24 July 1997 Criminal law - sentence - co-offenders - practice and procedure
Criminal law—Sentence—Co-offenders—Disparity between effective sentences—Parity principle—Totality principle—Relationship between parity and totality principles. Practice and Procedure—Court of Criminal Appeal—Jurisdiction to entertain second appeal—Procedure for determining applications for leave to appeal against sentence—Error in Notification of Court's Determination. Crimes Act 1914 (Cth), ss 16B, 19AD and 21E Criminal Appeal Act1912 (NSW), s 5(1)(c) Criminal Appeal Rules (NSW) rr 51 and 52.
Orders
Order: 1. Appeal allowed.
2. Remit the matter to the Court of Criminal Appeal of New South Wales for it to take such steps as it can to give effect to the decision of this Court.
Decision
DAWSON AND GAUDRON JJ:
The appellant, Mario Postiglione, appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales by which he was granted leave to appeal against sentence and his appeal dismissed. However, the Notification of Court's Determination[1], which apparently operates as the court's formal order, indicates that he was granted leave to appeal and that the unsuccessful appeal was against conviction rather than against sentence. It is not clear whether that order has been perfected[2]. And, as will later appear, there are other procedural uncertainties associated with this case.
The appellant pleaded guilty to two charges of conspiracy to import a prohibited substance - in one case, heroin and, in the other, cocaine. He was sentenced by Mathews J to 18 years imprisonment with a non-parole period of 13 years and 10 months, dating from 7 May 1993. It was revealed in the sentencing process that he had co-operated with police and prosecution authorities and had undertaken to give evidence against his co-conspirators, including George Savvas. In accordance with s 21E of the Crimes Act1914 (Cth)[3], Mathews J indicated that, but for that, she would have imposed a sentence of 21 years with a non-parole period of 16 years and 10 months.
As usually happens when an accused person indicates his or her willingness to give evidence against a co-accused, Postiglione was sentenced before Savvas stood trial. An application to the Court of Criminal Appeal for leave to appeal against sentence on the ground of its severity was also heard and determined before Savvas was brought to trial. Leave to appeal was granted but the appeal dismissed (Abadee J, Finlay J and Loveday AJ agreeing). That is not the decision under appeal. It does, however, have some relevance to it.
On the hearing of the present appeal, we were informed by counsel in response to a question from the Court that no order was taken out giving effect to the decision of the Court of Criminal Appeal constituted by Finlay and Abadee JJ and Loveday AJ. However, enquiries by the Deputy Registrar indicate that a Notification of Court's Determination was…
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.
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Details
AGLC
Postiglione v the Queen [1997] HCA 26
Case
[1997] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Postiglione against a sentence imposed upon him. The central issue concerned the disparity between his sentence and those of his co-offenders, and the application of the parity and totality principles in sentencing.
The Court was required to determine whether the disparity in sentences between Mr Postiglione and his co-offenders was unjustifiable, and how the parity and totality principles should be applied in such circumstances. It also considered the procedural aspects of the Court of Criminal Appeal's jurisdiction to entertain a second appeal and the proper procedure for determining applications for leave to appeal against sentence, particularly in light of an error in the notification of the Court's determination.
The High Court held that the parity principle requires that sentences imposed on co-offenders should be broadly similar, unless there are objective reasons for disparity. This principle is not absolute and must be balanced against the totality principle, which requires that the total sentence imposed on an offender for multiple offences should not be excessive. The Court found that the disparity in sentences in this case was not adequately explained and that the Court of Criminal Appeal had erred in its approach.
The appeal was allowed, and the matter was remitted to the Court of Criminal Appeal of New South Wales to take such steps as it could to give effect to the High Court's decision.
Orders
Orders of the court
1. Appeal allowed.
2. Remit the matter to the Court of Criminal Appeal of New South Wales for it to take such steps as it can to give effect to the decision of this Court