R v Skaf

[2006] HCATrans 10

[2006] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S508 of 2005

B e t w e e n -

THE QUEEN

Applicant

and

BILAL SKAF

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 10.53 AM

Copyright in the High Court of Australia

MR R.D. COGSWELL, SC:   May it please the Court, I appear for the applicant together with my learned friend, MS R.A. PEPPER.  (instructed by Crown Solicitor for New South Wales)

MR J.S. STRATTON, SC:   May it please the Court, I appear for the respondent together with my learned friend, MS D. YEHIA.  (instructed by Legal Aid Commission of New South Wales)

GLEESON CJ:   Yes, Mr Cogswell.

MR COGSWELL:   Your Honours, this Court has described the discretion which the law commits to sentencing judges as being of vital importance in the administration of justice.  This is a case where the Court of Criminal Appeal of New South Wales overturned an important discretionary finding by a sentencing judge in the District Court.  The Court of Criminal Appeal, however, in our submission respectfully, without articulating its reasons for overturning that finding, in effect substituted its own opinion for that of the sentencing judge.  This, we say, is an error.

GLEESON CJ:   On page 86 of the application book the Court of Criminal Appeal says that six grounds of appeal have been established.

MR COGSWELL:   Yes, your Honour.

GLEESON CJ:   That is six errors on the part of the sentencing judge have been established.  In those circumstances, it was obligatory for the Court of Criminal Appeal to re-exercise the sentencing discretion, was it not?

MR COGSWELL:   Yes, your Honour.

GLEESON CJ:   I must have misunderstood your last submission.  How could the Court of Appeal have done anything other than sentence afresh?

MR COGSWELL:   It could not have, your Honour, because, in fact, it found errors established on other grounds which we do not challenge.  We challenge just two of the counts in respect of which their Honours found error, counts 5 and 14, the grounds being, we say, where the Court of Criminal Appeal was in error in finding that his Honour was in error in finding worst case and in finding that his Honour was in error in imposing manifestly excessive sentences.

GLEESON CJ:   That is only another way of saying, is it not, that when the Court of Criminal Appeal set about the necessary task of re-exercising the sentencing discretion, it made an appreciation of the seriousness of the case that was different from that of the primary judge?

MR COGSWELL:   Yes, your Honour, but ‑ ‑ ‑

GLEESON CJ:   Well, the question is, why would we intervene in that?

MR COGSWELL:   Because, your Honour, if your Honours grant leave and uphold the appeal and remit it, the Court of Criminal Appeal will be obliged to reconsider whether or not they regard the sentencing judge as being in error in his finding of worst case.  Now, it might be that they decide that the sentencing judge was correct and that they decide not to overturn the sentences on the two counts, count 5 and count 14.  That in turn may affect the accumulation of the sentences.  It may be that they decide in respect of those two discrete counts, count 5 and count 14, not to interfere with the sentence fixed by his Honour and, in fact, to cumulate them in a way which will result in a slightly extended sentence. 

My learned friend is correct to point out on a utility point that if we are completely successful and the matter goes back to the Court of Criminal Appeal and the Court of Criminal Appeal decides that his Honour was not in error in finding worst case and decide that appropriate sentences are the sentences imposed by his Honour and cumulate them in the same way, that the non‑parole period will fall short of the present non‑parole period imposed by the Court of Criminal Appeal.  However ‑ ‑ ‑

HEYDON J:   So will the head sentence.

MR COGSWELL:   No.

HEYDON J:   So you say paragraph 3.11 on page 114 is wrong?  Page 114, paragraph 3.11, which is head sentence ‑ ‑ ‑

MR COGSWELL:   Yes, 3.12, your Honour.

HEYDON J:   Yes, non‑parole period.

MR COGSWELL:   The non‑parole period – where my learned friend says at 3.12:

If the original sentences for counts 5 and 14 were restored, there would be no impact on the respondent’s overall non‑parole period.

But not the overall sentence.

HEYDON J:   But what about 3.11?

MR COGSWELL:   Paragraph 3.11 says that the overall sentence will expire on 11 February 2029.

HEYDON J:   It says:

the sentences for counts 5 and 14 were entirely subsumed in the overall head sentence of 28 years –

If so, if you win here, the matter goes back to the Court of Criminal Appeal who say Judge Finnane was actually right, so we will give 20 plus the non‑parole period, it seems to make no practical difference, according to paragraph 3.11.

MR COGSWELL:   Well, it depends on where the Court of Criminal Appeal commences, how they accumulate it.  They might decide to accumulate it ‑ ‑ ‑

HEYDON J:   That is a highly discretionary group of issues.

MR COGSWELL:   Quite so, your Honour, we acknowledged that.  The utility, if I can put it that way, is in adding about two years onto the head sentence from about 11 February 2029 to 11 February 2031, but they are two years by which the overall sentence is extended and in respect of which the applicant would be subject to – well, first he may or may not be granted eligibility for parole and, secondly, if he is granted parole he will be for an additional two years subject to the normal parole conditions.  Now, we acknowledge that the point raised by my learned ‑ ‑ ‑

HEYDON J:   I do not want trivialise the extremely grave nature of counts 5 and 14, but to talk about two more years on the head sentence, while not exactly de minimis, is a very low proportion.

MR COGSWELL:   Your Honour, the force of that remark is acknowledged.  Can I go to the two reasons that we say that this case should attract special leave and we say it is so far as the interests of the administration of justice are concerned.  Your Honour, there are two areas.  One is concerning the judicial hierarchy and the other is concerning the public.  This was, we say, a well articulated discretionary judgment in a notorious case and the learned sentencing judge has imposed sentences for crimes in respect of which other judges ‑ ‑ ‑

GLEESON CJ:   Which was the well articulated judgment?

MR COGSWELL:   Judge Finnane.

GLEESON CJ:   You have just acknowledged that you do not challenge the findings of six errors on the part of Judge Finnane by the Court of Criminal Appeal.

MR COGSWELL:   Yes, your Honour, but, nevertheless, it was well articulated so far as the worst case scenario was concerned.  I will take a step back and qualify the first remark.  The reasons for his Honour’s finding of worst case scenario were, in our submission, very clear and what has happened, we say, is that it has gone to the Court of Criminal Appeal where the Court of Criminal Appeal, without giving or articulating reasons, has simply set aside his Honour’s finding of worst case scenario ‑ ‑ ‑

GLEESON CJ:   You keep referring to that as a finding, Mr Cogswell.

MR COGSWELL:   Yes, your Honour.

GLEESON CJ:   It is a statement of appreciation of the seriousness of an offence, is it not?  It is not a finding of primary fact.

MR COGSWELL:   No, it is ‑ ‑ ‑

GLEESON CJ:   There are, of course, considerable areas of uncertainty about what this concept of worst case means.  I do not suppose that a person who has been convicted of murder could say, “This is not the worst case.  It is not as bad as Joseph Stalin.”  You could always point to somebody worse than the offender, but that does not mean an event is not within the description of a worst case.  But what is involved in a conclusion that something is within the category of worst case is not a finding of primary fact; it is an appreciation for the purpose of the exercise of a sentencing discretion of the seriousness of events.

MR COGSWELL:   I accept that, your Honour, and in terms which this Court put it in Ibbs, a sentencing judge has to consider where the facts of a particular case lie in a spectrum, at one end of which is what this Court described as cases of the worst type of sexual assault perpetrated by any act.  So that it is an appreciation of where it lies in that spectrum and that is a discretionary judgment.  Our complaint, with respect, about the Court of Criminal Appeal is that it set aside that discretionary judgment without giving any or any sufficient reasons.  It simply said, “We do not regard this as a worst case”, and set aside. 

Can I take your Honours to where their Honours deal with that ground.  It is at page 61 of the application book, where their Honours turn to ground 1, the ground concerning worst case.  Their Honours set out the maximum penalty at paragraph 35.  Your Honours, they do acknowledge in paragraph 36 of the judgment, line 45 that none of the offences arises from penetration of the vagina, but it was what they described as oral intercourse.  Their Honours, over at page 62 and at paragraph 38 of the judgment, recite the seriousness of the offences.  They refer to Ibbs.  Then at 63 they, with respect, correctly describe – at paragraph 40, after setting out Ibbs, the sentencing judge’s task is correctly described.  However, then at 41:

Without minimising the gravity of the offences committed on 10 August 2000, they cannot individually or collectively be regarded as in the worst category of aggravated sexual assault for the purposes of s 61J.

They recite the Crown’s argument and then at the top of 65 in the application book their Honours say, at the first line:

Nevertheless, having made this distinction between the substance of count 3 and the substance of count 5, this Court does not consider when the test addressed in Ibbs is applied, that either of the acts of oral intercourse committed by the applicant against Ms A could be regarded as fitting into the worst category of case.  The same conclusion is inescapable when considering the only count under s 61J in which the applicant’s criminality concerning Ms B was that of a principal in the first degree.

We have set out in our submission in the application book on page 105 – and I will not take your Honours to it – the reasons supporting the correctness of the learned sentencing judge’s opinion about worst case.  Their Honours, we say, at the top of 65 have simply said that they do not consider it worst case without articulating any reason for that finding.  It is an appeal from a discretionary judgment.  It is not a case of specific error.  It is a case of an unreasonable conclusion or unreasonable result.

HEYDON J:   Reasons for judgment can often be improved by readers.  But are not the reasons really to be found in examining the facts of the case they set out at the bottom of 65, 66 ‑ ‑ ‑

MR COGSWELL:   No, your Honour, because ‑ ‑ ‑

HEYDON J:   ‑ ‑ ‑ and then, in effect, implicitly comparing them with the facts on counts 5 and 14?

MR COGSWELL:   The difficulty with that is, your Honour, that those following pages are expressly referrable to other offences.  Their Honours at 65 at the commencement of paragraph 46, line 20 of the application book ‑ ‑ ‑

HEYDON J:   No, I am sorry – are you making this submission, that the material in paragraphs 48 to 51 relate only to 30 August 2000?

MR COGSWELL:   Correct, that is my submission.

HEYDON J:   Why would they not relate as much to 10 August as to 30 August?

MR COGSWELL:   Because their Honours make it quite express in paragraph 46:

Turning to the offences committed on 30 August 2000 –

Then at page 67 of the application book, paragraph 53:

It was submitted on the applicant’s behalf that consideration of the cases above reviewed reinforces the submission that neither of the s 61J offences which the applicant committed on 30 August 2000 was in the worst category of case.

Then over the page at 68, paragraph 55:

The Court here regards the offences committed by the applicant against s 61J on 30 August 2000 –

Those reasons are expressly referable to other offences, not to the offences in question.

HEYDON J:   It would seem strange that Mr Stratton would have referred to all these authorities only in relation to the 30 August charges as distinct from the 10 August charges.

MR COGSWELL:   I agree respectfully with your Honour that would seem strange and I am not suggesting that he did.

HEYDON J:   So it is just, to be blunt about it, some verbal infelicity, but is it a substantive vacuum in the reasoning?

MR COGSWELL:   Well, your Honour, it leaves, so far as the record is concerned, a dichotomy between the court dealing with one set of offences and the court dealing with the other set of offences and expressly – not impliedly, but expressly applying separate reasoning for each of the two sets of offences.  So that as the reasoning for the sentences that we challenge stands, it stands without the support of those and it means that the court has simply not articulated the basis for intervening. 

Can I, your Honours, just develop the two points about the administration of justice.  We say that it is important for primary judges to be able to know that their sentencing decisions will not be interfered with absent House error.  The policy reasons behind House are important to consider because primary judges are the ones that see the witnesses and see the offences and are in the best position to work out the sentences and their sentences should be reviewed only in cases of manifest error.  This Court itself has said that the ‑ ‑ ‑

GLEESON CJ:   But, Mr Cogswell, the Court of Criminal Appeal found six mistakes on the part of the sentencing judge.

MR COGSWELL:   Yes, your Honour.

GLEESON CJ:   It was obliged to resentence the respondent.

MR COGSWELL:   The Court of Criminal Appeal was?

GLEESON CJ:   Yes, so in terms of House v The King, this was a case in which there were specific errors in the sentencing process and the appellate court had to intervene.

MR COGSWELL:   Yes, that is right, your Honour, but we say the basis for them intervening in respect of one of the errors which the court found was, with respect, wrong, that they said ‑ ‑ ‑

GLEESON CJ:   When they intervened, they then had to make their own appreciation, did they not, of the seriousness of the conduct?

MR COGSWELL:   That is right, your Honour.

GLEESON CJ:   Now, we may disagree with that appreciation, but that is hardly a special leave point.

MR COGSWELL:   No, your Honour, the special leave point is in the fact that they intervened in two of the offences without, we say, sufficient warranty for intervening, and that impacts on the sentencing judges and the public so far as the administration of justice is concerned, in the public having confidence in the role of sentencing judges so far as findings which they make in cases such as this, where a judge has found a worst case category, and if members of the public were to go to the reasons of the Court of Criminal Appeal, we would respectfully say that they would not find readily articulated the reasons that the Court of Criminal Appeal found that the primary sentencing judge was in error in finding that these offences fell within the worst category of case.  They are our submissions, if it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Stratton.

For the reasons given in the respondent’s written submissions and acknowledged by the applicant to be of substance, there are at least serious grounds to doubt that success of an appeal in this matter would produce any material difference to the ultimate sentencing outcome.

There is, however, a more fundamental problem with this application.  This Court is not a Court of Criminal Appeal.  It intervenes in sentencing cases relatively rarely and generally only when they raise some important question of legal principle or some issue of general importance to the administration of criminal justice.  It does not intervene simply on the ground that its own appreciation of the seriousness of a particular case may be different from that of a sentencing judge or a Court of Criminal Appeal.

In the present case, the Court of Criminal Appeal found six material errors in the reasoning of the sentencing judge.  That finding has not been challenged in the present application.  In those circumstances, the Court of Criminal Appeal was obliged to resentence the respondent and in doing so to exercise its own sentencing discretion afresh.  In doing that, it was obliged to form its own appreciation of the seriousness of the case.

As I have already said, the fact that this Court might make a different appreciation of the seriousness of the circumstances of a particular case is not of itself a ground for intervention.

The case raises no issue suitable to a grant of special leave to appeal to this Court and the application is dismissed.

MR COGSWELL:   May it please the Court.

MR STRATTON:   If the Court pleases.

AT 11.13 AM THE MATTER WAS CONCLUDED