Pereira v The Queen; Gibson v The Queen - [1992] HCATrans 215

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SlS of 1992
B e t w e e n -
MANUEL FRANCESCO PEREIRA

Applicant

and
THE QUEEN

Respondent

Office of the Registry

Sydney No S117 of 1991
B e t w e e n -
WARWICK WILLIAM GIBSON

Applicant

and
THE QUEEN

Respondent

Applications for special leave

Pereira

4/8/92

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 10.05 AM

MR P.J. HIDDEN, QC:

Your Honours, I appear with my learned

friend, MR S.J. ODGERS, for the applicant Pereira.
(instructed by Watsons)

MR G.R. JAMES, QC:

May it please the Court, in the matter

of Gibson, I appear with my learned friend, MR T.A.

GAME. (instructed by J.J. Cullen & associates)

MR M.S. WEINBERG, QC:

If the Court pleases, in both matters

I appear, together with my learned friend, MR T.L.
BUDDIN, on behalf of the respondent. (instructed
by the Commonwealth Director of Public
Prosecutions)

MR HIDDEN:

Your Honours, if it suits the convenience of the

Court, as the applications raise substantially
similar questions, might the Court be prepared to
hear the argument in Gibson's matter first?

MASON CJ: Yes, that will be acceptable, Mr Hidden.

Mr James.

MR JAMES:

May it please the Court, might I, at the outset, indicate that this is not a sentencing appeal to

this Court but it raises at bottom, in our

submission, a number of fundamental questions:

firstly, the role of consistency in sentencing

throughout Australia in the light of the federal

jurisdiction; the respect to be accorded by the

courts exercising federal criminal jurisdiction to
the decisions of other courts within that

jurisdiction; to the proper interpretation of

section 235 of the Customs Act and the schedules to
the Customs Act in so far as they prescribe
sentences in respect of various offences relating
to narcotic goods, which sentences include
sentences as severe as life imprisonment; the
rlerivation of sentencing policies or guidelines and

their expression by Courts of Criminal Appeal so as

to lay down what amount to rules for sentencing and

for the conduct of Crown appeals; and even more

importantly, perhaps, the proper interpretation of

Part 1B of the Commonwealth Crimes Act as it

applies throughout Australia in an apparent attempt

to achieve some consistency - and I am using the

word "consistency" quite carefully in order to
discriminate between uniformity or mathematical
ratios or parity, but to obtain a consistency of
sentencing throughout the nation.

MASON CJ:

You make it sound like an earth-shattering case,

Mr James, but what are the precise questions?

MR JAMES:	The precise question arises in this way, Your Honour. The New South Wales Court of Criminal
Appeal, in the decision in Chase, in their judgment

Pereira

4/8/92

included what amounts to a remark or observation by
Mr Justice Lee on the comparable harmfulness of
cocaine and…

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 Pereira v The Queen; Gibson v The Queen

Details

AGLC: Pereira v The Queen; Gibson v The Queen [1992] HCATrans 215
Case: [1992] HCATrans 215
Decision Date

CaseChat Overview and Summary

These applications for special leave to appeal concerned the sentencing of individuals involved in drug importation offences under the *Customs Act 1901* (Cth). The applicants, Manuel Francesco Pereira and Warwick William Gibson, sought to challenge decisions of the New South Wales Court of Criminal Appeal. The High Court of Australia was asked to consider the principles governing sentencing in federal criminal matters, particularly in light of the potential for inconsistencies across different jurisdictions.

The central legal issues before the High Court involved the proper interpretation of section 235 of the *Customs Act* and its associated schedules, which prescribe penalties for narcotic offences, including life imprisonment. The applicants also raised questions regarding the derivation and application of sentencing policies or guidelines by Courts of Criminal Appeal, and the overarching aim of achieving consistency in sentencing throughout Australia under Part 1B of the *Crimes Act 1914* (Cth). A specific point of contention was the perceived elevation of a judicial observation regarding the comparable harmfulness of cocaine and heroin, without explicit factual basis or statutory interpretation, to a guiding principle in sentencing.

The Court was required to determine whether a perceived judicial pronouncement on the equal harmfulness of cocaine and heroin, which had influenced sentencing in a line of cases, was a sound basis for sentencing decisions. This involved examining whether such a proposition was a matter of observed fact, judicial notice, or a correct interpretation of the *Customs Act*. The applicants argued that the trial judge had attempted to address the comparable harmfulness of drugs and achieve sentencing consistency, despite prosecutorial discretion leading to different charges and jurisdictions for individuals involved in the same transaction. The Court noted the existence of parallel federal and state legislation governing drug offences.

Orders