Pasinis v The Queen

[2015] HCATrans 118

[2015] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M55 of 2014

B e t w e e n -

NICHOLAS PASINIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 11.31 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR D.D. GURVICH, for the applicant in this matter.  (instructed by Victor C Andreou Barrister & Solicitor)

MR T. GYORFFY, QC:   If it please the Court, I appear for the respondent.  (instructed by the Solicitor for Public Prosecutions (Vic))

HAYNE J:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, the ground of appeal in the draft notice is at application book 68 and reads:

The Court of Appeal erred in finding that because the applicant was a serious offender the totality principle had a limited operation -

In our submission, the totality principle is to be applied in the sentencing of all offenders, be they classified as serious or otherwise.  It is also to be given full measure in all cases, whether the presumption be for concurrency or for cumulation of sentences.  It is a fundamental principle of sentencing that a just and appropriate sentence be passed on all offenders.

HAYNE J:   According to law.

MR TEHAN:   Indeed.

HAYNE J:   Yes.

MR TEHAN:   That principle applies, of course, to both the head term and the non‑parole period.  Your Honours, could we take your Honours through a statutory flow of legislation that applies or applied to the present case.  I have handed ‑ ‑ ‑

HAYNE J:   With a view to demonstrating what?  We have your piece of paper, Mr Tehan, but what is our end product?

MR TEHAN:   It is simply the background - the legislative provisions which I take that the Court are well familiar with.

HAYNE J:   Have a disturbing familiarity, can I say, Mr Tehan.

MR TEHAN:   Yes.  Well, anyway, they are set out there in that document, your Honours.  The approach of the sentencing judge to the matter is at application book 35 and 36 at paragraph 45 of the sentence:

Intentionally cause serious injuries is a serious violent offence and you qualify as a serious violent offender and fall to be so sentenced on the imposition of prison sentences.  Pursuant to s. 6D of the Sentencing Act, I will regard the protection of the community as a principal purpose for which the sentence is imposed.  I have not been asked to and will not impose a disproportionate sentence to achieve this purpose.  I will direct that the sentence on Count 2 be cumulative in part with Charge 1.  In my view the totality principle, though relevant to my sentence as I have indicated, should not undermine these provisions and must therefore be limited somewhat once the sentence is regulated by these sections and the policy inherent in them.

HAYNE J:   Now, at the end of the day, what is your complaint about what is said there?

MR TEHAN:   That the totality principle was given limited operation.  There is nothing in the legislation which says that the totality principle should have limited operation in the case of serious offenders or in the case of cumulation or circumstances where there is accumulation of sentencing. 

NETTLE J:   Depends on what is meant by limited operation.  If it just means that as a result of the presumption that the sentences are aggregated, the effect of totality is less than it would be in other circumstances.  It is dead right, is it not?

MR TEHAN:   Not so, your Honour.

NETTLE J:   Not so?

MR TEHAN:   No, not so.  It may well be.  It may well be that a person who is a serious offender or falls to have a sentence cumulated - passed upon him, finishes up with a higher sentence as against a person to whom those provisions do not apply.  But that is not by virtue of any amelioration in the totality principle.  That is by virtue of application of instinctive synthesis to the objective gravity of the offending, having regard to the provisions that we have identified.

HAYNE J:   But in the end, Mr Tehan, yes, we read what the sentence says, we read what the Court of Appeal says.  Is not the essential starting point, either expressed or implied in your argument, one, that eight with a six is just too much for this offending?

MR TEHAN:   Well, no, our point really, when it comes down to it, is the very point that was a sleeper, so to speak, in R H McL - and if I could take the Court to where the Court of Appeal deal with that matter.  They deal with it at application book 59 and they set out dicta of Justices McHugh, Gummow and your Honour Justice Hayne and there are two critical parts to that that I want to refer to.  Firstly, at line 4:

Given the terms of s 16(3A) –

which, of course, was the predecessor to the now section 6E -

the scope for applying the totality principle must be more limited than in cases not falling within that section.

Now, that has been interpreted as meaning that the totality principle is limited in cases of serious offenders or in circumstances where there is a presumption for cumulation and that is wrong and only this Court can correct it.  That is why we are here. Now, the second ‑ ‑ ‑

HAYNE J:   But do read on, do read on.

MR TEHAN:   Sorry, yes.  I will.

HAYNE J:   I have.

MR TEHAN:   Right, well, the part that I wanted to refer to in particular, your Honour, is this:

Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book. 

NETTLE J:   You missed the best part, which is the preceding sentence – “But the object”.

MR TEHAN:   The section gives the judge a discretion:

But the object of the section would be compromised and probably defeated –

Yes –

in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion.

NETTLE J:   Well, that is what they said below in this case.

MR TEHAN:   Exactly, but the totality ‑ ‑ ‑

HAYNE J:   There are perils to being a sentencing judge in the intermediate court, but I think you are wanting to add a new one, are you not, Mr Tehan?

MR TEHAN:   Not at all, your Honour. 

HAYNE J:   No?

MR TEHAN:   We seek that the matter be simplified, if anything, and indeed the very matter that was not litigated in R H McL falls, we say, that the issue of the relationship between section 6E and the totality principle will be the issue on the appeal in this case if special leave be granted.  Now, in our submission, where presumption of accumulation applies, as it does in all States and Territories in certain circumstances, the legislatures have indicated that offenders subject to such a presumption are to be treated differently from other offenders; as much was said in R H McL.

Due regard should be paid to this policy.  However, in our respectful submission, adherence to that policy should not compromise or limit the operation of the totality principle.  A serious offender is just as entitled as any other offender to have the full measure of a just and appropriate sentence - to quote the words from this Court’s judgment in Mill v The Queen - passed upon him and a practice has grown up at least in this State, since the dicta in R H McL, which effectively states that the totality principle is to be limited in cases of serious offenders. 

HAYNE J:   Now, the footing for that is that the relevant statutory provisions are, as said in those joint reasons, plainly intended to have more than a formal effect.  What is the effect that you give to the relevant statutory provisions unless there is some drawing back from unfettered application of the totality principle?

MR TEHAN:   Your Honour, the effect that you give to them is that you proceed on the basis that there is a presumption of cumulation and you proceed on the basis that one of the purposes of sentencing, that is protection of the community, is the most important sentencing consideration.  But those two matters, with the greatest of respect, say nothing about totality. 

HAYNE J:   But that is salami slicing the task, Mr Tehan.

MR TEHAN:   No.

HAYNE J:   If the presumption is to accumulate ‑ ‑ ‑

MR TEHAN:   Yes.

HAYNE J:   ‑ ‑ ‑ well, when does one vary, one depart from the “add it all together”.  You depart from it bearing in mind that what you are doing is to protect the community.

MR TEHAN:   Well, application at the instinctive synthesis vary, if you like, takes into account all methods, including the objective gravity of the offence ‑ ‑ ‑

HAYNE J:   Which brings me back to you have to say that eight with a six is too much for this offending.

MR TEHAN:   What we say is this:  that this is the perfect vehicle to test the proposition that we contend for, the relationship between the principle of totality and section 6E.  In this State, the authorities which have said, look, there is a tension there, there are no real authorities upon it, and yet sentencing courts and our Court of Appeal continues to apply this dicta in R H McL as if it were almost a rule that totality is not to have its full measure in a case of a serious offender.

Now, there is simply nothing, as we submit, in the legislative provisions to which we have referred, which limits the operation of the totality principle in cases where there is a presumption for cumulation of sentences and, indeed, absent clear language, these provisions should not be construed as facilitating the limitation of such a fundamental common law principle of sentencing as the principle of totality.

As we say, there are provisions in other States and Territories which permit cumulation of sentences in certain circumstances so the issue which we have identified, which arises in this case, is of general importance to the administration of criminal justice in the Commonwealth. 

Finally, this case is a good vehicle for ventilating the issue because at the time of sentence the applicant had been continuously in custody since March 2010.  He had served the whole of the sentence imposed by Judge Douglas on the conspiracy to pervert the course of justice charge.  In effect, he was serving a sentence of 10 and a half years with a non‑period parole of eight and a half years for the whole of his criminality arising out of this matter, being two injury offences, two serious injury offences and the conspiracy.  Now, in our respectful submission, for the reasons we have identified, special leave should be granted.  May it please the Court.

HAYNE J:   Thank you, Mr Tehan.  We will not trouble you, Mr Gyorffy.

We see no reason to doubt the correctness of the decision of the Court of Appeal in this matter.  Special leave to appeal is refused.

AT 11.45 AM THE MATTER WAS CONCLUDED