Mustafa v The Queen
[2002] HCATrans 201
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P33 of 2001
B e t w e e n -
ABIB MUSTAFA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 31 MAY 2002, AT 9.31 AM
Copyright in the High Court of Australia
MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Laurie Levy & Associates)
MR D.J. BUGG, QC: If the Court pleases, I appear with my learned friend, MR H.G. DEMBO, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))
GUMMOW J: We might hear from you first, Mr Bugg, I think. Something seems to have gone wrong here.
KIRBY J: You are smiling. You appeared to anticipate this.
MR BUGG: It seems to be the order of the day for me these days, your Honours.
KIRBY J: Well, you did concede in the Court of Criminal Appeal that the head sentence should be changed and now you are fighting against that. It does not seem to be consistent. You are well known for your consistency even.
MR BUGG: Well, your Honour, I hope in the 20 minutes allotted to try and convince you that there is some consistency about that approach. The change to the head sentence would result also, of course, in an automatic adjustment to the non‑parole period. That was effected in the way in which the court dealt with the matter. I accept what your Honour ‑ ‑ ‑
HAYNE J: Why would it be automatic? Is non‑parole period statutorily fixed to the head?
MR BUGG: No, it is not statutorily affixed but that is certainly the basis upon which the concession was made, that the head sentence and, therefore, the non‑parole period should ultimately be adjusted. Now, what the court did was adjust the non‑parole period, which affected the actual time to be served ‑ ‑ ‑
HAYNE J: But courts have to sentence people on the basis that the accused may spend every last day of the head sentence in gaol. Now, if you accept that the non‑parole period should be adjusted, why should the head sentence not have been adjusted?
MR BUGG: In this particular instance the court was confronted with a range of sentences which had been imposed on a number people involved in this transaction. You start working upwards, without going through the minor players. Diefenbach, the person who was regarded as the major courier, had been sentenced to 12 years, to serve 6. On appeal that had been adjusted to 10 years, to serve 5. Now, the table that the applicant has usefully included in the application book at page 164 sets that out for your Honours.
What the court was confronted with was a finding by the sentencing judge which was not, in my submission, confronted on appeal. That was that the collectors, as they became called in this particular transaction were at a higher level of culpability than the couriers. Therefore, Mustafa was at a higher level of culpability than Diefenbach.
KIRBY J: We understand that, but you still have the fact that you conceded before the Court of Criminal Appeal that the head sentence had to be adjusted and now before us you do not concede that. Now, that is a change of pace and it is not consistent with what Justice Hayne put to you, that he may serve the whole sentence. I leave aside the way in which this happened, with the Court of Criminal Appeal not signalling clearly that they had considered all of the grounds of appeal that were put before them.
MR BUGG: I accept, your Honours, that on the face of it that appears to be a problem, however, the correction by the court that all grounds had been considered, it was merely an oversight.
HAYNE J: But whether or not that is right, first, the Full Court detects error in the sentencing of the sentencing judge, do they not?
MR BUGG: They detect error on the grounds of disparity.
HAYNE J: And, indeed, the respondent in the Court of Criminal Appeal conceded there was error below.
MR BUGG: Yes.
HAYNE J: Therefore, the Full Court had to resentence, is that right?
MR BUGG: Yes.
HAYNE J: Having to resentence, there is no explanation in their reasons for why they come upon the same head sentence as had been passed below?
MR BUGG: There is to the extent that they conclude that Mustafa was slightly less culpable than Punevski and Ruvinovski.
HAYNE J: But they do not explicitly direct attention to why, in resentencing, in a case where the acknowledged error is lack of parity, they fix a head sentence identical to that fixed at first instance.
MR BUGG: Yes, because they detected the lack of parity in the non‑parole period and not the head sentence.
HAYNE J: Well, is that not their error and does that not reveal error in the Full Court in resentencing? Parity is to be applied in sentencing. Parity is not simply a principle to be applied in fixing non‑parole periods. I know all that the accused wants to know as he is taken down to the cells is, “How long on the bottom?”, but sentencing is more than that.
MR BUGG: I accept that, your Honour, and what the court has looked at is the totality of the sentence and said that there is parity on the head sentence. The principle of parity has not been offended by the sentencing judge in fixing a head sentence of 12 years. However, the principle of parity has been offended by having a non‑parole period of 7 years which is, in fact, 4 months more than the non‑parole period of those offenders who had a head sentence fixed at 13 years.
KIRBY J: It just does not hang together. First, you concede in the Court of Criminal Appeal that the head sentence has to be varied – or, first, as Justice Hayne has pointed out, the Court of Criminal Appeal is resentencing, so they have to get it right for themselves. Secondly, you make a concession there, which I regard as a proper concession. Thirdly, the Court of Criminal Appeal in resentencing does not appear to have explicitly turned its attention to the very significant allowance that has to be made for co‑operation in the head sentence.
MR BUGG: Well, co‑operation was a factor which was challenged before the sentencing judge and ‑ ‑ ‑
KIRBY J: Well, plea of guilty then.
MR BUGG: The plea of guilty then, yes.
KIRBY J: The early plea of guilty. Leave aside co‑operation.
MR BUGG: Yes.
KIRBY J: We had a case recently about the fast‑track system in Western Australia and in Western Australia it is a very substantial – it can get up to 35 per cent. So that on the face of the record and given that some offenders do reoffend within the period of the non‑parole and then have to serve the head sentence, it is not a theoretical question at all.
MR BUGG: Your Honours, the concession before the Court of Criminal Appeal as to the head sentence and non‑parole period was a concession that both the head sentence and non‑parole period needed adjustment to effect parity.
KIRBY J: Exactly. A very proper concession, which the Court of Criminal Appeal apparently ignored, or they certainly did not attend to it.
MR BUGG: Well, the Court of Criminal Appeal quite often ignores concessions and submissions made by the prosecution but ‑ ‑ ‑
KIRBY J: Submissions, yes; concessions, less regularly.
MR BUGG: Well, Justice McHugh had something to say about that actually in ‑ ‑ ‑
KIRBY J: I am not saying that they are bound by your concession, but one would expect if they disagreed with it that they would say that you were wrong to make the concession. It just does not hang together, adjusting the non‑parole period without adjusting the head sentence in this kind of case where the challenge was to parity. It is just not logical, I am afraid.
MR BUGG: Well, your Honour, can I take you to the table at the page 164 and your Honour will see that Ruvinovski and Punevski, who were sentenced to 13 years with an 8 year non‑parole period, on appeal the 13‑year term was unaffected by the appeal but the non‑parole period was reduced by 16 months.
KIRBY J: Convicted after a trial.
MR BUGG: Yes. However, that was the process of readjustment of the sentence.
HAYNE J: Yes, readjustment – fiddling. Yes. Courts of Criminal Appeal are not there to fiddle with sentences. Courts of Criminal Appeal are there to correct error. Yes.
MR BUGG: Well, the error which the Court of Criminal Appeal detected in the sentences of Punevski and Ruvinovski was that the head sentence was appropriate but that the non‑parole period was not. Now, the proportion that that non‑parole period bore to the head sentence of those two offenders, with whom the Court of Criminal Appeal was endeavouring, on the basis of the application before it, to achieve parity, was achieved in this instance by leaving the head sentence intact and adjusting the non‑parole period.
KIRBY J: Yes, but even if you take those two, that is to say, Ruvinovski and Punevski, and if you apply to them on resentence by the Court of Criminal Appeal a deduction, say, of 25 per cent for co‑operation – leave aside everything else – and if you assume that Mustafa is in the same league as they are, collectors, you get down to a head sentence of 10 years or less, and that has not been done by the Court of Criminal Appeal. You see, those two men fought their case. They took their chances. Mustafa pleaded guilty. If we are to be serious about encouraging pleas of guilty, with the great savings of public funds and the acknowledgment of crime and so on, well, it has to be reflected in sentencing.
MR BUGG: Yes, I appreciate that. Punevski and Ruvinovski were jointly tried. The trial lasted about 11 days.
KIRBY J: Eleven days? That is a lot of public money, as you would know more than anyone. We are trying to help you here, Mr Bugg.
MR BUGG: I can see the hand outstretched but I am not quite prepared to grab it just yet, your Honour.
KIRBY J: We will continue holding out our hands.
MR BUGG: Yes, thank you, your Honour. But when you are looking at comparatives, those two offenders were not tried until some considerable time later. Their trial was on 3 June 1999 – concluded on 3 June 1999 and their sentence was backdated to 11 February 1999. Their earliest release date under that non‑parole period is 11 October 2005, which is 18 months after Mustafa’s earliest release date.
Now, to say that they took their chance and pleaded not guilty – in fact, Punevski was an applicant for special leave before this Court against his conviction and the decision of the Court of Criminal Appeal to uphold that conviction midway through last year.
KIRBY J: But the net result is that for the plea of guilty the bottom line in the case of Mr Mustafa is but 8 months short in sentencing of – now, I am concentrating for the moment on the non‑parole period. That is not 33 per cent. That is not 25 per cent. That is not even 10 per cent.
MR BUGG: No.
KIRBY J: So leave aside that question. Then you go and you look at the head sentence, which he may have to serve or may have to come back to serve, and that has not been adjusted at all.
MR BUGG: It is about 10 per cent.
KIRBY J: A very low ‑ ‑ ‑
MR BUGG: But when Punevski and Ruvinovski were on bail, they were on strict bail conditions for a considerable period of time. They were not ‑ ‑ ‑
KIRBY J: It is not quite the same as liberty.
GUMMOW J: Anyhow, the reasoning processes of the Court of Criminal Appeal on this point are simply not exposed.
HAYNE J: Or if they are, they are wrong. Can I take you to paragraph 25 at page 143 of the application book.
MR BUGG: I do have trouble with paragraph 25. Look, I accept that but, at the end of the day, what is the effect of the granting of special leave? Does it achieve any comfort greater than that which the applicant now has, with respect? It may constitute a tinkering ‑ ‑ ‑
HAYNE J: No. Courts sentencing fixing head sentences are not engaging in some mindless piece of ritual. Fixing a head sentence is important.
MR BUGG: If the head sentence, left unaffected by the appeal to the Court of Criminal Appeal, was adjusted to say parity must be taken into account when one looks at Diefenbach, whose head sentence for a lesser level of culpability was adjusted to 10 years, that is, from 12 down to 10. So we are dealing with someone who has been given a head sentence of 12 years.
HAYNE J: But the message we send is, in resentencing, Courts of Criminal Appeal have to resentence as a whole, not simply play around with the non‑parole period. Now, can I put this to you, Mr Bugg. The points that arise in this matter are very confined, are they not?
MR BUGG: They are.
HAYNE J: What more would you say on an appeal than you have been permitted to say in the course of this application?
KIRBY J: Encouraged to say.
MR BUGG: Just a little more, your Honours, but if I could just say this in terms of a Court of Criminal Appeal looking at that head sentence and looking at Diefenbach and Punevski has to say, in terms of the principle of parity, we are talking about is there a manifest excessiveness.
HAYNE J: No. Specific error has occurred. There is specific error at trial. The Court of Criminal Appeal is resentencing. Is error detectable in what the Court of Criminal Appeal has said? You do not attempt to justify what appears in paragraph 25, which is the core of the Full Court’s reasoning. Error is detected. Back it goes. What is wrong with that analysis of it?
MR BUGG: The error ‑ in terms of the grant of special leave, there may be an adjustment of the head sentence to avoid a justifiable sense of grievance on the part of Diefenbach of one year downwards, one year downwards which is 8 per cent of the head sentence. Now, in terms of that particular percentage and identifying it as an error, if the court has looked at it and said, “No, there would be no justifiable sense of grievance in that 12‑year head term, we will leave that, but there should be and we identify the prospect of such a sense of grievance in the non‑parole term, therefore, we adjust that”, the Court has looked at that 12‑year term.
HAYNE J: And they have said that:
12 years correctly reflects his role and position –
and in the very next line:
In my view, however, given his lesser role –
The two simply cannot stand. Unless you can explain to me how they can stand, I just do not see it.
KIRBY J: Did Ms Diefenbach plead guilty or not guilty?
MR BUGG: Ms Diefenbach did. She pleaded guilty and there is some mention of that, your Honours, at page 140 at paragraph 17. Your Honours will see in the last portion of that paragraph:
Significantly, although she organised the other three couriers, a charge against her for being knowingly concerned in the importation of the quantities brought in by the other couriers was withdrawn.
Her plea of guilty was entered when those other matters, that is, knowingly concerned in the importation by the other couriers, was withdrawn and the court, obviously looking at the role of Diefenbach and the 10‑year sentence imposed upon her, gave consideration to that particular fact. Therefore, she was before the court charged and convicted with only one count and that was regarded as a lesser role.
KIRBY J: I understand that point, but you would have to consider Ms Diefenbach as not just an ordinary courier. She is a sort of chief courier, in so far as these labels of any use, and she did not plead guilty immediately. There was apparently some bargaining that led to the withdrawal of the other count. So that you have a collector who pleads guilty immediately with a head sentence of 12 years, which is just marginally lower than that of the people who fought their case over two weeks.
MR BUGG: It was not a situation not unlike Cameron as far as Diefenbach was concerned. Once the indictment was adjusted to meet that situation, the plea was entered. Now, you only have to look at what sentences were imposed on the other couriers. They are referred to both in the schedule and in the following passages from the judgment of the Court of Criminal Appeal. But, your Honours, the court has considered, in my submission, the appropriateness of that head sentence and concluded that it reflected an appropriate sentence for the role played by the applicant in this transaction in its relationship to the more serious collectors and ‑ ‑ ‑
KIRBY J: There is the slightly disquieting aspect which I feel disquieted over and that is the question of the alteration of the reasons. I mean, I am not suggesting that anything improper has happened but I just wonder if enough attention was focused on the issue of the early plea of guilty which in Western Australia and in every other part of the Commonwealth attracts significant provision.
MR BUGG: I can only be guided by what the court said, that it had given attention to all grounds of appeal.
KIRBY J: The whole case just – it could benefit, I think, from having another look at it in the Court of Criminal Appeal. The essential question, if I can say so respectfully, that you have to ask is: do you want to argue it twice before us, trying to dissuade the Full Court, or, as it were, put all your arguments to the Court of Criminal Appeal?
MR BUGG: No. Your Honours, I can see the direction that your Honours are coming from but the situation really that concerned me also about this matter, occurring, as it did, pre‑Cameron – I note that my learned friend had included Cameron in a subsequent list of authorities – I was concerned that it was not an issue which we had taken either before the sentencing judge or before the Court of Criminal Appeal and from that – I can see my time is up.
GUMMOW J: Just continue, Mr Bugg.
MR BUGG: But it would certainly be my submission, as far as the agitation of any appeal should special leave be granted, that Cameron is not an issue for contemplation of the Court because it is not an appropriate vehicle, in my submission, to consider either the statutory effect or the effect of the statutory discount upon a court exercising federal jurisdiction.
KIRBY J: We would not be considering Cameron. That would be a matter for the Court of Criminal Appeal, would it not?
MR BUGG: Yes.
KIRBY J: All we would do would be to say error is demonstrated on the face of the reasoning of the Court of Criminal Appeal. We will not resentence. We are not a Court of Criminal Appeal. It has to go back for error to the Court of Criminal Appeal to resentence. That is where Cameron will be fought out. I would have thought so. I may be wrong, but that is just my immediate reaction as a matter of principle.
MR BUGG: Look, because of the position we took at sentence, we would be constrained in so far as Cameron was concerned on the reagitation of this matter before the Court of Criminal Appeal, in any event, I would have thought, out of fairness to the applicant. But I cannot take the matter any further. I concede that there is an apparent error in the penultimate paragraph of the reasoning of the learned Chief Justice in that, on the face of it, he appears to have located this applicant in a position as far as the head sentence is concerned below that of Punevski and Ruvinovski without giving consideration to the question of the plea of guilty and its effect on a head sentence.
KIRBY J: But even before Cameron that had to be done – even before Cameron.
MR BUGG: Yes, I accept that.
KIRBY J: I mean, that was part of the general law.
MR BUGG: However, the error, on the face of it, and even examined, it is an adjustment of minor proportions when one considers the bar or the low‑jump bar that is set by Diefenbach, which clearly would set the floor
below which any sentencing court could not go and above which at some level it must settle. But I cannot take the matter any further.
GUMMOW J: Now, Mr Bugg, I think we should now come squarely to the question which is: would you wish to say any more to us as to why we should not, having heard from Mr Grace, proceed to deal with both the leave application and, if we took a course on that, with the appeal?
MR BUGG: No, I would not delay this Court’s deliberation on it any longer, your Honours.
GUMMOW J: Yes, thank you, Mr Bugg. Yes, Mr Grace.
KIRBY J: You do not want to argue fully the Cameron issue here, do you?
MR GRACE: No, I do not, your Honours.
GUMMOW J: Now, you are pushing against what Sir Gerard Brennan used to call an open door.
MR GRACE: Yes.
GUMMOW J: Just bear that in mind.
MR GRACE: Yes.
HAYNE J: Do not get your fingers caught, Mr Grace.
GUMMOW J: It has been shut before today by people for whom it was being opened.
MR GRACE: Your Honours, I just wanted to make some brief points. Could I first ask your Honours to refer to the case of Siganto v The Queen 194 CLR 656 at paragraph 51 in the judgment of her Honour Justice Gaudron.
GUMMOW J: What do we get from that?
MR GRACE: Well, her Honour said this, that:
Once it is appreciated that the principle of parity in sentencing is concerned with consistency in punishment, it is apparent that all components of a sentence must be taken into account to determine whether the principle has been violated, including the maximum and minimum periods of actual incarceration. That is so whether the question is that of parity between co‑offenders or parity across the range of those convicted of the offence in question.
KIRBY J: Well, that is right on the point really.
MR GRACE: Yes, that is right on the point. When one goes to paragraph 25, and particularly the second sentence of that paragraph ‑ ‑ ‑
GUMMOW J: Yes, Mr Grace.
MR GRACE: The second sentence of paragraph 25 on page 143 of the application book closes with the remarks:
that, although the head sentence was one year less than the other two, his non‑parole period was greater –
and then the next two words are significant, in my submission –
If that were to remain –
what is his Honour the Chief Justice there referring to? We would submit he is referring to both aspects, that is, the head sentence and the non‑parole period.
If that were to remain, the applicant would have a justifiable sense of grievance. In my view the sentence of 12 years correctly reflects his role and position in relation to the importation.
Those two sentences do not sit comfortably with each other. Of course, the learned sentencing judge had found that the applicant’s plea of guilty was an important aspect in the sentencing process generally. I refer your Honours to application book 90 at lines 30 to 32. His Honour said:
I take your plea of guilty as being an important aspect in the sentencing process.
Then later, at page 94, at line 45 his Honour effectively concluded that the applicant had shown a distinct willingness to facilitate the course of justice, to use that phrase that is mentioned in Cameron, and he regarded the plea of guilty as “an extremely important factor” in that particular paragraph, which I will not read to your Honours, at the bottom of page 94. The plea, in fact, was entered at the first reasonable opportunity and it falls within the definition of that phrase as enunciated in Cameron.
These conclusions were, of course, consistent with the bases upon which a plea of guilty may be taken into account in mitigation of sentence as elucidated in Cameron. The Court of Criminal Appeal, however, has simply failed to take into account adequately or at all the mitigatory effect of the plea of guilty, given that it found that the parity ground was made out and that Mustafa’s role was found to be “slightly below” that of co‑accused collectors.
I do not need to remind your Honours of the fact that in Western Australia the discount for a plea given at the earliest reasonable opportunity is in the order of 25 to 35 per cent. The decision of the Western Australian Court of Criminal Appeal in Radebe, which is one of the authorities that my learned friend cited in his list, makes clear at paragraph 28 the following:
it is likely to be an unusual case where a sentence for a fast‑track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty.
That was a Commonwealth drug importation case.
It is instructive to refer to how the Crown put its case in the Court of Criminal Appeal. Could I take your Honours to application book 114. Perhaps I will take your Honours to the bottom of page 113. There counsel for the applicant referred to the judgment of the Court of Criminal Appeal in Ruvinovski and Punevski, the other collectors, and at line 28 counsel said this:
Finally, if I can turn to the issue of the starting point, it’s interesting to note that his Honour Anderson J at pages 20 and 32 of the supplementary appeal book talked about –
and the next word should be “relevant” rather than “irrelevant” –
relevant starting points for sentences for the sentences of Ruvinovski, Punevski and the applicant, obviously absent the applicant’s plea of guilty.
His Honour at paragraph 40 on page 32 of the supplementary appeal book, the third‑last line on the bottom of the page his Honour talks about the starting point and says this:
The learned sentencing judge did not stipulate her starting point, but her starting point of 14 years or thereabouts would not have been too high.
So we are having a reduction of the starting point from what the learned sentencing judge in the applicant’s case had specified as being 16 years. That has now come down to 14 years. From that, the personal matters and so on are taken into account. The result for Punevski and Ruvinovski is 13 years. The result for the applicant, who has a lesser role, is 12 years. It is clear there has been no reduction for the plea of guilty, in my submission.
So when one comes then on the same page to what junior counsel here today and then counsel for the respondent said before the Court of Criminal Appeal at line 30:
If I could start at the end and just confirm what my learned friend Mr Levy has said; that the crown concedes that there would be a justifiable sense of grievance on behalf of Mustafa in this case and that he should, with respect, be sentenced in parity with his co‑offenders. We don’t take issue with that at all. In fact, however, what the crown does say – and if I could refer you to the submission at page 8 of the crown’s outline of submissions, paragraph 22 –
We find paragraph 22 at page 172 of the application book and at paragraph 22.1 the respondent says:
The Applicant should be re‑sentenced in parity with his co‑offenders. Accepting for example that the Applicant’s personal circumstances would be generally no better nor no worse than the co‑offenders and without taking his plea of guilty into account he should also have received a head term of 13 years with a non‑parole period of 6 years and 8 months. However off the head term the Applicant should receive a discount for his early plea of guilty.
And so on. Now, that was before a concession or a finding ultimately that the applicant’s role was less than that of the co‑accused. Then at the same page at line 42 the same remarks are made. If I go over onto page 115, at line 10, Mr Dembo again says:
There’s again no doubt that the man was entitled to a discount for his plea of guilty and even though it wasn’t at the first available opportunity, his Honour Miller J accepted that it was very close to that and the crown accepts that as well. There wouldn’t be any differentiation between that and a fast‑track plea. The man wasn’t represented at the time and the crown didn’t oppose that.
Then, significantly, at line 32 on that very page his Honour the Chief Justice says:
It would seem on the face of it that upon his resentence his head sentence is going to be reduced and the minimum should be somewhere between Diefenbach and Punevski and Ruvinovski.
KIRBY J: Well, that is exactly my reaction to the matter.
MR GRACE: Yes.
KIRBY J: I mean, the Chief Justice’s then response was, I think, accurate but somehow between the saying and the doing something slipped out, as it is very easy to do. It is very easy for these mistakes to happen.
MR GRACE: It is and your Honour perhaps highlighted the point when your Honour referred Mr Bugg to the fact that it may have been that the court did not consider the other grounds of appeal.
KIRBY J: I only said that because that was part of your original submission to this Court, but we do not have to get into that. If it goes back to the Court of Criminal Appeal, there is no doubt that they will consider all of the matters, including the issue that you say was overlooked. It would be a rehearing and it would just be determined according to law, with the advantage of all the considerations being clearly in mind.
MR GRACE: Yes, absolutely. If I could just complete the reference to that page, Mr Dembo at line 36 says:
On behalf of the crown, I would agree with that proposition.
That proposition being the Chief Justice. Those are the matters I seek to put on behalf of the applicant.
GUMMOW J: Thank you, Mr Grace.
MR GRACE: And, of course, I rely upon my written submissions.
GUMMOW J: Yes, which we have studied. Yes, Mr Bugg.
MR BUGG: Only very briefly, your Honours. I did not seek to twist the jurisprudence of this Court at all when suggesting that a comparison of non‑parole periods was an appropriate measure for the determination of whether or not there was parity or a breach of the parity principle. I was relying, in saying so, on the joint judgment of their Honours Justices Dawson and Gaudron in Postiglione at page 302, halfway down the page, where their Honours say:
One component of each of the sentences involved in this case and one which is susceptible of easy comparison is the non‑parole period.
However, I do concede that that immediately follows a statement by their Honours saying:
the head sentence is but one component of the sentences. A proper comparison –
as your Honour Justice Hayne has said –
involves a consideration of all components.
But there an easy comparison was made by an examination of the non‑parole periods, but I accept that, on the face of it, there is a difficulty with that penultimate paragraph in the judgment of his Honour the Chief Justice. I can take the matter any further in reply.
GUMMOW J: Yes, thank you, Mr Bugg. We will take a short adjournment.
AT 10.07 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.10 AM:
GUMMOW J: On the hearing of the applicant’s appeal to the Court of Criminal Appeal of Western Australia counsel for the respondent rightly conceded that the sentence imposed on the applicant did not take sufficient account of the sentences imposed on his co‑offenders.
The Court of Criminal Appeal, accepting the correctness of the concession that had been made, resentenced the applicant but in so doing imposed the same head sentence as had been fixed by the primary judge. The Court of Criminal Appeal fixed a shorter non‑parole period than had been fixed by the primary judge. The reasons for the Court of Criminal Appeal did not identify why the same head sentence was passed as had been fixed initially and counsel for the respondent was unable to point to anything in the course of proceedings in the Court of Criminal Appeal that explained that aspect of the court’s decision. Properly, counsel for the respondent acknowledged that he could not attempt to support what was said by the Court of Criminal Appeal in the key paragraph in its reasoning.
A person awaiting sentence may show a particular interest in the minimum period that that person must spend in prison, but all elements of the sentence imposed on an offender by a court are important, not just the parole period: see Siganto v The Queen (1998) 194 CLR 656 at 670 [51] and Postiglione v The Queen (1997) 189 CLR 295 at 302.
There being no dispute that the sentence originally passed on the applicant was affected by error, it is evident that the resentencing by the Court of Criminal Appeal is affected by the same error.
Counsel for the respondent agreed that he would have nothing further to say to the Court on the hearing of the appeal were special leave to be granted. Accordingly, it is convenient to proceed immediately with the case as on the return of the appeal.
In these circumstances, there will be orders that special leave to appeal be granted. The appeal be treated as instituted, heard instanter and allowed. Paragraph 2 of the order of the Court of Criminal Appeal made on 27 June 2001 is set aside and the matter is remitted to that court.
We will now adjourn to establish the video link to Perth.
AT 10.13 AM THE MATTER WAS CONCLUDED
5
4
0