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 1 12/3/93

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 1993, AT 3.21 PM

Copyright in the High Court of Australia

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 2 12/3/93

suggestion of Holmes identifying any mastermind

behind organized crime. He rather, on the

evidence, was the initiator of the criminal conduct

that gave rise - - -

DAWSON J:  Ms Branson, what was Phillips sentenced to?

MS BRANSON: Phillips was not charged, if Your Honour

pleases, in relation to this matter.

DAWSON J:  He pleaded guilty to something, did he not?

MS BRANSON: He did, Your Honour, yes. Other offences, and

as a result of that, was not charged with this

offence.

DAWSON J: At all?

MS BRANSON:	At all, Your Honour.
DAWSON J:	What were the other offences?
MS BRANSON:	I am sorry, Your Honour?

DAWSON J: Did they arise out of this incident, the other

offences?

MS BRANSON:  No, Your Honour. They were offences similar in

character to this offence, but he was not charged

with this offence.

DAWSON J: Really?

MS BRANSON: Yes, Your Honour. If the Court pleases, in

contradistinction to the other cases, it was the
principal offender charged, Holmes, and his

partner, Phillips, who on the evidence instigated

the crime out of which all of these charges arose.

They were not minor players in somebody else's

criminal behaviour.

TOOHEY J:  Ms Branson, is it your submission that to avoid a

disparity, the sentence imposed upon the present
applicants had to be less than that imposed upon

Holmes?

MS BRANSON:	Yes, Your Honour.
TOOHEY J:	So anything that was greater would, on your

submission, offend the principles of disparity?

MS BRANSON:  That is so, Your Honour. We say anything

greater would offend. The current sentence being

approximately two and a half times greater, we say,

is a gross disparity.

Pearn 3 12/3/93

TOOHEY J: It is not just the relationship in periods of

time, is it, because it is a measure between a

non-custodial, effectively - a non-custodial sentence or a sentence that is custodial and

suspended - and a custodial sentence that was not

suspended?

MS BRANSON: That is so, Your Honour. It is a very short

sentence with a relatively high maximum, suspended,

to be contrasted with a sentence of three-fifths of

the maximum possible, not suspended. The offences

plainly were not thought to be equivalent in

seriousness by Parliament, because the principal

offence had a maximum possible penalty of eight

years. The offence with which the applicants were

charged had a maximum possible penalty only of

five, yet their penalty is nearly two and a half

times greater than that of the principal offender

and not suspended.

DAWSON J: But where is the matter of principle, Ms Branson?

One can talk about the amounts and say perhaps that

they demonstrate a misapplication of principle, but

what His Honour did in sentencing the two

applicants was to say, "Well, look, they don't fall

within the category that Holmes did." In an

institution such as the police force, it is

terribly difficult not only to punish offenders,

but even to detect them. The co-operation of

someone within the police force which is hard to

obtain is deserving of consideration in the

sentencing process. Applying that principle, he

gave what might seem to be a light sentence to

Holmes in comparison with sentences which were

given to your clients who, after all, pleaded not

guilty and did not assist. Where is the principle

involved in that that this Court could take up?

MS BRANSON:  If Your Honour pleases, we appreciate the

hurdle that we have to get over in the area of

seeking special leave to appeal on the matter of

sentence. That is why, in opening, I put the case

on the basis of a gross violation of the principles

which ought to govern discretion in imposing

sentence, and that is why I place emphasis on the

great disparity between sentences.

DAWSON J:  You could hardly really say it is a gross

violation when the sentencing judge imposed that

sentence. There has been appeal to the Court of

Criminal Appeal and now you want this Court to take it up. For 70 years this Court never granted

special leave in a sentencing case. I know it has

been a little more generous since then, but really

this is not the sort of case which attracts special

leave, is it?

Fearn 4 12/3/93

MS BRANSON: Well, if Your Honour pleases, we cannot I think

put it higher than seeking to characterize it as a

gross violation of principle in the terms discussed

in Lowe's case, (1984) 154 CLR 606, in which the

Court was of the view that a ground for the grant

of special leave was gross violation of principle.

DAWSON J:  But the Court there was called upon to deal with the principle of parity of sentencing.

MS BRANSON: That is so, Your Honour.

DAWSON J: But the principles are not in doubt in this case.

DEANE J:  And that was out of the first 70 years.

MS BRANSON: Well, if I could just draw the Court's

attention to certain passages in Lowe, in

particular in the judgment of Chief Justice Gibbs

at the Qottom of page 608 and the top of page 609,

where His Honour said:

Although it would be unwise, if not

impossible, to attempt to define exhaustively the circumstances which make a case ''special",

it is true to say, at least speaking

generally, that to warrant the grant of

special leave to appeal against a sentence

when there has been no want or excess of

jurisdiction, it must appear that the case

involves some question of law or principle of
general importance or that there has been a

gross violation of the principles which ought

to govern discretion in imposing sentence.

And it is the last portion of that passage upon

which we place reliance. Justice Mason, as he then was, at page 611, just above the middle of the page

was to the same effect, four lines into the first

full paragraph on that page, His Honour said:

The consequence is, as Gibbs C.J. observes -

and I will not reread that - and he goes on:

But I would emphasize that the discretion to

grant or refuse leave cannot be reduced to a

formula or to rigid categories and that the

Court must always make allowance for the

exceptional case of manifest injustice or

manifest public importance which may not

readily fall into one of the categories

already mentioned.

And we, of course, place stress on an "exceptional

case of manifest injustice". Your Honour

Justice Dawson spoke broadly to the same effect at

Pearn 5 12/3/93

page 621, in the middle of the page, the second

full paragraph of Your Honour's reasons.

So that is why we put this case, not so much

on broad public principle, but on gross violation
of principles and manifest injustice. It is, in

our submission, the type of case that gives rise to

a legitimate sense of grievance against the

criminal justice system and, for that reason, and

by reason of the grossness of the disparity, a

proper case for special leave to be granted. Of course, we place great emphasis on the fact that Holmes, the only of the principal whom the

authorities chose to charge with this offence, his

sentence was less than one-sixth of the maximum

sentence prescribed for the offence with which he

was charged and the sentence was suspended.

DAWSON J: But you cannot really make a comparison, can you,

in thes~ cases, because by assisting the Crown in

the manner in which he did and by pleading guilty,

Holmes took himself out of the category into which

these two applicants fall.

MS BRANSON:  If Your Honour pleases, what we would say to

that is that he did put himself into a different

category but nothing like as different as he has,

in fact, been treated in the matter of sentence.

DAWSON J:  The trial judge said, having regard to the fact

that he was a policeman, he did place himself into

a very different category by co-operating with the

prosecuting authorities.

MS BRANSON:  Yes, if Your Honour pleases, all those involved

in this matter were police officers, and that is

obviously a matter of gross aggravation so far as
they are all concerned. If Your Honour pleases, we

say that this case does not begin to be case, for

example like Perrier, where you have the minor

courier in major organized crime who must be
encouraged to provide assistance to the

authorities, and by a majority, the court was

speaking there of a possible two-thirds reduction

in sentence.

We say, if that is the sort of reduction that

would be appropriate in that gross kind of case,

then plainly something has gone grossly wrong

here - to have this sort of discrepancy when the

offence with which the applicants were charged has

been made by Parliament to be a significantly less

important offence than that with which the

principal was charged. The applicants do put to

this Court that in the circumstances, the failure

of the Court of Appeal to ameliorate that gross

disparity between the sentences imposed on the

Pearn 6 12/3/93

applicants on the one hand, and the principal on
the other, means there has been a gross violation

of the principles which govern the exercise of

judicial discretion in imposing sentence.

It is further submitted to the Court that

should special leave be granted in this case, this

Court will have the opportunity to clarify the law

as to the proper basis upon which accessories after the fact should be sentenced. There appears not to be any commonality of approach in Australia's

supreme courts on this topic, and the Court's

attention is drawn, first, to the South Australian

case of The Queen v Mills (1977) 16 SASR at page

581.

DEANE J: It would be very difficult though, would it not?

I mean, assume for the sake of argument that in this

case Holmes was not a member of the police force.

Would no~ the argument be extraordinarily powerful

that, even if he had not co-operated with the

police, he should receive a lesser sentence than the

members of the police force who, in breach of their

duty, joined in covering up his crime?

MS BRANSON:  I think that would be right, Your Honour, I

think we must concede that.

DEANE J: Which means it is very difficult to talk of

principals in this area, in that the crime of the
accessory - well, of.course, one needs only to

think of Oliver Twist - can be a lot greater than

that of the principal.

MR BRANSON: 

If Your Honour pleases, whatever the case might be in an ordinary case, we would say that is not

the case when you have police officers, apparently
of equal rank, on duty together, performing the
same functions, two of whom initiate a crime, and

having done so, call on their colleagues to protect
them.	We say, it is plain beyond argument that the

most serious offending there is on the two

colleagues who initiate the criminal conduct and
then call on their colleagues to help them.

TOOHEY J: That may well be true, but the very factor which

makes it difficult to argue the disparity case,

namely the degree of co-operation rendered by

Holmes, apparently in a very general way, because

there is mention of a very substantial co-operation

in the eradication of crime in the police force,

makes it very difficult to speak of principals and

accessories, or to take the sentence of the

principal offender as some sort of yardstick

against which to measure the sentence of

accessories.

Pearn	12/3/93
MS BRANSON:	Yes, we accept, if Your Honour pleases, that it

is a difficult case for comparison, but we say that

the discrepancy is so great, and on the authorities
so apparently out of line with other cases where
serious consideration has been given to discount
for co-operation, that we say this case properly

takes on the character of a gross discrepancy.

And, if the Court pleases, this issue of the

extent to which the circumstances of the principal

offence are relevant to the severity of punishment

of the accessories is the very issue on which the

Supreme Courts in Australia do not speak with one

voice and, we say, a basis which makes this case appropriate for the grant of special leave - - -

DAWSON J: It has always been said that local conditions are

very important in sentencing. One does not

necessarily expect to find uniformity around the

country-._

MS BRANSON:  No, if Your Honour pleases, but when you find

one court saying: the circumstances of principal

offence cannot have a relevance; and another

supreme court saying: they are a factor of

relevance; in my submission that is such a

fundamental issue of principle that it would be

appropriate for the High Court to clarify that
matter, which is of general importance for

Australia as a whole. The cases that we refer to to show that discrepancy are first Reg v Mills in

the judgments of Justices Sangster and Jacobs and

the case of Hawkin, the 1986 Queensland decision

reported in 27 A Crim R 32.

DAWSON J: Surely in a case where other factors have been

governing factors it would not be an appropriate

vehicle to take up that, would it?

MS BRANSON:  I cannot put it beyond pointing out that

discrepancy and suggesting that it raises a matter
of public importance. If the Court pleases, they

are the submissions of the applicants.

DEANE J: Thank you, Ms Branson. The Court need not trouble

you, Mr Rofe.

In this case, as King CJ pointed out in his

judgment in the Court of Criminal Appeal, it is
clear that the judge who sentenced Holmes "gave a

very substantial discount for the fact that Holmes

had been an instrument in efforts directed towards

the eradication of corruption in the police force

and the implication of other offenders", including

the present applicants. We consider that the judge

who sentenced Holmes was fully justified in

allowing such a substantial discount and agree with

Pearn 8 12/3/93

King CJ that "that factor makes it impossible to

make a useful comparison between the sentences

imposed upon these [applicants] and the sentence

imposed on Holmes".

In these circumstances, appeals against

sentence by the present applicants would not enjoy
sufficient prospect of success to warrant the grant

of special leave to appeal.

Accordingly, the application for special leave

to appeal is refused.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

Fearn 9 12/3/93