Pearn & Anor v The Queen - [1993] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A32 of 1992
B e t w e e n -

MALCOLM FEARN and STEPHEN JOHN

FULLER

Applicants

and
THE QUEEN

Respondent

Application for special leave
to appeal

DEANE J

DAWSON J

TOOHEY J

Fearn

12/3/93

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 1993, AT 3.21 PM

MS C.M. BRANSON, QC:

May it please the Court, I appear, in

lieu of MR M. DAVID, OC, with MR S.C. EY, for the
applicants. ·(instructed by Mangan Ey and
Associates) .

MR P.J.L. ROFE, QC:

I appear, with MR D.R.L. WHITTLE, for

the respondent. (instructed by P.J.L. ROFE QC,
Director of Public Prosecutions (South Australia))

DEANE J:

Thank you, Ms Branson.

MS BRANSON: If the Court pleases, the applicants contend

that in this case, there has been a gross violation
of the principles which ought to govern discretion
in imposing sentence. The violation of principle,
it is contended, is seen in the disparity between
the sentences imposed on the applicants, as
accessories after the fact, and the sentence
imposed-on one Holmes, the only principal offender
charged.-
It is contended that this disparity is not

adequately explained by Holmes' plea of guilty, and
his co-operation with the police, which is the
factors relied on in the Court of Criminal Appeal,
as can be seen at pages 20 and 21 of the
application book.
The circumstances in this case, that is, the circumstances surrounding Holmes, were, it is
submitted, not of the type that were considered by
this Court in Malvaso, a 1989 decision reported in
168 CLR 227. The Court will remember that Malvaso
was a civilian member of the public, whose co-
operation with the police led to the conviction of

the head of the South Australian Drug Squad. It is
suggested that it is also not co-operation of the
character considered by Justice Wells of the

Supreme Court of South Australia, in the case of
Golding, a 1980 decision relied on by my friends, reported in 3 A Crim R 26. That was a case of a
long time and valuable informer to the police,
whose life was thought to be in danger if he was
subjected to a long sentence, and it is suggested
that it is not co-operation of the character
considered by the Court of Criminal Appeal of
Victoria in Perrier's case, another case relied on
by my friends, a 1990 decision reported in
59 A Crim R 164. That was a case of a relatively
minor player in the drug scene, a courier, whose
evidence was of assistance in convicting a
principal trafficker.
In contradistinction to those types of cases

the applicants in this case, and the principal
offender, Holmes, were colleagues. There was no

Fearn

12/3/93

suggestion of Holmes identifying any mastermind

behind organized crime. He rather, on the
evidence, was the initiator of the criminal conduct

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearn & Anor v The Queen

Details

AGLC: Pearn & Anor v The Queen [1993] HCATrans 68
Case: [1993] HCATrans 68
Decision Date

CaseChat Overview and Summary

Malcolm Pearn and Stephen John (the applicants) sought special leave to appeal to the High Court of Australia against sentences imposed upon them as accessories after the fact. The applicants contended that the sentences they received were disproportionately severe when compared to the sentence imposed on the principal offender, Holmes. They argued that this disparity constituted a gross violation of the principles governing the imposition of sentence.

The central legal issue before the High Court was whether the disparity between the sentences imposed on the applicants and the sentence imposed on Holmes was adequately explained by Holmes' plea of guilty and co-operation with the police. The applicants argued that the nature of Holmes' co-operation was not of the kind considered in previous High Court decisions such as *Malvaso*, nor was it comparable to the informant-type co-operation seen in cases like *Golding* or *Perrier*. They submitted that Holmes, along with his colleague Phillips, was an instigator of the criminal conduct, not a minor player whose co-operation was exceptional.

The applicants' submission was that to avoid offending the principles of sentencing disparity, the sentences imposed on them, as accessories, had to be less than that imposed on the principal offender. They argued that the sentences they received, which were approximately two and a half times greater than Holmes' sentence, were therefore unjustifiable. The applicants contended that the circumstances of Holmes' co-operation did not warrant such a significant difference in sentencing outcomes, particularly given that Holmes and Phillips were the initiators of the criminal enterprise.

Orders