Mill v The Queen

[1988] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B22 of 1988

B e t w e e n -

THOMAS NORMAN MILL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON J

DEANE J
DAWSON J

Mill

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 1988, AT 10.17 AM

Copyright in the High Court of Australia

C2Tl/l/HS 1 7/9/88

MR W.T. McMILLAN:  May it please the Court, in this matter

I appear with my learned friend, MR P.J. ALCORN,

for the applicant. (instructed by the

Public Defender)

MR P. NASE:  May it please the Court, I appear on behalf of

the respondent. (instructed by the Director of

Prosecutions)

WILSON J:  Yes, Mr McMillan.

MR NASE: At the outset of the appeal it may be

convenient if I seek leave to read the affidavit of

Gregory Luis Pigott, sworn on 1 September 1988,

and filed in the Registry of this honourable Court

on the same day.

WILSON J:  If you will just give us a moment, Mr Nase, we

will find it.	What is your attitude to this;
Mr McMillan?

MR McMILLAN:  Your Honour, my attitude is that I also would

seek leave to read and file an affidavit. It is

not with the material. It is a short affidavit

of David John Barakin which I can - - -

WILSON J:  Do you have any objection to Mr Nase reading

this affidavit?

MR McMILLAN:	I have no objection to that affidavit being read.
WILSON J:	Perhaps we will receive it and then you could make

your application.

MR McMILLAN:  Yes.

WILSON J:  Thank you. Yes, Mr Nase.

MR NASE:	If t~ere are not sufficient copies I could hand
up mine.

WILSON J:  If we could have one more copy, I think, thank

you, Mr Nase. Yes, Mr McMillan.

(Continued on page 3)

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Mill

MR McMILLAN:  Your Honours, I hand up material which

consists of that affidavit of Mr Barakin

and a written synopsis.

WILSON J: Is that affidavit in response to - - -

MR McMILLAN: That affidavit is in response, yes.

WILSON J: Yes, Mr McMillan.

MR McMILLAN: Perhaps if I could deal with the obvious

special leave point first, and in doing so

refer the Court to the principles which are

well known, of course, and in particular to

the decision of this Court in LOWE V REG.

The effect of the principle,in our submission,

is that on a matter of sentence coming before

this Court it must be shown that there is an

issue of general importance in the administration

of criminal law and that the Court should always

make allowance for the exceptional case of

manifest injustice, or manifest public importance.
That particularly arises in the judgment of
Justice Mason and it is the submission of the
applicant here that the way in which the Court
of Criminal Appeal in Queensland dealt with
the sentence was a matter which raises issues
of general importance in the administration of
criminal law.

Although the trial or sentencing judge espoused the decision in TODD, the manner in

which he approached it, and which was confirmed

by the Court of Criminal Appeal, is such as to

raise, in our submission, a new principle;

a new principle of dealing with sentences

in respect of offences that occur across

State boundaries. If I could take the Court to

page 5 of the record which is the sentencing

remarks _that fell from the sentencing judge:

~at line 8> or thereabouts, the judge refers

to the history of the matter which briefly was

that there were two armed robbery offences

committed in Victoria in late December 1979

and within a matter of days there was another
armed robbery offence committed in Queensland.

The judge then refers to the decision of the

Court of Criminal Appeal in New South Wales

in TODD and in further particular to the decision

in JENKYNS, an unreported decision of

Mr Justice Connolly before the Court of Criminal

Appeal of Queensland.

Then, if I could take the Court in particular

to the paragraph commencing at line 45:

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Mill

MR McMILLAN· (continuing):

Jenkyns may well have shown indications

of a real desire for rehabilitation that

have not been put before me in your case,

but in trying to act on the principles

stated by the judge in that case to which

I have just referred I should fix a head

sentence which reflects, along with the

sentences you got in Victoria, the

seriousness of the three crimes which you

committed in December and January of 1980.

He then proceeded to impose a term of eight years'

imprisonment and then indicated a recommendation

for parole after serving three years of that

sentence.

Now, the crux of the applicant's complaint

is the last three lines in that second-last paragraph,

namely that here was an offender being sentenced

in respect of the three crimes, that is the two

Victorian crimes and the one Queensland crime.

And although there was an espousal of the principle

in TODD it did not follow TODD.

WILSON J:  But is not His Honour simply there reflecting

the totality principle by his reference to the

three crimes and the sentences in Victoria?

MR McMILLAN: 

Yes, that could be so, Your Honour, but

the offender faced with that comment, and the
comment was adopted by the Court of Criminal
Appeal, the principle in TODD just was not applied,

that he is taking into account these three offences.

WILSON J: 

What complaint do you make of the last three

lines that you refer to?  I have not appreciated -

you agree that it is an expression, whether

applied or not, it is giving expression to the

totality principle?

MR McMILLAN:	Yes.
WILSON J:	So there is nothing wrong with it, except the

result?

MR McMILLAN:  Yes. Now, proceeding from there, the result

shows that of a total of 18 years' imprisonment -

the head sentence imprisonment for these three

offences - the expected time for parole, if all

the offences were committed in Queensland, would

be an eligibility for parole after nine years.

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Mill
MR McMILLAN (continuing):	Now, what has happened here

is that a minimum	of 11 years, in fact, must be
served before the	offender can become e.ligible for
parole.

TOOHEY J:  Mr McMillan, concurrent sentences were not

available to the judge in.. this case because the

two other sentences have already been imposed

and almost served. So what is it you are suggesting

that the trial judge should have done; should the head sentence have been lower, should the non-parole period have been lower, or should both

have been lower?

MR McMILLAN:  Both, Your Honour. The second sentencing

court must take account that an offence was committed

in the State of that court. However, applying the

totality principle and applying the principles

which are enunciated in TODD that State boundary

lines should really not play a part in separating

the episode of offences, that there should have been

a lower head sentence and a shorter period set

for eligibility of parole. It is a short point,

but an important point, and it has not come before

this Court before.

DEANE J:  What was the precise term imposed by the Victorian

court? I have only seen things that say an

effective term of 10 years?	What was the precise
sentence?

MR McMILLAN:  Yes. The term imposed in Victorian will be

seen at page 18 of the record, that is,the criminal

history sheet which was tendered at the sentence

in Brisbane. There were two charges. He received

eight years on each count; six years on count two -

WILSON J:  Two years of it was cumulative?

MR McMILLAN:  Two years of it to be served cumulatively. So

he received a total of 10 years and was required

to serve a minimum of eight years.

WILSON J:  So the sentence imposed in Queensland was, in effect,

concurrent for two years of the Victorian sentence?

MR McMILLAN:  Yes.

(Continued on page 6)

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Mill

WILSON J:  I am sorry, Mr McMillan, would you mind restating

the precise short point that you say is new.

MR McMILLAN:  The short, precise point is that when a court,

that is, a second sentencing court, faced with

dealing with the second leg of a series of

episodal offences connnenced in another State,

should receive a sentence which reflects that he

has been sentenced in the original court and that

such a sentence should not offend the totality

principle.

WILSON J: That is not a new point, is it? I mean, it is

what TODD stands for, a reported decision that has been followed in Queensland in JENKYNS and

which was referred to by the judge in this case.

The difficulty I see in the application is that

there is no real contest about the principle and
whilst this sentence might appear to be manifestly

excessive, as you know, that is not ordinarily a

ground for this Court to intervene and you have

mentioned that nine years minimum would have been

an appropriate sentence. It may even be arguable

that the minimum now is an effective 11 years,

leaving aside the heavy sentence for the moment,

is not manifestly excessive for three disparate

serious robberies, assumed they were connnitted

in the one State. You would not say of a minimum -

you would not get special leave to appeal from a

minimum term of 11 years, would you?

MR McMILLAN: Well, in the Court of Criminal Appeal in

Queensland, if that were the case, an applicant would, no doubt, be encouraged to appeal.

WILSON J:	To the Court of Criminal Appeal.
MR McMILLAN:	Yes.
WILSON J: Yes.
MR McMILLAN:	On the basis of a range of sentences that would

be applicable.

(Continued on page 7)

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Mill

WILSON J:  I mean, robbery is becoming more prevalent,

perhaps - - -

MR McMILLAN: Serious offence.

WILSON J:  - - - and it might well attract deterent

sentences that might have been suggested by the

tariff in earlier years.

MR McMILLAN: It really is the proof of the pudding argument

to support the ground of principle that we rely

on, namely that when one looks at it, he received

10 years with a minimum of eight in Victoria and

for an offence which would have to be taken as

part of the episode he received, effectively,

another head sentence of 8 years.

DAWSON J:  I am not sure what the totality principle

is. How do you explain it?

MR McMILLAN:  The totality principle is enunciated in

a number of cases; perhaps I could take Your Honour

to Thomas - - -

DAWSON J: _Just put it in your own words what you say it

1 S •

MR McMILLAN: It is this, Your Honour, that when a

sentencer is faced with a series of sentences

then the aggregate of the sentence should be

just and appropriate.

DAWSON J:  Having regard to what?

MR McMILLAN: All the circumstances: the circumstances

of the offences but so that one does not - - -

DAWSON J:  But it goes further than that, does it not,

as I understand it, having regard to the fact

that the various offences form part of the one

criminal escapade?

MR McMILLAN:  Yes.

DAWSON J: Well, you say that was so here although the offences took place, two in Victoria and one

in Queensland, they were separate geographically.

MR McMILLAN:	That principle should have applied here.
DAWSON J:	You see, the Victorian sentence was 10 years,

an effective 10 years with a minimum of 8 years;

the Queensland sentence was less for an offence

which was indistinguishable, I suppose, namely

8 years, with a very much lower minimum, 3 years.

C2T6/l/ND	7	7/9/88
Mill

MR McMILLAN:	Yes.
DAWSON J:	Why do you say that the Queensland sentence does not
then reflect the fact that he had been sentenced and

had undergone sentence in Victoria?

MR McMILLAN:  Turning only to the imposition of the

head sentence itself, it is a total of 18 years

head sentences for these three offences. One

should put aside in considering the totality

principle the eligibility factor.

DAWSON J:  What do you suggest the judge ought to have

done? I mean, if he had been sentenced for all

three offences at the one time, then no doubt the

maximum sentence would have been somewhat more than

it was in relation to the sentence which was

imposed in Victoria, would it not?

MR McMILLAN:  It is certainly less -

DAWSON J:  No, let us go into it. He, for the sake of argument,

may have got 12 years with a minimum of nine in

Victoria, may he not, or -

MR McMILLAN:  I cannot speak for Victoria, but Queensland,

my estimate would be less than nine as the minimum,

as the period for eligibility.

DAWSON J:  I am just looking at the sentence that was imposed

in Victoria, you see. The trial judge thought it

necessary to take account of the second offence

by making two years not concurrent, in other

words, adding two years for the second offence,

and I was just saying you add another two years

for the third of fence and then you look proportionately.

at the minimum and 12 with a minimum of nine

would seem to be a quite reasonable sentence.

MR McMILLAN:  Yes, but he had already served, of course,

in Victoria a minimum of eight years when he comes

to Queensland.

DAWSON J:  And the minimum in Queensland is nine years, when

you add the Queensland sentence.

MR McMILLAN:	The Queensland sentence?
DAWSON J:	Which is a m1n1mum of three years added to a -

it is 11.

(Continued on page 9)

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Mill

MR McMILLAN:  Yes. That is the total that would be served

by him before he is eligible for parole. Whether he

is released on parole is a matter for the parole

authorities.

DAWSON J:	But then, the word used is "reflect" the fact
that these offences were all part of the one
criminal escapade. There also has to be
some reflection of the fact, I take it, that they
were conunitted in different States and the Queensland
Court has to impose a sentence which demonstrates
its attitude towards offences of this sort. It
is a matter of compromise, is it not, largely?
MR McMILLAN:	Yes, but turning back to a remark which we made earlier, Your Honour, if for example there
had been a 12 years head sentence imposed in
Queensland, then if there had been no non-parole
period recommended he would become eligible
pursuant to the PAROLE ACT for parole at six years
when half the termed had expired.  So whichever
way one looks at it the principle, in our submission, appears to have been offended.

WILSON J: What, in Queensland even if a judge considers

the offence sufficiently serious as not to fix

a minimum term, the law moves in and in fact

fixes one?

MR McMILLAN:  Yes, section 53 of the -

DAWSON J: At half the head sentence?

MR McMILLAN:  Yes, it says half, but he only becomes

eligible at that stage.

WILSON J:  I see.

MR McMILLAN:  Yes. But here he will not become eligible

until he has served 11 years.

WILSON J:	Is he eligible for remissions? Do they operate
on the non-parole period?
MR McMILLAN:	I understand not.

WILSON J: In some States they do, I think, but it is

not always the same.

MR McMILLAN:	Yes.
WILSON J:	You face another - if one turns to another aspect of
it, he was treated fairly leniently in Victoria
really, in the light of that earlier conviction for which he received an eight-year sentence in
1975 for armed robbery. He comes up then in 1980
and the first armed robbery is set at eight years.
It would appear to take no account of his previous
conviction.  So that 10 years is not a particularly
high figure for taking into account the two
offences in Victoria.
Mill

C2T8/l/JM	9	7/9/88
MR McMILLAN:	Yes.	But when he comes to Queensland he

has already had that imposed and the sentence

in Queensland should reflect that he has had

this sentence imposed.

DAWSON J: When you say "reflect", that is what I found

difficult. Assume that the sentence in Victoria

was not light but a heavier sentence and he had

served that part that he had to serve in Victoria,

do you say that the Queensland judge could say,

"I am just simply going to let you go?"

MR McMILLAN:  No, Your Honour, we do not for a moment

suggest that.

DAWSON J: So he has to impose something additional for the

fact that the offence was committed in Queensland

even though, if they had been heard together

there may be no additional sentence - if they nad been all heard together in Victoria, there would have been no additional term by reason

of the third offence.

MR McMILLAN:  Yes.

DAWSON J: Well, is that not rather what he did?

MR McMILLAN:  The head sentence - I keep coming back to

it but the head sentence did not reflect that.

There was an 18-years' head sentence, in effect,

imposed on this man in respect of three offences.

DEANE J:	Are you not there really identifying the problem in the case and that is this: it is misleading
to look at parole or minimum sentences; the courts should only look at the sentence of
imprisonment that the man might have to serve?
That raises the point squarely:  when they talk
about this principle of totality, do you take account of it when you cannot impose a concurrent sentence if you simply impose the sentence
your inability to impose a concurrent sentence? appropriate to the crime without regard to
Or should you impose, in a case such as this,
a head sentence of, say, two years, even though
that is inappropriate to the facts of the actual
crime?
MR McMILLAN:	That is it, I would say, in a nutshell,

Your Honour, and if I were asked as to the most

appropriate sentence in Queensland, it would

come very close to that as the head sentence.

DEANE J:  Two or three years?

MR McMILLAN: Yes. If His Honour did not then go on and

recommend a period for eligibility of parole
then it would automatically be one year in respect

of two, or 18 months.

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Mill

DEANE J:	But when you are talking about parole, you are
really diverting attention from the point you
want to make?
MR McMILLAN:	Yes.
DEANE J:	Whether or not somebody gets paroled according to what a parole board says, is an important
factor. But what we are primarily concerned
with is the period this man has been ordered to serve in gaol.
MR McMILLAN:	Yes. That should be the determining factor,

yes. That approach really was looked at in the

decision of this Court in the case of LYONS.

DAWSON J:  But even on that basis, the sentence for a fourth

conviction of armed robbery of eight years is

a light sentence.

MR McMILLAN:  Yes, I see your point. Yes, it would be

four years by the time he reaches Queensland.

DAWSON J: And that is very light. Fifteen years, for instance,

would, for a fourth conviction, noc be considered

excessive by many. That means that you could say

that the judge in Queensland has cut the sentence

by a third to reflect the facts which you say

he ought to reflect.

MR McMILLAN: If you separated them in time, that would

be so, with respect, Your Honour, but here you

had one in 1975, a further two in 1980 - three,

in effect, but two in Victoria.

DAWSON J: Yes, and the sentence has to reflect that fact

and it does, by cutting down what would be, for

the sake of argument, a sentence of 15 years

to eight years.

(Continued on page 12)

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Mill

MR McMILLAN: Well, looking at that, he would have eight

years for the first offence and then, if he had

committed the three offences in Victoria, the

question would then arise as to whether he would

have received 18 years.

WILSON J: Well, you keep saying 18 years, Mr McMillan.

Could you please say 16 because there is a

concurrent term of at least two years and what

do the papers mean when they say he has served

something less than eight years? How much less?

MR McMILLAN:  It was a little less, so I understand. I

endeavoured to find that out but it was not much.

WILSON J:  No.

DAWSON J: It would be the remissions on - - -

MR McMILLAN: It was not significant.

DAWSON J:	The remissions on top - - -
MR McMILLAN:	Yes, it was some months as - - -

WILSON J: Well, remission - if it was remissions, they

only amount to a third of - - -

MR McMILLAN:	Yes, but I - - -
WILSON J:	From eight years.
MR McMILLAN:	The indication is that he - as soon as he was

released out of prison in Victoria, he was

extradited immediately to Queensland and he was

dealt with within a matter of weeks in Queensland.

WILSON J: Yes, so presumably there was no. significant point

of liberty, if that made any difference, I do not

suggest it did, but my correction of - no court has

imposed 18 years and the effective head sentence is

no more than 16.

MR McMILLAN: Sixteen.

DAWSON J: And you see - - -

DEANE J:  I do not follow that. He was sentenced to ten years in Victoria and he is now sentenced to eight years -

WILSON J: But whilst the sentence of ten years still has

two years to run and those two are then concurrent.

The effective total is 16 years, is it not?

MR McMILLAN: Well, it could go further in that he effectively

was 24 years because there was eight years on each

count and a direction that there would be six years

served concurrently.

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Mill

WILSON J:  But if you are dealing with sentences being

served concurrently, one talks of the effective

sentence, does not one?

MR McMILLAN:	Yes.
WILSON J:	And you had better arbitrate between my brother

Deane and me as to whether it is 16 or not.

MR McMILLAN:  I would not dare to.

DEANE J: Well, you can say he was sentenced to an effective

eight years in Victoria if you qualify it and he
is to be deprived of all remissions that prisoners
in Victoria normally get but he has been sentenced

to ten years in Victoria, subject to his getting

some remissions.

MR McMILLAN:	Yes.
DAWSON J:	But that ten years, two of that ten years will

expire whilst he is serving the sentence in

Queensland. That is the point that is being made.

MR McMILLAN:	Yes.
DAWSON J:	..... to run.
MR McMILLAN:	Yes, I find material in each of the three Judges

who have been addressing me because to the prisoner

perhaps he got ten years buti effectively with concurrent application, there was eight years.

DAWSON J: Correct me if I am wrong, but my understandin~ and

I can speak only of Victoria, sentences of more than

20 years for armed robbery, a succession of armed

robberies are not unknown.	I have in mind MORGAN's
case.

MR McMILLAN:  Yes. The highest sentence that I am aware of

is one that was pointed out to me by my learned

friend this morning. It was back in 1984 of 17 years.

It was a very, very heavy case. There was something like five, even more, seven, offences committed very

closely together. There was a run up the Queensland coast. He had a long history as well. But I do not think Queenland have hit the 20-year line yet.

(Continued on page 14)

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Mill

DAWSON J:  My recollection is that it has been hit, as you

put it, in Victoria, at least on one occasion.

I am merely pointing out that there are, in fact,

four armed robberies and your client has an

extensive criminal record apart from that and

in the circumstances it may not be possible to

say that the sentence was excessive, or, put it

alternatively, the judge did not take into account,

did not reflect, the fact that he had served some

time in Victoria and had a sentence imposed on him

in Victoria.

MR McMILLAN:  The matters which the Court must deal with,

however, in our submission, is the episodic commission

of those offences over the December/January period.

That is the point that we seek to bring before

the Court.

DEANE J:  Do we know whether the Victorian judge was aware

of the pending Queensland charges?

MR McMILLAN:  Yes. We attempted to find out but the records

went back eight years and they could not be located.

We can only speculate. Finally, our submission

has to boil down to this, that if one pays regard

to the concept that Australia is a sovereign

independent federal nation and applying recent

principles enunciated in BREAVINGTON, then looking

at these head sentences together, merely because

there are State boundary lines intruding, would

seek to counter that emerging approach as to

different State institutions. That is really the

summation we leave with the Court. Those are

my submissions.

WILSON J:	Thank you, Mr McMillan. Yes, Mr Nase.
MR NASE:	Yes, may it please the Court, I have an outline

of submissions which I hand up.

WILSON J:  Thank vou.

MR NASE:  May I say something about the mathematics first.

He was s~ntenced in Victori? on 1 September 1980.

He was sentenced in Queensland on 10 March 1988.

WILSON J:  10 March?

MR NASE:  10 March 1988. So after serving seven and one

half years of the Victorian sentence, he was then

sentenced in Queensland.

WILSON J:  It may have pre-dated the date of sentence and

that could explain the references to eight years;

alternatively, the phrase"something less than eight years 11 could mean seven and a half?

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Mill

MR NASE: Well, mathematically it is seven and a half years.

WILSON J:  Only if the sentence dated from the date on which

it was imposed?

MR NASE:  Yes, and ignoring that he may have spent some time

in custody before being sentenced in Victoria. But dealing with the sentences actually imposed; he was

sentenced in Queensland after serving seven and

one half years of the Victorian sentence, so that

then being sentenced to eight years imprisonment

the effective head sentence was 15\

years, that is to say, the Queensland sentence

added five and a half years to the head sentence

and three years to the non-parole period, or by

whatever term we refer to it.

(Continued on page 16)

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Mill

DEANE J:  .I do not understand that. I mean, the head

sentence that he had to serve in Victoria was 10

years subject to things that apply to all prisoners.

MR NASE:	Yes.
DEANE J:	The Queensland sentence added eight years to that.
MR NASE:	No, it did not, Your Honour, because when he was
sentenced he was no longer in Victoria. He was in
Queensland.  The Queensland sentence commenced
to run from 10 March 1988.
DEANE J:	What if he had been sentenced in Queensland at
the same time as in Victoria?  They would have to
say the effective head sentencE was 18 years.
MR NASE:	The Queensland sentence, unless otherwise specified
by the sentencing judge, is always a concurrent
sentence.  So the Queensland sentence was a concurrent
sentence, unless otherwise specified. It was not
otherwise specified in this case, so the Queensland
sentence was concurrent for its first two and a half
years with the Victorian sentence.
DAWSON J:	So what you mean is while he was in gaol in

Queensland. for two and a half years the Victorian

sentence was running as well?

MR NASE:	Yes.
DAWSON J:	So that the additional period - - -
MR NASE:	He had been discharged from custody, from serving

the sentence in Victoria.

DAWSON J:	But the sentence continued to run?
MR NASE:	Yes.
DAWSON J:	Yes, so that it was de facto concurrency?

MR NASE:  And within the period of two and a half years

he may have been returned for some breach to serve

the balance of the term, but one would assume that

being safely in custody in Queensland that would

not occur.

DEANE J:	Mr Nase, while I am interrupting you, is the
three year non-parole period in Queensland an
effective minimum three years, or is that three years
reduced by other factors?
MR NASE:	I must apologize by not being entirely certain, but
I understand it to be a period of three years that
he must serve, but I am not sure that I am correct. I am sorry, Your Honour, for being not so precise.

C2Tl2/l/HS	16	7/9/88
Mi 11
TOOHEY J:	Mr Nase, how does the question	of remissions fit

in to the Victorian sentences?	The length of time
served by the applicant rather	suggests that there
were no applicable remissions.

MR NASE:  There was an order that he serve eight years. There

was a non-parole period specified of eight years.

TOOHEY J:	I was not thinking of the non-parole period itself, but the ordinary fact of remissions.
MR NASE:	All we have to go on is the fact that after serving seven and a half years of the sentence he was in Queensland being sentenced. So, in fact,
if he was released by virtue of remission, he received two and a half years-worth of remissions
on the 10-year sentence.  We have a certain
number of mathematical facts;  the date that
he was sentenced in Victoria, the date he was
sentenced in Queensland and when his head sentence
expires, and adding those dates together the
sentence to which he was sentenced adds up to 15\ years.
TOOHEY J:	May it be that the period of seven and a half years

apparently served in Victoria represents the

10 years less remissions?

MR NASE:  It may well. I simply do not know, Your Honour,

and that being so, I might observe that the head

sentence is not significantly different from the head sentence in fact imposed in TODD which was 14\ years.

The second sentence imposed in TODD added six and

a half years to the original sentence, whereas in

the case under appeal the second sentence added

five and a half years to the original sentence.

(Continued on page 18)

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DEANE J:  What would you say the judge should do if he

were to say in this case, "Now, applying the

principle of totality" - or whatever you call

it - "if I could, the appropriate thing to

do following the Victorian lead would be to

impose a sentence of eight years, but taking

account that this brings in an interstate

element, make five of those concurrent, leaving

a result where I add three years for this

third to the 10 in Victoria." Well now, if

he were to take that approach, should he say,

should he say, "No, eight years is the appropriate sentence for this crime; since I can't make it concurrent, too bad."?

"Well, since I can't make a concurrent sentence, years accordingly.", or

MR NASE:  Can I say initially that I do not understand

Your Honour's assumption that a concurrent

sentence could not be imposed in Queensland?

Unless otherwise specified, any sentence imposed

in Queensland is concurrent with any other

sentence he is then serving.

DEANE J: Except that this man had effectively served

his sentence, except in the theoretical sense

that a man is still serving his sentence after

he is released.

MR NASE: Well, the principle that has been applied in

State Courts of Criminal Appeal is that stated

in TODD, that the sentencerhas regard to, or

takes into account, the sentence already served

in the other State and in some manner adjusts

the sentence that he then imposes.

DEANE J:  So, if you cannot make it concurrent, you reduce

the head sentence to what would be appropriate

as an effective sentence if you could make it

concurrent?

MR NASE:  I am not sure that I am entirely understanding

Your Honour's questions, I must confess, the

fault being mine.

DEANE J: Well, let us take it back:  I mean, here the

reason why this man did not come before a

Queensland court years ago is that he was

held in a Victorian gaol.

MR NASE:  Yes.

DEANE J: Presume he had come before the Queensland CJUrt

the day after he had been sentenced in Victoria,

and presume that the Queensland CJUrt could not

impose a concurrent sentP.nce, for some reason,

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such as here, that he had served it, but think

of some other reason.	Now, on that basis,
what should it do?

MR NASE: Well, applying the principles recognized in

State Courts of Criminal Appeal, he imposes

a sentence that takes into account the other

sentence of imprisonment, whatever it may

happen to be, that he has been sentenced in

the other State.

DEANE J:	I will stop interrupting in a minute, but I
will just ask you this last thing:  assume
against yourself that one does not treat
an effective sentence of 10 years which
keeps a man in gaol for seven and a half years
as an effective sentence of seven and a half
years, and say that here the man had served the whole of the 10-year period. In other
words, he got no remission; he had hit a warder
on the nose for something.  Now, having served
those 10 years, he then comes before the
Queensland court which cannot impose a
concurrent sentence.  Does the court say,
'Looking at what happened in Victoria, eight years,
eight years, the appropriate head sentence for the
third crime is eight years.", or, does the court
say, "No, if this had been in Victoria, or looked
as at a whole, it would have been eight years; eight years, six concurrent; eight years, five concurrent."?

( Continued on page 20 )

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MR NASE:	I would expect that, applying the principles,
the court would impose a signficantly lower head
sentence.
DEANE J:	What, three or four years?
MR NASE:	To take into account the fact that he had served
10 years.
DEANE J:	So the critical thing here -
MR NASE:	Whatever the figure may be.
DEANE J:	The critical thing here is that while he was sentenced to an effective 10 years, by remissions,
good behaviour or what have you, he got out after seven and a half years?
MR NASE:	The critical fact here is to look at the overall sentence imposed of 15\ years, I would submit,
giving effect to those principles; that one
has regard to his overall criminal conduct in
fixing the second sentence.
DEANE J:	I follow.  I would just add one thing and that
is: does not that have the problem that Queensland
his Victorian remissions?  is saying, "You give nau8ht to a prisoner for
MR NASE:	No, the principle says that you take into account
any period of imprisonment that he served in
the other State or States.
DEANE J:	You have missed my question.  What you are saying
is that you give naught for his remissions in
Vic tori a because you treat the two and a half years that
he has been excused serving in prison in Victoria
as an additional period which he is to served
under your Queensland sentence because you treat
that as covered by the principle of a concurrent
sentence?
MR NASE:	If I can answer it in this way: under the principles
accepted by full Courts of Criminal Appeal, the
same principle applies to the non-parole period
or the recommendation and, in fact, there seems to be a wider scope for adjusting that to allow
for the uncertainty that he may have experienced
in waiting to be sentenced in the second jurisdiction
and any rehabilitation that may be discerned
while serving the first sentence of imprisonment.
I do not know whether I have answered Your Honour's
question.
DEANE J:	You have been very helpful, Mr Nase, thank you.

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MR NASE: If I could go to my prepared submissions as quickly

as I can. Turning to the outline of submissions,

if I can elaborate paragraph 2 by submitting

that it can be seen both counsel before the

sentencing judge encouraged him to apply JENKYNS

and STRINGFELLOW, the Queensland cases, and TODD.

Now that appears at page 4, at about line 16,

where we have Mr Reed, who appeared for the applicant

below saying:

In my submission - and obviously in my
learned friend's submission - it is one
of those cases that clearly falls within
that class of case that has been dealt with

in STRINGFELLOW and JENKYNS.

HIS HONOUR:	And TODD's case.
MR REED:	And TODD's case -

too.

So His Honour was encouraged by both counsel

to apply those recognized principles.

Perhaps the next relevant document is the

notice of appeal in which we see no sign of concern

with principle, the sole ground of appeal being

stated at page 20 of the application book:

That in all the circumstances the sentence

is manifestly excessive.

(Continued on page 22)

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MR NASE· (continuing):  And finally, of course, before the

Court of Criminal Appeal, no attempt was made

to argue the approach of the Court of Criminal

Appeal of Queensland was wrong and different

from the approach of Courts of Criminal Appeal

elsewhere. Indeed, I understood Mr McMillan
to concede during argument to this Court that

the Court of Criminal Appeal, and indeed the

sentencing judge, stated the relevant principles

correctly but the complaint was made that he

somehow misapplied those principles by imposing

a sentence that was too long.

I do not know whether Your Honours have

copies of JENKYNS but, in any event, I have prepared

copies of those - - -

WILSON J:	Yes, I have JENKYNS.
MR NASE:	There d9es not seem to have been any attempt
to submit seriously that the Queensland court
in JENKYNS applied the principles first stated in New South Wales in TODD.
WILSON J:	Do you say they did not or they did?
MR NASE:	There does not seem to have been any attempt
to argue before Your Honour that there is some difference between what was said in JENKYNS and
TODD so I do not know that it is necessary for
me to refer in detail to what was said in JENKYNS.
One would note, in JENKYNS, that the second sentence
imposed was one that was entirely concurrent -
using my language - with the first sentence imposed; the effective overall head sentence in that case being 14 years.
WILSON J:	He was only 18-years of age.
MR NASE:	He was 18 years of age and there were strong
features, in his case  suggested. the court could
extend leniency to him in imposing the second
sentence.  It was said that he had successfully
rehabilitated himself, at page 2, line 30, and that he was a trustee prisoner in New South Wales
when serving the first sentence.  Those circumstances
proved to be very persuasive, both in the eyes
of the sentencing judge and the Court of Criminal
Appeal which, in fact, ordered him to serve a
period of only nine months before being eligible
for release on parole in Queensland.

If I could go to TODD simply to draw a comparison

with that case and the sentences imposed in the
present case - I understand Your Honours have

copies of TODD?

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TODD was sentenced in Queensland on

4 December 1974 to a sentence of eight years'

imprisonment and a recommendation he be eligible

for release on parole after serving three years

was also added to the sentence.

(Continued on page 24)

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MR NASE (continuing):  He had committed offences both in

New South Wales and Queensland. On 18 May 1979,

he was sentenced in New South Wales and he was

then sentenced to 10 years' imprisonment and

a non-parole period of four years was specified

to run from 18 May 1983. So that his total

effective period of imprisonment, looking at the head sentence, was one that commenced on

1 December 1974 in Queensland and concluded in

New South Wales on 18 May 1989; that is, a

sentence of 14% years and the total periods of

non-parole, if I may use that term, under both

sentences amounted to eight and a half years.

The court in TODD interfered with the sentence only in so far as the non-parole period specified

in New South Wales was concerned to reduce it from

approximately one of three years to one of one and

a half years, the court's intention being that he

serve slightly under seven years in custody in all.

That is stated at page 521.

Now, Todd was a man of 28 years of age. He had

substantially no previous convictions. It was said

that he was intelligent. He had undertaken a tertiary

degree course at a university while serving his

sentence in Queensland. He came from what was

described as a stable and reputable family background.

He had a favourable probation report from Queensland and it was said there was every reason to believe he would not re-offend. It was expected that when he

was released he would be deported to England where

he would be accepted by his family. That does

contrast with the present applicant who is a man

of 37 years of age with a very substantial criminal

history who committed the offence of robbery which

is a serious offence and committed it when armed and

in company which makes it a very serious offence

and committed it, 'it''being armed robbery, a very

prevalent offence also. That offence, when committed

by an offender with a bad criminal history and by a

man who, on his criminal history, has repeatedly

committed serious offences when released, may well

attract a lengthy custodial sentence and, in this

case, the applicant did attract a stern sentence
but, in my submission, sentences of that length
could not properly be described as manifestly

excessive when committed by the more professional

and repetitive offender.

So, in my submission, in so far as there is

a complaint about the period of three years that

was specified in Queensland, some of which, of
course, would be concurrent with the effective 10
year sentence in New South Wales, but could not be

said that there has, in terms of LOWE's case, been

any gross violation of sentencing principle and that

really concludes my prepared submissions.

C2Tl6/l/SH	24	7/9/88
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WILSON J: Yes. Mr Nase, in the discussion that

Justice Deane had with you, he gave an example and I understood you to agree that you would

expect the effect of what has been called the

totality principle and, in effect, presumably

the principle in TODD, that everybody seems to

agree is the right principle, should have an

effect not only on the minimum term imposed by

the later court but also on the head sentence

imposed by that court.

MR NASE:  Yes.

WILSON J: Is it your submission that that is what the trial

judge did or did he do what the Crown counsel

invited him to do which he does not appear to

reflect that approach.

(Continued on page 26)

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MR NASE:  What was said in TODD is not that the judge should

try to put together an aggregate sentence

considered with the first sentence imposed, but

reflects the total criminal conduct, but that he should

take into account the earlier periods of imprisonment

imposed.

WILSON J:	In imposing a head sentence?
MR NASE:	Yes, in imposing a head sentence.
WILSON J:	Yes.
MR NASE:	In my submission, the sentencing judge in this case did exactly that in the remarks that were the subject of criticism.
WILSON J:	Have you noticed on page 3 the Crown's submission?

It may be all right, I do not know, I would just like you to comment on it - line 44 or so.

In this particular case the Crown would submit

that Your Honour impose a sentence as a heavy

head sentence signifying the way that the

Courts and community treat these types of
offences -

and then he goes on -

due to the fact that the man has now been

in custory for eight years -

and been very helpful, the non-parole period

should be, in effect, shortened.

MR NASE:	Yes.
WILSON J:	That appears to be out of accord, is it,with the

principles?

MR NASE:  That may not directly correspond with what was

said in TODD and, indeed, in the Queensland cases.

I suppose it depends what emphasis one places - - -

WILSON J:  And what would seem to be the appropriate effect

to be given; in other words, not to simply say

you can load a head sentence judged independently	of the earlier offences for which he is being
sentenced and allow the totality principle to be
applied to the minimum term. That would not be
right?

MR NASE:	Well, His Honour did not do that in this case,
in my submission?

WILSON J:	No.	You say he did not?
C2Tl7/l/MB	26	7/9/88
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MR NASE:	Yes.
WILSON J:	Is that what the Crown was inviting him to do?
MR NASE:	Well, I am not quite sure what he was being invited

to do in those words:

the Crown would submit that Your Honour

impose a sentence as a heavy head sentence.

He does seem to be being encouraged there to perhaps depart from the line of authority referred to in

this Court.

WILSON J:  But you would come back, in any event, to what

Hr Justice Matthews said?

MR NASE:	To what the sentencing judge said, yes.
DAWSON J:	Can I just make sure I have the mathematics right?

Is it the fact that the most that the applicant

could possibly serve, under all of the sentences,

is 15\ years with a minimum of 10\ years?

MR NASE:  Yes, those are my figures.

WILSON J:  Thank you, Mr Nase. Mr McMillan.

MR McMILLAN:	I have no further submissions, Your Honour.
WILSON J:	The Court will retire for a moment to consider

what it should do in this matter.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

WILSON J:  The Court will consider its decision in this

matter.

AT 11.24 AM THE MATTER WAS ADJOURNED SINE DIE

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