Michael Adam Mustac v Queen

[2013] HCATrans 326

[2013] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A13 of 2013

B e t w e e n -

MICHAEL ADAM MUSTAC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 DECEMBER 2013, AT 2.34 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MS S.V. DAVID, for the applicant.  (instructed by Noblet & Co)

MR I.D. PRESS:   May it please the Court, I appear with MR K.G. LESSES for the respondent.  (instructed by Director of Public Prosecutions (SA))

KIEFEL J:   Yes, Mrs Shaw.

MRS SHAW: The applicant submits, your Honours, that there are two questions warranting a grant of special leave. The first question concerns the construction of section 285BA of the Criminal Law Consolidation Act 1935 (SA). The second question concerns the failure of the Court of Appeal to consider as a separate and distinct question whether the Director ought to be granted permission to appeal, having regard to the limiting purpose of Crown appeals against sentence and the residual discretion to dismiss the appeal in any event.

It is our submission that in relation to the second question the court below did not consider as a separate and distinct question whether the Director ought to be granted permission to appeal, pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act (SA), having regard to the limiting purposes for which the Director is entitled to bring such an appeal against sentence.

There was no consideration by the court as of the need to be satisfied that one of the purposes of Crown appeals would be advanced by a grant of permission to appeal.  There was no consideration by the court of whether it was an appropriate case to dismiss the appeal in any event, having regard to the residual discretion.  In the court below at application book page 49 in paragraph 40 the only indication of the reasoning of the court on this topic in respect of which the respondent submits there should be an implication of the consideration is in paragraph 40 in the last sentence:

The inadequacy and the errors which attended the respondent’s sentence demand a grant of permission.

The applicant submits that that does not support, either by implication and certainly not expressly, that the court has turned its mind, as it must, to what are conditions precedent for the exercise of its jurisdiction.  It is our submission that the failure of the court to do so is in fact supported by the way in which the court expresses itself in its earlier consideration of the other errors complained about by the respondent at the appeal. 

For example, at application book 43, paragraph 25, when dealing with what the court concluded on an alternative construction of what occurred was an error in the approach to fact‑finding, the court reasoned that that error alone might have attracted a grant of permission to appeal although it was not necessary to consider that at that stage.  In our respectful submission, an error in the approach to fact‑finding could never justify a grant of permission to appeal on its own let alone in conjunction with other factors.  Secondly, the same language was adopted by the Court of Appeal at page 48 of the application book in paragraph 37 when dealing with its conclusion that:

The discount was manifestly excessive –

for the guilty plea, that – at line 12:

This error too, even if it had stood alone, might have attracted permission to appeal.

The applicant submits that it is not permissible or, in this case, open to imply that the court did consider that those brakes on the grant of permission to appeal to the Crown and indeed, as this Court said more recently in Lacey v Attorney‑General, No 4 in the applicant’s materials, and in particular at page 583, paragraph 19 that there is a:

need to insist upon “[s]trict compliance with procedures which authorise an increase in sentence by an appellate court” -

on a Crown appeal and the court had regard to the judgment of this court in Malvaso which was an appeal pursuant to the South Australian provisions of section 352.

In Malvaso this Court held that where there had been a failure to consider the question of permission that failure could not be implied because it was an essential precondition to the grant of jurisdiction.  In our submission, the failure to make those findings is a matter worthy of special leave, in particular in a case where here the applicant’s sentence was increased from three years to seven and a half years head sentence and the non‑parole period was increased from one year to five years. 

The second question worthy of special leave relating to the construction of section 285BA of the Criminal Law Consolidation Act we say is a matter of general importance to the administration of the criminal law in South Australia because the judgment of the Court of Appeal has a broad‑ranging impact on the conduct of criminal trials and sentencing and in particular because of its conclusion that the provision has the effect of abrogating the privilege against self‑incrimination.

KEANE J:   Mrs Shaw, would not that very basis that you just articulated, or the importance of that question, would not that justify the Court of Appeal or the Full Court in taking this matter up, giving permission and then resolving it on the basis on which they did, assuming that they were right, that conviction means conviction whether after a trial or after a plea - would not that justify them in taking the matter up and having concluded that the sentence was so inadequate that they should act to allow the appeal and increase the sentence?

MRS SHAW:   Your Honour, if those steps your Honour had articulated were part of the reasoning of the court in the judgment then this Court might be able to ascertain that that in fact is what occurred.  However, the question of the discount for which the construction of 285BA was concerned had the result in terms of a difference in sentence between the learned judge at first instance considering that a deduction of 25 per cent was appropriate which resulted in a discount of one year of the sentence.  The Court of Appeal took the view that the approach ought to have been either five or 10 per cent deduction and in the result deducted five per cent which led to a difference of six months.

Now, if that was the basis upon which the court was then to consider, was this sufficient error to engage the jurisdiction of the Court of Appeal, a difference of months in the outcome of the learned sentencing judge and the outcome that the Court of Appeal arrived at would - unlikely in our submission - warrant a grant of permission. 

Secondly, in our respectful permission, when the court came to consider the question of manifest inadequacy, all that the reasons disclosed is that the court substituted its own view as to the sentence.  It did not purport to address what was the proper range for sentences for offending of this kind and find that the sentence fell below the range so that therefore this provided a vehicle to address the question of consistency of sentencing standards.

In other words, if the court had adopted a premise that showed that it was addressing the need to establish consistency of sentencing standards or it even found that this sentence was below the range of sentences, then it may well have reached a point that it could properly consider whether or not this was an appropriate vehicle to grant permission but it did none of those things.

So, at the end of the day, this judgment does not provide any guidance to courts below as to what might be an appropriate range for sentences for this kind of offending and, indeed, as the applicant points out in the reply at footnote 8, the case of Mema, which was a judgment of the Full Court only 12 months before, where there were two counts of almost identical offending, separated in point of time, the defendant was sentenced to less than what the Court of Appeal increased this sentence to. 

In our respectful submission, that is a demonstration that it is not possible to glean from this judgment the permissible steps that forgive the failure to articulate and make findings that were prerequisites to the enlivening of its jurisdiction. 

If I can come back to the construction question itself, the reasoning of the court in the application book at page 46, bearing in mind that the section 285BA is set out at application book 44, and I ask the Court to note that in the section as set out at application book 44, in subsection (7) it should read “a defendant unreasonably”. It is an error in transposition.

Your Honours, it is the essence of the applicant’s submission that this entire section is predicated upon the basis that it relates to a defendant who is to be tried before a jury and the text supports that, the parliamentary debates support that.  The reasoning of the Court of Appeal commencing at application book 46 at paragraph 33 was that it ought to give the word “conviction” a wide meaning and in the absence of Parliament having specifically excluded conviction on a plea it was entitled to adopt that wide meaning to infer that it was intended to apply also to convictions on a plea where the failure to admit the notice in essence had no part to play because clearly the plea meant there was an admission of all the relevant facts and the utility of a notice in terms of its place in a trial, namely, shortening a trial, was of course not enlivened by its use at a guilty plea.

KIEFEL J:   But the utility of a notice may also be to prevent the unnecessary incursion of costs associated with preparation for trial not just from day one of the trial and hearing evidence and here a voir dire taken at the outset would not have overcome – I am sorry, a plea after the voir dire was unsuccessful would not have overcome all of the preparation necessary for a trial.

MRS SHAW:   Your Honour, in the abstract we agree with what your Honour has put forward.  However, what is critical in relation to this section, which stands it apart from other case management type provisions that operate interstate and indeed in other sections of our Act, is that the penalty for failing to comply with the notice is the fact that the judge can, in effect, increase the sentence as a result of the non‑compliance and in the way the Court of Appeal has construed it infer that once the plea is entered it is an admission of all of the facts and therefore be used against an accused or a prisoner in relation to sentencing.

So if, indeed, Parliament intended that this section was for the purpose not only of saving the expense of a trial, which is how it was articulated in the Parliament, and it did not relate only to defendants who were “to be tried”, which is the expression in subsection (1), it did not relate only to trials before jury, which is the expression used in subsection (4) and subsection (7), then, in our respectful submission, where the interpretation has the result, as his Honour concluded, that it abrogates the privilege against self‑incrimination, such an inference should not occur unless, as your Honour Justice Kiefel, said in X7 v Australian Crime Commission there was clear and unambiguous language in the statute ensuring that it was plain that the privilege against self‑incrimination had in fact been removed.

Your Honour, in our submission, the way in which the interpretation takes the court to the sentencing stage depends not on the text of the section, which we say is confined to trial by jury in its terms, and second, nor on the purpose expressed by Parliament which was limited to utilitarian purposes at a trial and, indeed, stated not to be to put pressure on accused to admit his guilt, where that is the framework within which this section is essentially framed and, indeed, its intended purpose it is far reaching to say, as occurred in this case, that it can therefore be used against a defendant who eventually pleads as a sign of his unwillingness to facilitate the course of justice and a lack of contrition because, of course, in every case in which a defendant pleads, as the court observed below at page 46, line 38:

there is no apparent reason for not admitting any of the other facts which were capable of proof by business records or police witnesses and which, having regarding to the conduct of the voir dire and the subsequent guilty plea, were true and not genuinely in dispute.

In other words, that inference will always apply if a guilty plea is not entered shortly after the service of the notice.  The judge is required – it is a mandatory section – required to take it into account on sentencing and that cuts across other sentencing principles and squarely cuts across the right of an accused in our system not to incriminate himself.

KIEFEL J:   The qualification to that, however, must be, must it not, that subsection (7) provides that is only where a defendant unreasonably fails to make an admission so that the sentencing court could take these matters into consideration.

MRS SHAW:   Except, your Honour, at a practical level, as I have indicated and the Court acknowledged, once you plead the factors were never genuinely in dispute and therefore, necessarily, it was unreasonable.  So that is where this has far‑reaching effects, and indeed it must therefore, contrary to the intention of Parliament, through this route place pressure on

an accused person to consider whether or not they ought to plea because of the risk of punishment through this sentencing process and, in addition, depriving them of the benefit of contrition which might be available to be proved through a different route. 

In other words, oftentimes in a criminal trial, or some criminal trials, an accused might admit as part of his case many of the objective elements of an offence but put in dispute the question of intention.  The court might be able to divine from that that there is contrition, but it should not also be held against the defendant that because he has not admitted facts at an earlier point in time, therefore his sentence should be increased or he does not get the benefit of the contrition. 

So, in our respectful submission, this construction by the court does have far‑reaching effects and in terms of the grant permission, at the end of the day, although, as I said, the court decided the discount was manifestly excessive, in real terms the difference in the penalty that would be imposed was months.  So, in our respectful submission, this is a matter that is of general importance to the conduct of trials because if, indeed, it remains as the law in South Australia, it will in every trial be a matter that provides a pressure point.  This is borne out by the facts of this case in particular ‑ ‑ ‑

KIEFEL J:   I think your time has passed, Mrs Shaw.

MRS SHAW:   I am sorry, your Honours.  Thank you, your Honours.

KIEFEL J:   We need not trouble the respondent.  I will ask Justice Keane to give the reasons of the Court.

KEANE J:   The applicant seeks to argue that section 285BA(6) should be read as if it provided “where the defendant is convicted upon the verdict of a jury” it is not permissible to add words to the provision in this way. It is well understood that an accused may be convicted either upon the verdict of a jury or upon his or her own plea of guilty. To accord the provision its ordinary and natural meaning also gives effect to the evident purpose of the provision which is to enable the sentencing court to take into account an unreasonable failure to co‑operate in the administration of justice.

The applicant also seeks special leave to appeal to agitate an argument that the Court of Criminal Appeal failed to address the residual discretion to decline to increase the applicant’s sentence. 

This argument does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  The application should be refused.

KIEFEL J:   I agree.  The application is refused.

AT 2.56 PM THE MATTER WAS CONCLUDED