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

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…

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 R v Diver [2011] HCATrans 59

Details

AGLC: R v Diver [2011] HCATrans 59 [2011] HCATrans 59
Case: [2011] HCATrans 59
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, R, against the respondent, Diver. The dispute arose from a criminal proceeding where the applicant sought to challenge a decision of a lower court.

The primary legal issue before the High Court was whether the applicant had established sufficient grounds to warrant the grant of special leave to appeal. This involved an assessment of whether the applicant's proposed grounds of appeal raised a question of law that was of general public importance, or whether there were other compelling reasons for the High Court to grant leave.

Heydon and Bell JJ considered the arguments presented by the applicant and the respondent. Their Honours ultimately determined that the applicant had not demonstrated the necessary threshold for special leave to appeal. The application was therefore dismissed.

Orders