MCL v The Queen

[1999] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M107 of 1998

B e t w e e n -

R H McL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 1999, AT 9.30 AM

Copyright in the High Court of Australia

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

MR W.H. MORGAN-PAYLER, QC:   I appear, if it please the Court, with my learned friend, MS C.M. QUIN, on behalf of the respondent.  (instructed by P. Wood, Solicitor for Public Prosecutions)

McHUGH J:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, this case concerns the power of an appellate court to interfere with sentences of its own motion.  In this case, neither the appellant nor the Crown made application to the court for the sentences to be varied.  The court took it upon itself to do so, having been satisfied of the preconditions set out in section 569(1) of the Crimes Act.

KIRBY J:   Presumably it did so on notice to you because they deal with the arguments that you put against the course that they took.

MR TEHAN:   There was no denial of procedural fairness, your Honour.

KIRBY J:   You say that, but in New South Wales, and I know in Queensland and other States, the courts are following a decision in which I participated in the Court of Appeal in Parker v The Director of Public Prosecutions which is to the effect that if a court intends to up the ante, they give a notice to a party so that they can consider whether they will seek leave to withdraw their application for leave to appeal.  Now, is that not a principle that is observed in Victoria and, if it is not, should it not be?

MR TEHAN:   It is a principle that is ‑ ‑ ‑

KIRBY J:   If they were considering effectively the sentence has been increased because you may be put up for trial on the other offences, in effect the result will be that though you have succeeded in your appeal, had certain convictions quashed, you stand subject to a lengthier period of imprisonment.

MR TEHAN:   That is right, your Honour.

McHUGH J:   You are at risk, and it may be that if you are convicted again on the other offences, the judge will just simply make sentences in the new trial concurrent with what you are already service.

KIRBY J:   But they would be for offences against another person.  They would not normally attract concurrence.

MR TEHAN:   That is unlikely, your Honour, because the offences that the new trial will be held upon concern the second victim and indeed ‑ ‑ ‑

McHUGH J:   Yes, but the judge might legitimately take the view that it was all part of very lengthy criminal enterprise, single enterprise, against both these girls.

MR TEHAN:   Under the Sentencing Act the judge would be bound to impose some cumulation of sentence with respect to ‑ ‑ ‑

McHUGH J:   Is bound to impose some - - -?

MR TEHAN:   Some cumulation of sentence.  It would be most unlikely that the sentences would be wholly concurrent, with respect.

KIRBY J:   The decision I was referring to is Parker v The Director of Public Prosecutions. Have you ever heard of it? It is in (1992) 28 NSWLR 382. It has been followed in Queensland and in South Australia, I think, and it just seems to me that it may well have been applicable in this case, if their Honours were inclined to feel that the matter was one which attracted a higher penalty and, indeed, cancelled out your success on your appeal against conviction, that principles of natural justice, procedural fairness or avoidance of double jeopardy, required giving you some notice so you could consider your options.

MR TEHAN:   Yes.

KIRBY J:   You do not raise this, or you have not raised it until now, but it just occurred to me.  When one develops a principle, one becomes, shall we say, attracted to it.

MR TEHAN:   At the outset of the application in the Court of Appeal we abandoned our application for leave to appeal against sentence.

KIRBY J:   That was not opposed by the Crown?

MR TEHAN:   That was not opposed and, indeed, after the hearing of the appeal the court called us back, asking for submissions upon the application of section 569(1).  So that was the procedure that the ‑ ‑ ‑

McHUGH J:   It would be a most unsatisfactory state if the court could not increase the sentences.  I mean, speaking for myself, the overall sentences seem to me to be quite light in any event, but when you look at the individual counts, 18 months for rape, 12 months for incest, and that is the product of the totality principle.

MR TEHAN:   Yes, but there was no material before the court to suggest that the learned sentencing judge was imposing manifestly inadequate sentences.  The reality is that the Court of Appeal simply came to that decision on its own, without the Director of Public Prosecutions putting a claim before the court as to manifest inadequacy and with the appellant, more importantly, not appealing against sentence.  If an appellant appeals against sentence pursuant to section 567 of the Crimes Act, he places himself in jeopardy of having his sentence increased pursuant to ‑ ‑ ‑

McHUGH J:   That may be the case by reason of the operation of section 569(1).  In Ryan’s Case, Justice Aickin said that:

The words are however apt to apply to a case where the appeal is against conviction on two or more counts and will be applicable only where the appeal is successful on some but not all counts.

And Justice Wilson, with whose judgment Justice Gibbs agreed, said that the principal area of operation of the section is where quashing the counts has an impact on the penalty for other counts. 

MR TEHAN:   Your Honour, it is under section 568(4) of the Crimes Act that an appellant appealing against sentence places himself in jeopardy of having a more severe sentence imposed upon him.  In respect of Ryan’s Cast, there is a diversity of opinion.

KIRBY J:   Justice Batt says at page 84 that:

Ascertainment of the ratio decidendi of Ryan is, with respect, not without its difficulties.

What did his Honour mean by that?

MR TEHAN:   Indeed, your Honour, I was just - well, we agree with that proposition, your Honour, and we say that for that reason alone this application is worthy of a grant of special leave.  There needs to be the clearest statement, in our submission, by this Court to appellate courts throughout the Commonwealth ‑ ‑ ‑

GUMMOW J:   What relief would you seek?  It is not a debating shop.  The order you seek are at 103, are they?

MR TEHAN:   Yes, your Honour.

KIRBY J:   Let me get it very clear in my mind.  You sought leave to, and was granted leave to appeal against conviction.  You succeeded in part in that and had the convictions in respect of the second complainant set aside ‑ ‑ ‑

MR TEHAN:   Four out of five.

KIRBY J:   And to that extent your appeal was worth bringing.  Then, the net result on re‑sentencing was that you ended up with the same sentences as had been imposed for all of the criminality, including that complainant, and including the matters upon which you had succeeded.

MR TEHAN:   Exactly.  We went to the Court of Appeal with a sentence of 12 years and a minimum term of 10 years and we came back with exactly the same sentence, in spite of the reality that the appellant’s criminality was reduced.

KIRBY J:   Can I ask you this?  Is it a practice in Victoria – I mean it was a well-established practice in New South Wales which was breached in a case when I was at the Bar and a case I was in, and that I never forgot, and that came up in Parker, the judge would give you a warning if there was a risk that your appeal would lead on, though you might succeed, but that if you failed, the judge will increase the sentence.  Now, effectively, your client has suffered an increase in sentence because he is now exposed to the risk of a sentence on the other offences on a retrial.  Now, is that a practice here or not?

MR TEHAN:   The practice here is to give a warning.

KIRBY J:   Was that given in this case?

MR TEHAN:   Well, it was somewhat different in this case because the court called us back to hear what we had to say about section 569.  It was not operating under section 567, because there was no appeal against sentence before the court.

McHUGH J:   Yes, but you knew from the fact that the judge wanted you to put submissions on 569 that you were at risk.

KIRBY J:   You do not deny that, surely?

MR TEHAN:   Yes, but we had ‑ ‑ ‑

KIRBY J:   But that was in circumstances where you were inferring that their Honours intended to allow the appeal and where, at least on your argument, you would be entitled to expect that the price of your appeal would not be that you would suffer an increase in your sentence.

MR TEHAN:   We certainly did not expect to get an increase.

GUMMOW J:   I am not sure what your point is.  Are you saying it was beyond power or was an abuse of discretion?

MR TEHAN:   We say that, in this case, it was beyond power because there was no connection ‑ ‑ ‑

GUMMOW J:   Why does it not fit within the words of 569(1)?  That is what you have to say, is it not?

MR TEHAN:   Because there was no connection between the convictions and sentences quashed in the remaining counts.

McHUGH J:   But there was, surely, because of the totality principle.  The trial judge compressed the sentences on each of these counts because of the totality principle.  Once some of the counts, offences, are taken out of the equation, surely it was open to the court to take the view that the original sentences on the counts that remained had to be increased.

MR TEHAN:   In The Queen v Ryan Mr Justice Aickin makes it clear that it would be in the most extraordinary of cases where a sentence ‑ ‑ ‑

GUMMOW J:   He is not talking about power.

MR TEHAN:    ‑ ‑ ‑would be increased ‑ ‑ ‑

KIRBY J:   Would you not have a dual submission:  one, that it is beyond power, as you put it, but two, that even if it is within power, that it is a power which would be exercised in the rarest of circumstances and then with full and proper notice to a party and, in particular, the opportunity that they might wish to withdraw their application.  Because the net result of this is that your client could end up with, say, five years or more in the other sentences, and he will have succeeded in his appeal, and the price of that will be increase in imprisonment and that is double jeopardy.

MR TEHAN:   Yes.  That is exactly the way we put it, your Honour.

McHUGH J:   Where is the section which you say would require the trial judge, upon your client being convicted on these other counts, to make the sentence cumulative on what the accused was already ‑ ‑ ‑

MR TEHAN:   The Sentencing Act, section 16, deals with ‑ ‑ ‑

McHUGH J:   But see, I want to direct your mind to this problem.  One of the convictions in respect of the sister remains, does it not?

MR TEHAN:   Yes.

McHUGH J:   Why cannot the judge make those other sentences cumulative with that sentence?

MR TEHAN:   He would be bound to order some cumulation on all of the other matters, with respect.  Because the status of the appellant is that of a serious sexual offender, there must be some cumulation in sentence.  The point that we make is that the issue of totality is not an issue to be determined by the Court of Appeal.  The Court of Appeal cannot say, in circumstances where it is ordering a new trial on some of the counts, “Well, we find the sentences on the remaining counts simply manifestly inadequate.”

GUMMOW J:   Cannot, or should not?

MR TEHAN:   Should not.

McHUGH J:   What is the purpose of 569 then? 

MR TEHAN:   The purpose of 569 is limited.  It enables the Court of Appeal to impose a new non-parole period.  The reason why it permits of that is because the non-parole period relates to the whole of the sentence, therefore there is an identifiable connection ‑ ‑ ‑

McHUGH J:   But nobody has suggested that in this Court in Ryan v The Queen it was limited to parole periods, did they? 

MR TEHAN:   It did not fall for discussion in Ryan v The Queen. 

McHUGH J:   But everything they said denies the proposition you just put, and so do the very words of the section:

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 maybe warranted –

That is talking about sentences, not parole periods.

MR TEHAN:   No.  But I thought your Honour asked me what work section 569 does do and we would say that it at least does the work of permitting the Court of Appeal to fix a new non-parole period ‑ ‑ ‑

KIRBY J:   But it must also go beyond that because if, say, you had multiple sentences after multiple convictions and a number are set aside, then there falls the obligation to re-sentence on those only in respect of which the conviction has been upheld.  It may be that on other matters they are quashed and an order for acquittal entered.  In that event, there has to be a re-sentence.  So it is sentence at large, but it has to be conformed within principles which include the avoidance of double jeopardy.

MR TEHAN:   Yes.  And we would say also that the Court of Appeal cannot just of its own motion say, well, the sentences are manifestly inadequate and in spite of the fact that we are ordering a new trial on the remaining counts, we will increase these sentences on the remaining counts.

KIRBY J:   Did their Honours, when you were called back, specifically direct your attention to the fact that they were considering, as it were, imposing for the remaining sentences precisely the sentence that had been imposed?

MR TEHAN:   Yes, that is true, your Honour.

KIRBY J:   Was that not then the occasion for you to be making the submissions that you are now making to us?  Did you make – leave the Parker point aside, did you make the other submissions that you are now making to us to their Honours?

MR TEHAN:   We certainly made submissions that the court should not increase the sentence passed upon us.  We certainly made that submission.  We would say that the whole issue of totality properly calls for decision by the new trial court, not by the Court of Appeal.  That is when totality falls for consideration, before the new trial court.

McHUGH J:   The other side of the coin is supposing the Crown does not put your client up and yet any court, including the trial judge, would have awarded much heavier sentences on these remaining convictions.

MR TEHAN:   With respect, your Honour, that is a matter for the Crown.  He might be acquitted on the other counts.  The fact of the matter is ‑ ‑ ‑

McHUGH J:   True, and if he is acquitted on the other counts or he is not put up on those other counts, he has slipped through with very light sentences on these remaining counts which themselves were compressed.  I mean, in some respects it shows the absurdity of the totality principle. 

KIRBY J:   Otherwise we will have him in chains for the rest of his natural life.  The totality principle is well established, including recently in this Court in Postiglione, so we start from that proposition.  The question is whether in this case what has happened is acceptable or not.  I think we have the problem.  Do you have to elaborate it and take up the full 20 minutes?

MR TEHAN:   What we say in relation to totality, your Honour, is, as I said, that is a matter which does not fall for the Court of Appeal to determine.  It falls for the new trial court to determine.  It would need the clearest statement from a primary judge that he or she is imposing manifestly inadequate sentences in order to accord with the totality principle before a Court of Appeal would act under section 569(1) and its equivalent in other States to increase the sentences.

McHUGH J:   Are you denying the power?  It seems to me at the moment that all you can say is that there is a discretion which should not have been exercised.

MR TEHAN:   We deny the power in this case.

GUMMOW J:   Why?

MR TEHAN:   Because there is no connection between the convictions and sentences which are quashed and the remaining conviction - - -

GUMMOW J:   What is required for a sufficient connection?

MR TEHAN:   The only connection is in relation to ‑ ‑ ‑

GUMMOW J:   No, no.  What, on the proper construction of the section which you seem to be urging on us, would amount to a sufficient connection, assuming those words are in the section?

MR TEHAN:   I suppose on one view of it, if there was only one complainant.  Here, of course, there were two complainants and the counts which were quashed related to a different complainant.

McHUGH J:   Yes, I know, but Justice Wilson said in Ryan:

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.

And why is not the connection here present because by reason of the sentences on the counts that were quashed, the remaining sentences were compressed because of the totality principle?

MR TEHAN:   That is a view that the court came to and came to, as I say, without any claim from the Director of Public Prosecutions to that effect.  It is not a view that the learned sentencing judge was putting forward.  She was bound, in accordance with the totality principle, to impose fair and just sentences on all counts and to then adjust – to reach a proper total sentence to use the mechanism of concurrency and cumulation.

KIRBY J:   When the court called you back, did the Crown go and make submissions which said, “Look, we are terribly sorry, we really did consider this but we think we should have really appealed against sentence.”?

MR TEHAN:   No.  The position of the Crown was that if the court considered the sentences on the remaining counts manifestly inadequate, it should increase them.  But there are divergent opinion, as Mr Justice Callaway makes clear in Gibb’s Case.  There are divergent opinions on this power expressed in The Queen v Ryan.  There is the view that is put forward by Justices Stephen and Aickin and against that there is the view put forward by Justice Wilson, with whom the Chief Justice agreed and probably, on one view of it, Justice Brennan also takes the view consistent with the judgment of Justice Wilson.  Now, it is for that reason alone that we say this case is a suitable vehicle for the grant of special leave.  In particular, it is a suitable vehicle for the grant of special leave because there was no question as the propriety of the convictions remaining which, of course, was not the case in The Queen v Ryan.  So, for the first time, this case truly raises what the true application of section 569 is.

McHUGH J:   Yes.  Your time is up, Mr Tehan. 

MR TEHAN:   If the Court pleases.

McHUGH J:   Yes, Mr Morgan-Payler.

MR MORGAN-PAYLER:   If the Court pleases, it is submitted that this application does not warrant a grant of special leave on the basis that although perhaps requiring a reading and a re‑reading, the law has been well settled by this Court in Ryan.

KIRBY J:   Justice Batt did not seem to say so.  He said, rather bluntly, I thought, that finding the ratio was very difficult.  He is the only one who wrote an opinion in the Court of Appeal.

MR MORGAN-PAYLER:   Yes, your Honour.  I do not ‑ ‑ ‑

KIRBY J:   He is screaming out to us to clarify the principle that is applicable.  I think ‑ would it not be kind for us to respond?

MR MORGAN-PAYLER:   Your Honour, the distinction, however, with this case is that there was an appeal in front of the Court of Appeal on all counts, which is what distinguishes it on the facts from Ryan.  What I do submit is that each of the judgments in Ryan indicates that in those circumstances then it is open to a Court of Appeal to re-sentence. 

It may, in our submission, assist if one views the question from the other side of the coin.  If there were not such a power to re-sentence in these circumstances it could produce great injustice.  If, for example, in an appeal all counts bar the last – all convictions were quashed bar the last, one can conceive of a situation where the trial judge had sentenced for the various counts, for the final count taking into account that similar conduct had been engaged in by the prisoner for a considerable period of time, imposed a certain sentence that was appropriate in the circumstances.

KIRBY J:   Mr Morgan-Payler, you have raised the question of justice.  The prisoner is sitting in his cell this morning and he says to himself, “The Crown did not appeal against my sentence; I withdrew my appeal with no objection by the Crown; I won my appeal; I had conviction set aside; and the net result of that is that I am subjected to a higher punishment and the risk of lengthier imprisonment.  That is unjust.”  Now, is he not entitled to say that?

MR MORGAN-PAYLER:   What I would submit in response to that, your Honour, is that, firstly, I am instructed – and I do not know if this is to become a point of contention or not – but it is reflected in the judgment, on the first day, appeals against sentence were abandoned.  I am instructed that those abandonments were as the result of a warning being given by his Honour the Chief Justice as to an apparent inadequacy of those sentences. 

KIRBY J:   I do not know anything about that.  That is not ‑ ‑ ‑

McHUGH J:   Do you agree that if the accused was convicted on a re‑trial in respect of any of these counts the judge would be bound by the Sentencing Act to make at least one of the sentences cumulative?

MR MORGAN-PAYLER:   No, your Honour.  The judge would have a discretion.  Prima facie, being a serious sexual offender, the sentences ought be cumulative unless the sentencing judge directs otherwise.  The judge would have a discretion to make them cumulative in the event that there was a re‑trial on the remaining counts, which may of course depend on a multitude of different factors.

KIRBY J:   What you have told us about the warning of the Chief Justice, assuming that to be the fact – it is not in our record and we have said before that we should only deal with matters on the record ‑ ‑ ‑

MR MORGAN-PAYLER:   Indeed, your Honour, and that is why I ‑ ‑ ‑

KIRBY J:   Assume that to be the case ‑ ‑ ‑

GUMMOW J:   We can look at it in the circumstance of a special leave grant.

MR MORGAN-PAYLER:   Yes.

KIRBY J:   But accepting that for the moment to be the case, does that not in a sense make more serious what has happened, because that then led to the withdrawal, which is a clear signal by the prisoner to the court that we do not wish to expose ourselves to double jeopardy and the risk of increase, and yet the net result of what has happened is to subject the prisoner to that increase in the risk of custodial sentence.  Because I cannot see how a sentencing judge, on the second occasion – I say this just as an immediate reaction – could not impose fresh and additional sentences in respect of a different complainant and in respect of different offences.  I think, consistent with proper sentencing principles, that would be very difficult not to do.  Therefore, the net result is that the prisoner has an increase in sentence though he withdrew his appeal so that that would not happen.

McHUGH J:   Subject to what Justice Kirby said, the one distinguishing factor here is that one of the sentences still remains in respect of that other sister ‑ ‑ ‑

MR MORGAN-PAYLER:   Of that complainant, yes.

McHUGH J:   Of that complainant, so it does not seem to me there would be any infringement of sentencing principles if the judge made no sentences concurrent, assuming he or she has the power to do so.

MR MORGAN-PAYLER:   We do not assert that the sentences would, by necessity, be concurrent, but we do submit that they may well be although, as Justice Kirby points out, it may be open for a sentencing judge in the future to add ‑ ‑ ‑

KIRBY J:   The principles of concurrent sentences may have altered since I sat in the Court of Criminal Appeal, but these are different times, different quality, different nature ‑ ‑ ‑

MR MORGAN-PAYLER:   But involving the same course of criminal conduct, involving the same two complainants, your Honour.

KIRBY J:   But they all did, all of the sentences.  On that logic, you would make everything cumulative back to square one, and that does not happen, and did not happen in this case.

MR MORGAN-PAYLER:   But it may well be the considerations for totality might produce a total concurrent – but what we do submit, if the contention – if the proposition contended for by our learned friends be correct, then the Court of Appeal would be deprived, in these circumstances, of correcting an obvious injustice to appellants in circumstances where a number of counts are quashed and sentences thereby also being quashed, the remaining sentences thereby becoming quite inappropriate and the serious sexual offender provisions are very pertinent here.

KIRBY J:   I agree with Justice McHugh.  I think it is very difficult, if not impossible, to construe the section as not empowering; the question is the proper way in which the power will be exercised.  Surely one of the principles in that regard is the principle against exposing people to double jeopardy, particularly where they have signalled they do not want to be exposed to that and they withdraw their right to seek leave to appeal in order to avoid it.  Yet it has happened.

McHUGH J:   The matter that troubles me most is that the trial judge at the new trial could, if he or she wished, make the sentences cumulative and that would then mean that the accused’s overall sentence was greater than the sentence that had been imposed by the original trial judge.

MR MORGAN-PAYLER:   I cannot deny that that might happen, your Honour, yes.

McHUGH J:   Having regard to the judgments in Ryan and the different ratio, perhaps it is a case that warrants the grant of special leave.

MR MORGAN-PAYLER:   It is really a matter for the Court.  Our primary submission is that although it does require some careful reading, one can discern the ratio of Ryan, particularly as it applies to the facts in this case.  Furthermore, we would submit that given that the applicant had turned his mind to the question of possible increases, then the applicant also ought to have been aware that if he was only partially successful as to conviction ‑ ‑ ‑

GUMMOW J:   Now, would a transcript have been kept of that?

MR MORGAN-PAYLER:   No, there is no transcript, your Honour, of the Court of Appeal in Victoria. 

GUMMOW J:   Is agreement reached as to what was said?

MR MORGAN-PAYLER:   Argument is not recorded, nor transcribed.  I think in my experience, your Honour, in the past, if it has ever been controversial, that matters have proceeded by way of affidavit from those present or interested.

KIRBY J:   His Honour asked you, “Is there agreement or could there be agreement on what was said?”  That is something that, if special leave is granted, ought to be explored.

MR MORGAN-PAYLER:   I think very often there is agreement – yes.  And I would imagine in these circumstances there could quite easily readily be agreement as far as that is concerned, and I hear my learned friend agreeing with that proposition.

We do follow the Court’s concerns, but we simply assert that the law is clear, that applicants ought be aware that they do place themselves in jeopardy.  Furthermore, this is a section that does not necessarily always work to produce results that applicants may not be pleased with.  It is a very valuable section to prevent a miscarriage.  For example, when the three qualifying counts to make an applicant a serious sexual offender have been the conviction set aside and the sentence is quashed, if the Court of Appeal then cannot re‑sentence on the remaining count, which the Sentencing Act permits.  Section 6D permits a trial judge to:

impose a sentence longer than that which is proportionate to the gravity of the offence –

Now, if the qualifying convictions go, a prisoner would be left with a totally inappropriate sentence, were it not open to the Court of Appeal, having had that matter properly before it, if it were not open to the Court of Appeal to

re‑sentence on that matter, then it would be our submission that a grave injustice might occur and, yes, occasionally ‑ ‑ ‑

KIRBY J:   The arguments for power are overwhelming, it seems to me.  The question is not power, as I think, but procedure.

MR MORGAN-PAYLER:   But, in those circumstances, one can readily appreciate the purpose of the section.  It is to be noted that it has recently been amended by Parliament, so Parliament has again considered this particular section.  It cannot be seen as an historical anachronism and, in our submission ‑ ‑ ‑

GUMMOW J:   Did the amendment have any effect on this case?

MR MORGAN-PAYLER:   No, your Honour.

KIRBY J:   Does it have any effect for the issue to be ‑ ‑ ‑

MR MORGAN-PAYLER:   It relates to the taking into account of summary informations by a sentencing judge at the higher level.

KIRBY J:   But it does not affect the issues that we have been discussing this morning?

MR MORGAN-PAYLER:   No, no.  Only in so far as we point out that Parliament has recently considered this section, seen fit to amend it and clearly it ‑ ‑ ‑

KIRBY J:   In a particular respect.

MR MORGAN-PAYLER:    ‑ ‑ ‑ would be submitted it is not seen as simply an anachronism that survives, tucked away in the Crimes Act.  In all of those circumstances, although this applicant may complain, although we cannot assert to this Court that he may not end up with something of a higher sentence, although we would submit in the circumstances it would be unlikely, in our submission, there is no question of general importance for a grant of special and, in the circumstances, there cannot be established an injustice of the type that this Court would choose to interfere in.  Those are the submissions of the respondent.

MR TEHAN:   Your Honours, section 6E of the Victorian Sentencing Act provides:

Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender ‑ ‑ ‑

McHUGH J:   That gives the judge a discretion, “unless otherwise directed”.

MR TEHAN:   Yes, but the reality is that we would have to get some cumulation where the complainant is different from the complainant on the remaining counts and the offences, indeed, are distinct and separate offences.  It is exactly that jeopardy which we say is at the heart of why this case should be granted special leave.

McHUGH J:   But on what basis?  Do you still maintain it is a question of power?

MR TEHAN:   If we are wrong about the question of power, then this court should set down the relevant considerations for the exercise of section 569.

McHUGH J:   It is not an argument that appeals to me.  We are asked again and again to set down the relevant considerations.  That is not the way the law operates in respect of discretionary judgments.

MR TEHAN:   With respect, your Honour, those considerations are important, given the divergence of opinion in Ryan.

KIRBY J:   There might be divergence of opinion again.

MR TEHAN:   There might be, but at least this ‑ ‑ ‑

KIRBY J:   It occasionally happens.

MR TEHAN:   At least this case will properly raise the true application of section 569.  It did not raise it in Ryan.

KIRBY J:   Would you explain that to me, why Ryan does not and this does?

MR TEHAN:   Because Ryan had not appealed against his conviction on the counts of handling. 

McHUGH J:   Yes, but it seems to me that all the dicta in Ryan was all one way, that there is the power to operate in this particular case.  It might be difficult to extract a ratio generally, but I would have thought that Justice Stephen and Justice Aickin would hold that it was open to the Court

of Appeal to act in this particular case, although Justice Aickin would have some views about whether or not the power should be exercised.

KIRBY J:   And the case last given by Mr Morgan-Payler is a very good illustration.  If you remove a premise on which the earlier sentence is fixed, and it is to the advantage of the accused, then it is self-evident that it would have to go back and be re‑sentenced.

MR TEHAN:   That may be the case ‑ ‑ ‑

KIRBY J:   So it is not power, it is procedure.

MR TEHAN:   Mr Justice Batt, who gave the leading judgment in the Court of Appeal in this case, did not think it was discretionary.  He looked at the matter as one of power and we still maintain that view, that it is one of power.  We only put the other opinion forward if we are wrong about that.  But our primary contention is that this case involves a question as to power.  If the Court pleases.

McHUGH J:   There will be a grant of special leave in this case.

AT 10.08 AM THE MATTER WAS CONCLUDED