R v Smith No. Sccrm-98-44 Judgment No. S6649

[1998] SASC 6649

R  v  SMITH

Criminal

Bleby J

On 30 January 1998 the appellant was found guilty after a trial by jury of possessing heroin for sale contrary to s32(1)(c) of the Controlled Substances Act 1984.

The appellant was sentenced on 17 February 1998 to imprisonment for six years with a non-parole period of four years and nine months commencing as from 1 January 1998.

An application for leave to appeal against the sentence was heard and dismissed by Mullighan J on 23 March 1998.  No reasons were given by his Honour, but I have had access to and have read the transcript on the hearing of that application.

The ground of appeal contained in the original notice of appeal simply alleged that the sentence was manifestly excessive.

Application is now made to me seeking, first, leave to amend the grounds of appeal to include additional grounds and, secondly, to have me grant leave to appeal, that is, to reconsider the application previously dismissed by Mullighan J, but upon the amended grounds.

The grounds which are now sought to be incorporated by way of amendment to the notice of appeal have been filed and if amended, would read as follows:

“1..... The sentence and non‑parole period are manifestly excessive having regard to:

1.1... the absence of prior drug convictions on the appellant’s record.

1.2... the fact that the appellant had not served a sentence of imprisonment since 1986.

1.3... the fact that the longest period of imprisonment previously served by the accused was 3 months in 1986.”

........................... I should observe in relation to that ground that it is clearly only an amplification of what was argued before Mullighan J, because the transcript of that application for leave to appeal indicates that all those matters which are particularised in ground 1 of the sought‑to‑be‑amended grounds were ventilated on the application before Mullighan J.

........................... The second and new ground which is sought to be added reads as follows:

“2..... The sentence and non‑parole period are manifestly excessive having regard to the conditions under which the appellant has commenced serving his sentence, which the appellant submits contravene relevant international instruments such as the Standard Minimum Guidelines for the Treatment of Prisoners and the International Covenant of Civil and Political rights.”

.................. It will be observed that the proposed new ground 2 is no more than the specification of one additional ground as to why the sentence is said to be manifestly excessive.  The only difference between ground 2 as proposed and the new particulars in ground 1, is that ground 2 as proposed was not argued before Mullighan J.

.................. It seems to me that four questions arise on this application:

(1)... Can I entertain the application for leave to amend now that the application for leave to appeal has been dismissed?

1. If I can, should I grant leave to amend?

1. Can I, as a single judge, rehear the application for leave to appeal based on the amended grounds of appeal?

1. If I can, should I grant leave?

Before I venture upon the answers to those questions, I think it is necessary to say something about the process for the granting of leave to appeal and the giving of leave to amend.

Section 352(1)(a)(iii) of the Criminal Law Consolidation Act provides, in effect, that there is an appeal against sentence only by leave of the Full Court.  Section 367 of that Act provides that the granting of leave may be by a single judge, but that if it is refused the appellant is entitled to have the matter determined by the Full Court.  Such an application is not an appeal: R v Tregaskis [1937] SASR 358.

A request has been made to have the application for leave determined by the Full Court.  It was made on 23 March 1998 immediately following the dismissal of the application by Mullighan J.  That application, or that request has not yet been dealt with by the Full Court.  In that sense the application for leave to appeal is therefore still extant, and is due to come, at some stage, before the Full Court.

The power of amendment is contained in r21 of the Supreme Court Criminal Appeal Rules, 1996 which provides as follows:

“21... The Full Court and any judge of the Supreme Court shall have power to make at any time and on such terms as the Full Court or such Judge may think fit, any order or direction dispensing with compliance with these Rules, giving leave to amend or giving any other order or direction of the kind referred to in Rule 3.04 of the Supreme Court Rules 1987, as though that rule was incorporated into these Rules and as though the said Rule 3.04 applied mutatis mutandis to proceedings which these Rules apply.”

.................. As to the first question which I posed, namely, whether I can entertain the application for leave to amend in circumstances where leave to appeal has been refused by a single judge, I am not aware of any authority directly in point.

.................. There is a case of R v K (1991) 161 LSJS 37, where in circumstances where leave to appeal had been granted, counsel at the hearing of the appeal applied for leave to amend the grounds of appeal to insert additional grounds of appeal which had not been considered by the single judge in granting leave. The Full Court made it quite clear that the usual practice for an application to amend and for the granting of leave to include additional grounds of appeal should be dealt with by a single judge. But, I repeat, the court was there speaking about a situation where leave had been granted by a single judge on other grounds. Similar observations were made by the Court of Criminal Appeal in the case of R v Earley, (Unreported, 7 December 1990, Judgment No 2630).

.................. Although leave has been refused in this case by a single judge, the application for leave still subsists and presumably will still be heard by the Full Court, initially in private under r15 of the Supreme Court Criminal Appeal Rules 1996.  Whilst the application is still alive in that sense, there is nothing to suggest that a single judge cannot in the meantime grant leave to amend the appeal.  Indeed, the authorities I have quoted suggest that it is desirable that such an application should be determined by a single judge.  I would, therefore, hold that I have the power to grant leave to amend, notwithstanding the refusal of the initial application for leave to appeal on the earlier occasion by Mullighan J.

.................. The next question is whether leave to amend in the terms sought should be granted.  The application is opposed by Mr Brebner on behalf of the Director of Public Prosecutions.  In my opinion it is a matter where it is appropriate that leave to amend should be given.  But merely because leave to amend may be given is no indication, I stress at this stage, of the prospect of success of that ground of appeal, and it does not follow that I have power to grant leave to appeal, or that if I have, that it would follow that leave to appeal would be given.

.................. It seems to me there is some merit at least in expanding upon the grounds as argued before Mullighan J in relation to what is proposed to be the amended ground 1, and if there are other factors which are sought to be relied upon by way of the sentence being manifestly excessive, they should at least be allowed to be argued.  I therefore propose to grant leave to amend the notice of appeal in terms which are sought.

.................. The next question relates to the power of a single judge to entertain a further application for leave to appeal where leave has already been refused by another judge.  Rule 15 of the Criminal Appeal Rules seems to be reasonably clear as to the course of events which follow the refusal to grant leave by a single judge.  Sub-rule (3) provides:

“(3)When any application has been dealt with by a Judge pursuant to this Rule, and whether or not the decision has been pronounced by the Judge in open court in the presence of the appellant or appellant’s counsel, the Registrar shall notify the appellant of the decision by notice in form 6.  In the event of the Judge refusing the application the Registrar shall also forward to the appellant a notice in form No. 7.”

Sub-rule (4) provides:

“(4).. If the appellant wishes to have an application or applications determined by the Full Court the appellant shall complete the notice in form No. 7 and return it to the registrar within 7 days of its receipt.”

.................. Those sub-rules have been complied with both by the Registry and by the appellant.  As I said before, the Form 7 has been returned and has not been withdrawn.  Sub-rule (5) then goes on to provide as follows:

“(5)If the appellant fails to return the completed form No. 7 within the prescribed time, refusal of the application or applications by such Judge shall be final.”

If the form is returned within the prescribed time, it does not follow, in my opinion, that the refusal by the single judge is not final, in the sense that it can be reopened by another single judge.  It is only not final in the sense that the rules allow the application to be further heard and dealt with by the Full Court.  Sub-rule (7) then goes on to provide:

“(7).. If the appellant desires that the said application or applications shall be determined by the Full Court, such application or applications shall be considered by the Full Court privately and the Full Court shall consider any summary of argument lodged by the appellant.”

Sub-rule (8) then goes on to describe what the Full Court can do after considering the matter in private.  I will not read the provisions of that rule, but it seems to me reasonably clear what is to happen under sub‑rule (7), and that appears to leave no room for consideration by the judge who refused leave, or by any other judge sitting alone, of the application whilst the Form 7 procedure is under way.  However, the cases like R v K and R v Earley to which I have already referred make it clear that when leave has been granted by a single judge and further grounds are sought to be added, not only should the amendment be dealt with by the single judge, but the question of whether the leave should include such amended grounds is also a matter for determination by the single judge.  That may therefore involve a further hearing - before, preferably, the same single judge, even though he or she has previously dealt with the application and granted it.

Is it different then if the leave has been refused?  There is, I concede, some merit in allowing the matter to be determined by a single judge as part of what the Full Court described in R v K as a screening procedure to protect the Court of Criminal Appeal and the parties from unnecessary applications and matters which need not properly come before it.  Whilst that appears to have some attraction, and to suggest that a single judge might reconsider such an application, I am inclined to the view that the provisions of Rule 15, to which I have referred, preclude that course once the request that the matter be dealt with by the Full Court has been made.  And so although I can grant leave to amend the application, it seems to me that any further consideration of the leave application must now be referred to and dealt with by the Full Court.

If I am wrong in that, and if in fact I do have power to reconsider the application, I would nevertheless refuse leave to appeal in this case, and it may assist the Full Court on its inevitable consideration of the matter if I say why.

The amended ground 1 merely particularises matters which were placed before Mullighan J and those grounds add nothing to the material that was before him.  I would not be persuaded to depart from his ruling merely by the specification of those particulars.

As to the new ground 2, it is a completely new ground and was not argued before Mullighan J.  However, it is put merely as an added reason as to why the sentence is manifestly excessive.

The applicant has also submitted an outline of argument, and although it is not specifically stated in the amended ground, I conclude that it is the desire of the applicant on the hearing of the appeal, if leave is granted, to lead fresh evidence in the form contained in an affidavit which has also been filed.

Dealing briefly with the international instruments which are referred to in the ground of appeal, it is conceded by Mr Mead in his outline that none of them have been formally incorporated into Australian domestic law.  He submits nevertheless that the courts “should bear in mind the principles which find expression in relevant international instruments”: Walsh v Department of Social Security (1996) 67 SASR 143 per Perry J at 147.

The affidavit of the appellant - which incidentally was sworn on 30 March - in support of this ground of the appeal, and being the evidence which I infer would be sought to be led on the hearing of the appeal, provides an outline of some of the conditions under which the appellant has been detained in E Division of Yatala Labour Prison since first being taken into custody and being remanded for the purpose of sentence, and in relation to the period of his sentence that he served prior to 30 March 1998.  The submissions on sentence were made on 30 January 1998, being the date on which he was taken into custody.  There was therefore no evidence of what he has experienced placed before the learned sentencing judge; nor could there have been.  In brief, the affidavit complains, amongst other things, of the fact that there have been days on which he has not been let out of his cell; the fact that he has been denied access to the prison library, which he requires to utilise for the purposes of a correspondence course in which he is enrolled; the fact that his cell is cramped and rudimentary and the fact that he has been permitted to shower only once every two to three days; and that the cell in which he has been placed he is required to share with another prisoner.  There are other matters complained of, including the fact that he claims that he has been denied access to fresh air whilst in his cell.

It is said that these conditions are not in conformity with the international treaty obligations which are referred to in ground 2 of the notice of appeal. 

In my opinion, the ground of appeal has little or no prospect of success.  First, so far as the leading of fresh evidence is concerned, if general conditions encountered by prisoners at Yatala in E Division or in any other division were relevant to the sentencing discretion, they are matters which could have been placed before the learned sentencing judge, in any event, before or at the time of submissions being made as to sentence.  It is not suggested that the conditions encountered by the applicant have been in any way discriminatory against him.  Indeed, the applicant deposes in his affidavit to the fact that similar conditions apply to between 120 and 150 other prisoners at Yatala.  So in that sense, it is hardly fresh evidence, except to the extent that it has been personally experienced by the applicant since the date of his sentence or sentencing submissions. 

But in my view, there are other reasons why the ground really has no prospect of success.  Reliance is placed upon the passage to which I referred in Walsh v Department of Social Security (supra).  That passage or that sentence must be read in the context in which Perry J wrote it.  His Honour was there dealing with an appeal on sentence from a magistrate involving an offence against Commonwealth law, namely, the Social Security Act 1991 (Cth). Section 16A(2) of the Commonwealth Crimes Act listed various matters which the court was required to take into account in determining the sentence to be passed.  One of those matters contained in subs(2) para (p) was “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”.  Having recited those provisions, his Honour then said in a passage which includes the sentence upon which Mr Mead relies:

“Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children.  Although such international instruments do not form part of Australian law,”

and he refers to Teoh’s case -

“they serve to underscore the importance of provisions such as s16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them.  So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s16A(2)(p) of the Act is clear and unambiguous in its terms.”

Therefore the phrase “while we should always bear in mind the principles which find expression in relevant international instruments” related particularly to the construction of the relevant provisions of the Crimes Act.  His Honour went on to say that it was not necessary in that case to have resort to that particular international obligation because the provisions of the Crimes Act were quite clear.

The use of international treaties to which Australia is a party in the construction of ambiguous provisions in statutes is well known.  It was effectively explained in The Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Teoh’s case also stands for the proposition that not only does an international treaty (which may not be incorporated into domestic law) have that effect in the construction of statutes, but may give rise to a legitimate expectation that administrative action, particularly by an executive government which has ratified the treaty, will be carried out or exercised consistently with the treaty.

Mr Mead’s argument, as I understand it, then goes on to say that it is suggested that the court should have regard to the standards prescribed in the instruments on which he relies as being a “relevant matter” for the purposes of s10 para (o) of the Criminal Law Sentencing Act 1988. That paragraph, of course, relates to one of the matters which a sentencing judge is required to take into account.

To apply the principles explained in Teoh’s case to the construction of s10 para (o) of the Criminal Law Sentencing Act is in my opinion to extend the principles of Teoh way beyond what Teoh’s case contemplates.  I have already said that it is not suggested that the applicant has been discriminated against in the conditions which he suffers in prison.  He says, indeed, in his affidavit, that many other prisoners are kept under the same conditions as he is.

The rights of prisoners in this State are to a large degree governed by the provisions of the Correctional Services Act 1982. The applicant’s treatment may or may not be consistent with the requirements of that Act. I make no comment about that. But there is nothing to suggest in the proceedings before me so far that there have been any breaches of that Act. But it is that Act and its administration which applies to all prisoners, not just to the applicant. International treaties may or may not have a bearing on how prison institutions are to be administered under that Act and how the provisions of that Act should be interpreted. Restrictions of a general nature which apply or which have the potential to apply to all prisoners are not matters which in my opinion come within para (o) of s10 of the Criminal Law Sentencing Act, except to the extent that they may have some peculiar effect on the individual relevant to his or her sentence - such as, for example, having some deleterious effect on his health in a way that others are not affected. But matters of general discipline or regulation are not in my opinion properly matters to be considered under para (o). Nor can the fact that they may be the subject of international treaty make them so as a matter of the proper construction of para (o) of s10. It seems to me that the principles of construction which relate to the use of international treaties can have no application to the proper interpretation of that paragraph. Neither can that fact in my opinion be relevant to the exercise of the sentencing discretion. Sentencing is not an administrative act such that Teoh’s case was concerned with.   Sentencing is an important judicial function to be exercised only in accordance with law and is not to be governed by any legitimate expectation which might be applicable to an administrative decision.

I therefore conclude that the applicant does not have an arguable case which would justify the granting of leave, even assuming that I have the power to reconsider that question.  However, as the matter is to go before the Full Court in any event, it will be ultimately for the Full Court to decide that question.

What I have said should not be taken as reflecting any view as to whether the various articles of the International Covenants of Civil and Political rights or the Standard Minimum Guidelines for the Treatment of Prisoners have been complied with or whether, as a matter of policy, they should be complied with or, indeed, whether any non‑compliance should in general terms have the effect of reducing sentences.

My conclusions as to my powers and whether I should grant leave are based solely on the application of South Australian domestic law and my view that, as a matter of law, the content of any treaties or international obligations cannot affect the applicant’s sentence, and therefore cannot be the subject of any successful appeal. 

For those reasons, the orders of the court will be:

1...... Leave to amend the notice of appeal in terms of the amended grounds of appeal filed on 7 April 1998.

2...... Leave to appeal refused.

I make the second order on the basis primarily that I believe I have no power to grant leave in the circumstances; but that if I did have power, I would still refuse leave in the matter.