R v Diver [2011] HCATrans 59

[2011] HCATrans 59

[2011] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M145 of 2010

B e t w e e n -

THE QUEEN

Applicant

and

GLENN WILLIAM DIVER

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 9.28 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the applicant in this matter.  (instructed by Solicitor for Public Prosecutions (Vic))

MR J.E. McLOUGHLIN:   If it please the Court, I appear with my learned friend, MS N.M. LEWERS, for the respondent.  (instructed by Victoria Legal Aid (Criminal Law Section))

HEYDON J:   Yes, Mr Silbert.

MR SILBERT:   May it please the Court, it is acknowledged that this application for leave to appeal faces two major hurdles; it is an application for leave to appeal against sentence, which is hurdle number one, and a fortiori it is an application by the Crown, which is hurdle number two, so we are under no illusions as to the situation we are in, and I am not sure that leave to appeal for sentence by the Crown has ever succeeded in Victoria.  We submit that there is an ‑ ‑ ‑

HEYDON J:   Well, that is very tempting.

MR SILBERT:   I am attempting, your Honour.  We submit that there is an important question of principle involved and that this matter is a suitable vehicle for its resolution.  The judge at first instance imposed a sentence of 17 years and fixed a non‑parole period of 14 years.  Your Honours will see that at page 79.  The Court of Appeal determined that the non‑parole period, exceeding as it did 80 per cent of the head sentence, thereby constituted specific error and, by way of obiter, said that it was also manifestly excessive and proceeded to re‑sentence the applicant to 17 years with a minimum of 13 years.

Now, on its own one would hardly complain about that, but it is submitted that this represents a tinkering with the sentence, is contrary to authority and sentencing principle and brings about unfortunate consequences, a number of unfortunate consequences, in the criminal justice system in Victoria ‑ ‑ ‑

HEYDON J:   Just to my mind though, to reduce a non‑parole period – to say that a 14‑year non‑parole period is manifestly excessive and then reduce it to 13 is a contradiction.

MR SILBERT:   Absolutely, your Honour, and that is one of the reasons why we are here.  The consequences of this reduction are that it encourages a proliferation of appeals in Victoria which now has an outstanding backlog of criminal appeals of over 550.  It takes two years to get a criminal appeal on from date of verdict.  There is, as I say, a delay of two years in the hearing of appeals. 

This sort of decision places an unreasonable burden on trial judges, and it is submitted that it is difficult to escape the – the other matter was that following the handing down of this sentence the trial judge, in this case Justice Coghlan, next sentenced his next convicted prisoner to 18 with a 14 and it is difficult to escape the conclusion that that was tailored to meet the dicta of the Court of Appeal in this case, and may well have resulted in an inappropriate sentence being imposed on that particular person as a consequence of this sentence.

Now, when I say it is contrary to authority, your Honours have the Court of Appeal of Victoria decision in Merritt under tab 1 – I am not going to go and cite it to your Honours, but this decision, it is submitted, is contrary to that decision which is a decision of the Court of Appeal – media neutral citation [2008] VSCA 238, a court comprising Justices Vincent, Nettle and Kellam, and it is enough to say from the headnote that:

A non‑parole period cannot be fixed by reference to some fixed percentage of a head sentence.

I do not need to say more than that.  More importantly than the conflict within the Court of Appeal of Victoria, it is contrary to decisions of this Court, and we have under tab 2 Inge v The Queen, which your Honours will see, and again I do not need to take your Honours – it is Inge v The Queen (1999) 199 CLR 295, and I do not need to go beyond the headnote which says that:

in determining an appropriate non‑parole period in the case of a relatively young offender convicted of murder no principle required the period to bear a proportionate relationship with the likely term of the prisoner’s natural life.

Now, I do not intend to take your Honours to anything said there, but that summarises it.

BELL J:   The Court of Appeal in this instance at paragraph 32 on application book 93 acknowledged that there was no normal or usual period with respect to the fixing of the parole period.  It seems to me – I have some difficulty seeing that the court can be said to have taken a different approach in terms of principle from that in Merritt.  It is the conclusion that you challenge.

MR SILBERT:   It is the conclusion that we challenge, your Honour, and in particular when one looks at the decision of this Court delivered late last year in Hili v The Queen and Jones v The Queen, delivered on 8 December 2010, the Court clearly dissected the sentencing principles in relation to non‑parole periods, confined admittedly to federal offences under Commonwealth law.  At paragraphs 18, 42, 43 and 48 it very clearly states that there is no such thing as a fixed percentage in relation to parole and head sentence.  I do not, I think, need to burden your Honours with reading those paragraphs, but the contents of paragraphs 18, 42, 43 and 48 are significant, and in my submission have been completely and utterly ignored in the conclusion reached by the Court of Appeal in the case before your Honours today.

The Victorian cases cited at 3.34 on page 114 of the appeal book all effectively contradict the conclusion reached in this case.  There are a number of Victorian cases, as your Honours will see, cited at page 114 of the appeal book at 3.34, all of which specify different percentages of parole ratios to head sentences which contradict effectively the assertion or the result in this case. 

Now, following the decision of Hili v The Queen and Jones v The Queen, the Court of Appeal dealt at tab 4 with a case called Hasan v The Queen on 17 December 2010, the citation being [2010] VSCA 352; that was effectively nine days after the decision handed down by this Court. In Hasan the Court of Appeal refers to Hili, and it is submitted effectively ignores it. It proceeds to feel constrained to uphold what it specifies to be an inappropriate sentence because of what it terms “current sentencing practices” and it appears to rely on section 5(2B) of the Sentencing Act (Vic), the extract of which appears behind tab 9 which specifies current sentencing practices as one of the criteria which a court is obliged to take into account in sentencing an offender.

The consequence, as your Honours will see in Hasan, is that the court firmly states that the sentence in that case is inappropriate, but because of current sentencing practices it seems that it is to remain inappropriate.  It is an approach evidenced in Hasan, as your Honours will see, by the appending of a table setting out what are said to be similar cases, and such tables have now become commonplace in sentencing decisions of the Court of Appeal.  Your Honours will see at the end of Hasan and those tables are used to justify what are invariably said to be inappropriate sentences, but in accordance with current sentencing practices.  Now, one wonders how sentences are ever likely to change if a court feels constrained by sentences that have been handed down in previous cases.

HEYDON J:   In paragraph 60 of Hasan it says:

We note that, in a forthcoming Crown appeal against sentence, the Director is seeking just such as review.

MR SILBERT:   Yes, it does, your Honour.

HEYDON J:   Is that referring to today’s application here or ‑ ‑ ‑

MR SILBERT:   No, it is not, your Honour.  The Court of Appeal has encouraged the Crown to lodge an appeal challenging current sentencing practices in relation to certain offences.  Now, not one of those appeals has been disposed of as yet, and intellectually one wonders how one challenges current sentencing practices in a regime that is based on instinctive synthesis, and discretion of a sentencing judge with a broad range.  It may well approach giving a guideline judgment; one does not know, but it has not been disposed of yet and it is not an area that we have embarked on other than to have lodged some appeal.  This is not that case, your Honour, and many appeals are still being disposed of on the basis that inappropriate sentences are justified by current sentencing practices.

The final case I would refer your Honours to is the case of Romero behind tab 5.  On 11 February 2011 in refusing leave to appeal against a sentence of 18 years with a minimum of 15 years for a murder conviction, the court proceeded effectively, it is submitted, to ignore Hili and reverted to speaking of fixed ratios with separate distinct ratios applying to murder and other serious crimes.  If your Honours look behind tab 5, and it is perhaps worth taking your Honours to paragraph 25 of Romero [2011] VSCA 45, and if your Honours look at paragraph 25 of that decision your Honours will see the Court of Appeal there saying:

For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non‑parole periods between 60 and 66 per cent and up to 75 per cent of the head sentence are not regarded as uncommon.  Where the ratio of the non‑parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny.  Even then, the fact that the non‑parole period exceeds 80 per cent of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non‑parole period.

So it is submitted, your Honours, that the Court of Appeal in one sense is all over the place as far as principle is concerned, and so far as Victoria is concerned, the practices in these cases appear to differ according to the composition of the court.  They appear to be mechanistic and antithetical to the method of sentencing based on instinctive synthesis and it is submitted that they contribute to a proliferation of appeals and the imposition of a very unattainable perfection on trial judges.

So that is why this case has been selected as a vehicle for an application for special leave because the consequences for this case are minor, and as your Honour Justice Heydon said, the conclusion that 13 years and 14 years, one bespeaks error and one does not bespeak error, it is submitted simply does not make sense.  Now, unless the Court has any questions they want to ask me, those are the submission I would make.

HEYDON J:   Yes, thank you, Mr Silbert.  We need not trouble you, Mr McLoughlin.

Mr Silbert has made criticisms of various recent decisions of the Court of Appeal in relation to sentencing practices.  He submits that this particular application has been made in order to bring consistency into the approach of the Court of Appeal in future.  Whatever the merits of the criticisms he advanced of the decisions in other cases, while it is true that the decision in this particular case is open to criticism, it is not clear to us that it is an appropriate vehicle to determine whether there has been error in principle in the other cases.  The resolution of that question must depend on an application in relation to one or more of those other cases.  Accordingly, we are of the opinion that special leave should be refused.

MR SILBERT:   If the Court pleases.

HEYDON J:   The Court will adjourn to reconstitute.

AT 9.42 AM THE MATTER WAS CONCLUDED