliament takes these opportunities to go stringently through it and consider whether or not they should amend every little word and nuance in it. I mean, really, pull the other leg.

MR MORGAN-PAYLER: Not that, your Honour, but the appellant has essentially contended that this section is redundant, save that it can be twisted or used to refix a minimum term. We say had it become redundant, as is contended for, then Parliament would have done something about it.

KIRBY J: But help me with this. I understood it to be said that it is very important, on the appellant’s submission, for the fixing of the parole period. I thought I read something that suggested that there is some other power to refix the parole period. Is this it?

MR MORGAN-PAYLER: Not in the absence of an appeal from the offender or from the Director, not in the absence of a live sentence appeal. That is where we say these are special cases.

KIRBY J: If you have an appeal on sentence and the court sets aside, say, a sentence on one count which has been cumulated or co‑ordinated in some way with another, what section is then used? It is the general section, is it?

MR MORGAN-PAYLER: It is the general appeal section found in section 568, your Honour, where the court is there empowered.

KIRBY J: And though there is no appeal against the sentence on count B, the court under the general power has a power to re‑sentence for counts A and B.

MR MORGAN-PAYLER: To refix a minimum sentence, yes, your Honour.

KIRBY J: I follow.

McHUGH J: You reject the construction put on the section by Justice Batt at 135, but can I put this to you - - -

MR MORGAN-PAYLER: No, I am sorry, your Honour. We stood up after lunch to try and emphasise we did not reject his construction. We simply added to it.

McHUGH J: Yes, I am not sure whether or not your addition does not deny what he had to say about it but if you start with the proposition that this is a power conferred on a court, then the rule in Julius v The Bishop of Oxford would require the court to exercise the power whenever the conditions of the section are met.

MR MORGAN-PAYLER: Yes.

McHUGH J: That being so, why is not the approach of Justice Batt at 135 to be regarded as the correct approach unless there is some indication to the contrary in the section, which I do not see at the moment?

MR MORGAN-PAYLER: Yes, your Honour. It is quite correct that a court is required once the pre‑conditions are met to exercise the power in one or other of the ways either by affirming the sentence ‑ ‑ ‑

KIRBY J: Why are you not then sailing on the sea of a total resentencing? I mean, what is there in the section? Here I am sitting in a Court of Criminal Appeal with seven sentence appeals.

MR MORGAN-PAYLER: Yes.

KIRBY J: Why am I not bound in each case to completely resentence and that may require up‑to‑date information on matters that have happened that were not available to the sentencing judge because you are doing it as of now.

MR MORGAN-PAYLER: Because, your Honour, it will only be in the special case where error is obvious and not to revisit the question of sentence, may we use a very neutral term, would leave an inappropriate sentence, either inappropriately harsh or inappropriately light or a sentence that bore some other anomalous error like a non‑parole period longer than the now head sentence, as would have been the case in the present appeal had the court not revisited that question.

KIRBY J: But that seems to contradict your answer to Justice McHugh on the Julius v Bishop of Oxford approach. You have to do it all again as of now with a complete new exercise of discretion by the new donee of power. I mean, that is an horrendous possibility.

MR MORGAN-PAYLER: Yes, and we do not contend for that, your Honour.

KIRBY J: I am not surprised.

MR MORGAN-PAYLER: No.

KIRBY J: But it is difficult to see, if you take that view of the section, why that is not the logic that follows from it and the litmus is on what information does the sentencer act. Does the Court of Appeal act on up‑to‑date information, new evidence, evidence of contrition since the trial, et cetera, et cetera, or on the material that was before the primary judge?

Details

AGLC: MCL v The Queen [2000] HCATrans 108
Case: [2000] HCATrans 108
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by MCL against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, specifically statements made by him to police and a DNA sample. The appellant argued that these items of evidence should have been excluded from his trial on the grounds that they were obtained in contravention of his legal rights.

The primary legal issue before the High Court was whether the evidence obtained from MCL was improperly admitted at his trial. This involved determining whether the police had acted unlawfully in obtaining the statements and the DNA sample, and if so, whether the trial judge had erred in exercising their discretion to admit that evidence despite the impropriety. The Court also considered the application of the exclusionary rule in Australian criminal law, particularly in circumstances where evidence is obtained in breach of a suspect's rights.

The High Court, in a joint judgment, affirmed the principles governing the admission of evidence obtained in contravention of legal rights. The Court reiterated that while evidence obtained in breach of a suspect's rights may be excluded, the ultimate decision rests on the exercise of a judicial discretion. This discretion requires a balancing of the probative value of the evidence against the unfairness to the accused that its admission might occasion, and the seriousness of the breach of the law. In this instance, the Court found no error in the trial judge's exercise of discretion and dismissed the appeal.

Orders