R v William Kenneth Howlett, John William Myall and Christopher James Holland Nos. Sccrm-97-172, Sccrm-97-173, Sccrm-97-174 Judgment No. 6385 Number of Pages 12 Criminal Law

[1997] SASC 6385

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, LANDER AND BLEBY JJ

CATCHWORDS:

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by attorney-general or other crown law officer - defendants pleaded guilty to attempting to import a trafficable quantity of cannabis into Australia contrary to the Customs Act. Sentenced to imprisonment but released forthwith under (Cwth) Crimes Actss19 AC (1) and 20(1)(b) - application by DPP for leave to appeal against the sentences. Said to be manifestly inadequate on account of the decision to release - consideration of the principles contained in Everett v R and R v Osenkowski - error of principle established - Crown did not raise objection to suspension of the sentences at trial - whether this militated against the granting of leave - held that it did - leave refused. R v Osenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; R v Tait and Bartley (1979) 46 FLR
386, applied. R v Wilton (1981) 28 SASR 362, distinguished. R v Jamieson
(1988) 50 SASR 130; R v Malvaso and Ors (1989) 50 SASR 503; (1990) 156 LSJS
152; Malvaso v R (1989) 168 CLR 227; DPP v Fermaner (1994) 61 SASR 447, discussed. Police v Cadd and Ors (Unreported, Full Court (SA) 1 July 1997, Judgment Nos S6187.1 to S6187.5; Griffiths v R (1977) 137 CLR 293; Higgins v Fricker (Unreported, Full Court (SA) 25 September 1992, Judgment No S3631; R v Jermyn (1985) 2 NSWLR 194; Economedes (1990) 58 ACrR 466, considered.

HEARING:

ADELAIDE, 19 September 1997 (hearing), 3 October 1997 (decision)

#DATE 3:10:1997

#ADD 13:10:1997

Appearances:

Appellant R:

Counsel: Mr B R Martin QC with him Mr Edson

Solicitors: DPP (Cwlth)

Respondent Howlett:

Counsel: Mr S P White

Solicitors: O'Loughlins

Respondent Myall:

Counsel: Mrs M E Shaw QC

Solicitors: Mr D Y Sprod

Respondent Holland:

Counsel: Mr W P Bouc

Solicitors: Daenke O'donovan

ORDER: appeals dismissed.

COX J

The Commonwealth Director of Public Prosecutions seeks leave to appeal against sentences imposed in the District Court upon the three respondents following their conviction for having attempted, between August and October 1995, to import into Australia a trafficable amount of cannabis: contrary to s233B(1)(b) of the Customs Act 1901. One hundred grams of cannabis is a trafficable amount. The weight of the cannabis in question was a little over twenty-nine kilograms. The maximum penalty for such an offence is a fine of $4 000 or imprisonment for ten years or both.

The respondents are pilots. They have known each other for some years. They met through the aviation industry.

Early in 1995 a man named Kevandi, a Papua New Guinea national who had been a pupil pilot of Howlett's, wrote to Howlett with a proposal that he should send Howlett a quantity of cannabis, upwards of one hundred kilograms, with a view to its being sold for profit. Howlett agreed to join in the scheme. Later he enlisted the aid of Myall and then Holland. Myall met Kevandi on a couple of occasions in 1997, once during a business trip, and the details of the project were completed. On one occasion Kevandi flew down to Cairns for a meeting. These and other such planning arrangements, including laying out money for the purchase of the cannabis by Kevandi, cost thousands of dollars. Kevandi was supplied with a roll of black plastic sheeting in which to wrap the cannabis. The parties kept in touch by telephone. Kevandi said he hoped to obtain about 200 kg of cannabis. Meanwhile the respondents were using their knowledge as pilots to devise a strategy that would enable them to fly the cannabis into Australia without being caught. They obtained suitable maps and made enquiries about visas and about night flying equipment and the use of certain radio frequencies to avoid detection. They chose a route and a travelling time that would lessen the risk of detection. The plan was that they would charter an aircraft in Adelaide and that Myall and Holland would fly it to Mount Isa where it would be refuelled. Then Holland would take the plane on to Weipa for refuelling before flying to Balimo in Papua New Guinea. There he would pick up the load of cannabis from Kevandi and return to Australia. Myall, meanwhile, would be waiting for him with more fuel at a deserted air strip outside Mount Isa. In this way they would avoid any risk of a large cargo of cannabis being observed in the back of the plane at Mount Isa at any conventional refuelling point. Then Holland would return with the cannabis to Adelaide. So it was quite an elaborate and, of course, expensive plan.

By October 1995 everything was ready. Kevandi reported that he had one hundred and fifty kilograms of cannabis ready for collection. On Thursday, October 26 Myall and Holland duly set out from Adelaide for Mount Isa. Between their arrival that day in Mount Isa and the morning of Saturday, October 28, they refuelled the aircraft, hired a four-wheel drive vehicle, and acquired fuel containers. They filled these with aviation fuel and five of them, with a funnel, were loaded on to the plane, another four being later found in the four-wheel drive vehicle. They drove out to inspect a remote airstrip. It was Holland's intention to fly to Weipa the same day in time to refuel for the trip to Balimo, and to stay overnight in Weipa. The Weipa to Balimo leg was to have taken place in the early hours of Sunday morning. Holland would then be carrying the extra fuel obtained in Mount Isa, so that he could return with the cannabis to the remote airstrip out of Mount Isa where Myall would be waiting.

On Saturday morning Howlett, in Adelaide, received a call from Kevandi to say that there was a problem. The nature of the problem was not disclosed to the Court. Howlett eventually relayed the information to Myall and Holland at Mount Isa during the afternoon. They were prepared to stay on in Mount Isa until Monday if the load became available, but there was no point in Holland leaving for Weipa until he received an all clear. They decided to stay at Mount Isa on Saturday night, at least.

It was claimed by the respondents, through their counsel, that because of Kevandi's prevarication the three of them had decided to call the project off entirely late on the Saturday afternoon. Although that was doubted by counsel for the DPP, the question was never resolved by evidence, although his Honour in sentencing accepted that they had decided to abort the trip late on Saturday, October 28.

Kevandi was arrested in PNG on the morning of Sunday, October 29, and the cannabis was seized at Port Moresby (where Kevandi had left it in temporary storage) that same morning. At the time of the respondents' arrest, also on Sunday morning (Myall and Holland in Mount Isa and Howlett in Adelaide), they were not aware of the arrest of Kevandi or of the seizure of the cannabis in PNG. Kevandi was later imprisoned in PNG for his participation in the scheme.

When Myall was questioned by the police he answered some questions and declined to answer others. The other two men declined to be interviewed.

The respondents were at first charged in having conspired to import the cannabis into Australia. Later they agreed to plead guilty to the offence of attempting to import it.

The cannabis that was seized at Port Moresby weighed 29.29 kg. Kevandi had lied to the respondents about the quantity. It was of good quality. It consisted only of flowering heads. In the District Court Myall's counsel put its value in bulk at about $200 000, giving the four conspirators something like $50 000 each. Crown counsel submitted that $200 000 was very much at the lower end of the worth of the cannabis. There does not appear to have been any evidence on the subject.

Howlett was fifty-three when he came before the District Court this year. He owned an aircraft charter company and pilot school. At the time of the offence his business was in financial difficulties. He had no previous convictions and he submitted some character evidence.

Myall was fifty-five. He was active in community affairs. He had been given a suspended sentence in 1982 for increasing insolvency by rash and hazardous speculation, and in 1986 he was given another suspended sentence for receiving. He appears to be a man of considerable means.

Holland was thirty-nine with no prior convictions. He had previously had a good character. He said that he was having a stressful financial time when he joined the scheme.

The learned sentencing Judge noted that the relevant penalty section of the Customs Act did not distinguish between an attempt and a completed offence. He thought it highly unlikely that the respondents would offend again in any way at all. It was the first offence for Howlett and Holland, and the first offence of this nature for Myall. All were deeply regretful and had gone about rehabilitating themselves since their arrest. He considered it significant that they had decided to abort the plan before they were arrested - they were to be given credit for that. There was also a sense in which the criminal proceedings themselves had been a punishment to the respondents. For those reasons he sentenced each respondent to imprisonment for two years and six months but, pursuant to ss19AC(1) and 20(1)(b) of the Crimes Act, ordered that he be released forthwith upon his entering into a bond in the sum of $1 000 to be of good behaviour for three years. He also fined each man $2 000.

The Crown has sought leave to appeal against the order that the respondents be released forthwith. It does not complain of the length of the prison term but says that the terms of the recognizance release order make the sentence in each case manifestly inadequate and appealable.

The Crown's case on the merits of the appeal is very strong indeed. This Court has made it plain that suspension of a prison sentence is quite inappropriate in the case of a serious drug offence involving substantial commercial dealings. See R v Taddeo (1993) 67 A Crim R 338 at 340 and R v Mangelsdorf (1995) 66 SASR 60 at 68 and 70-71. The same principle applies where any question arises of ordering that a defendant be released forthwith under a recognizance release order has been made pursuant to the Crimes Act (C/w). The present offence involved a large quantity of cannabis worth at least $200 000. The crime was carefully planned and the only motive for it was monetary gain. Detection of drug offences is usually painstaking and difficult, sometimes dangerous, and in this case must have involved a great deal of time and expense. There were no redeeming features at all so far as the crime itself was concerned. The respondents abandoned their attempt, but only because they did not get confirmation of the arrangements from the supplier and without that it was obviously unwise to proceed. The learned Judge properly took into account the pleas of guilty and other matters personal to the respondents but he allowed those factors to overwhelm the sentencing process altogether. It is in serious drug offences of this kind, involving careful planning and assessment of risk, that the element of general deterrence in the sentence is likely to be most effective, so that it should usually predominate over those factors that are personal to the defendant. Cf The Queen v Tait (1979) 46 FLR 386, 399; R v Warner (1989) 94 FLR 420. The aspect of deterrence will affect the head sentence particularly, but in the case of serious crimes the gravity of the offence and the aspect of deterrence will also influence the non-parole or minimum detention period. The general deterrent effect of this sentence, in light of the immediate release order, would have been very small indeed. Having in mind the very large rewards that can be made from drug dealing on a large scale, it is hardly too much to say that this sentence is more likely to encourage others minded to act similarly to take the risk of detection. In my opinion the learned sentencing Judge's discretion miscarried, so much so that the intervention of this Court would be justified in accordance with the appeal principles established in such cases as R v Osenkowski (1982) 30 SASR 212 and R v Everett (1994) 181 CLR 295. The sentence is so manifestly inadequate that to allow it to stand would compromise the Court's sentencing standards and send quite the wrong message to the community. Were it not for the matter I am about to mention, I would grant leave and allow the appeal and require the respondents to serve a substantial proportion of their sentences in prison before release.

The respondents, however, in effect challenge the right of the Crown to appeal against the immediate release order on the ground that it did not oppose the making of such an order when the matter was before the District Court. I have said that the respondents were originally charged with conspiracy. There were discussions between their respective solicitors and the Adelaide office of the Commonwealth Director of Public Prosecutions as a result of which the respondents agreed to plead guilty instead to a charge of attempting to import the cannabis. In the course of those discussions Howlett's solicitors, while acknowledging that a prison sentence was inevitable, made it clear that counsel would be asking the Judge to order that Howlett be released forthwith. They wished to know what the Crown's attitude would be to that application. In a letter of 29 April 1997 from the DPP's Adelaide office to the solicitors, there was included the following passage -

"I confirm that the prosecution attitude on penalty remains as follows:

- that a term of imprisonment is the only appropriate penalty

- that a discretion to sentence to imprisonment but direct by order the release forthwith of a person on a bond exists and is available to the sentencing judge

- that it is for the defendant to establish rare and exceptional circumstances enabling the discretion to be exercised."

When the matter came before the sentencing Judge on June 23, Howlett's counsel acknowledged that imprisonment was the only appropriate penalty for the offence but he pressed the Judge to release his client forthwith. He referred to the negotiations with the DPP and said - "The DPP accept that your Honour has the discretion for release forthwith in circumstances where, as the DPP say, if your Honour accepts that there are rare and exceptional circumstances. We perhaps say it doesn't have to be rare and exceptional, but nevertheless we say the circumstances and all of the mitigating factors in this case are rare and exceptional.

The DPP recognise that this is a matter where your Honour has the discretion and it's for us to satisfy your Honour that it's appropriate to exercise that discretion. Of course, the cases recognise that even though this is a serious offence, there are occasions where it is appropriate for release forthwith."

Counsel for other respondents made similar applications, placing some reliance on the DPP's letter of April 22. One of them quoted the passage I have set out above. Afterwards counsel for the Crown, in the course of her submissions to the Judge, said - "It has been the attitude of the Director throughout this matter that the appropriate penalty is a sentence of imprisonment. The Director acknowledges that the discretion in Commonwealth legislative terms to order immediate release, the equivalent [of a] suspended sentence, of course exists. In that light, in my submission it can only be exercised in what are rare and exceptional circumstances. What constitutes those circumstances was discussed in some detail by our Court of Criminal Appeal in the matter of R v Warner (1989) 94 FLR 420. I have a copy for your Honour if that is of assistance.

Before passing on from that, I might refer once again to the case of Mangelsdorf (1995) 66 SASR 60 which ... again gives some assistance as to what are the appropriate circumstances for consideration of the awarding of a suspended sentence."

The learned Judge did not make any comment about this. He does not appear to have said that he was thinking of immediate release. He took time to consider the matter. On June 24 he sentenced the respondents and his sentence included the immediate release order.

The Queen v Wilton (1981) 28 SASR 362 was a Crown appeal against a suspended sentence of imprisonment for housebreaking and larceny. The Crown submitted that the sentence should not have been suspended. In the course of his judgment King CJ, with whom Mitchell and Williams JJ agreed, said -

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley
(1979) 24 ALR 473 by "double jeopardy". In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of a prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General." (at 367-8)

In that case counsel for the defendant made no submission seeking suspension and the Judge did not canvass the possibility with counsel. Counsel for the prosecution thus had little or no warning that suspension was contemplated. The Judge did make some indirect remark on the subject but King CJ thought that it was unreasonable to expect prosecuting counsel to appreciate the significance of the remark and to have asked to be heard in opposition to a non-custodial sentence. The appeal Court considered that suspension in the circumstances was wrong in principle. It allowed the appeal and quashed the suspension order.

That passage from the judgment of King CJ was quoted with approval in the joint judgment of Deane and McHugh JJ in Malvaso v The Queen (1989) 168 CLR
227. However, the decision in that case and the joint judgment of Mason CJ and Brennan and Gaudron JJ are not inconsistent with the Crown being permitted to appeal against a suspended sentence where it has expressly "stood mute" in the sentencing court, that is, has told the judge that it did not propose to make a submission one way or the other on the subject.

Everett v The Queen (1994) 181 CLR 295 took the matter a step further. A judge in Tasmania had given the appellants suspended sentences for the crime of aggravated armed robbery. The Attorney-General appealed against the sentences and the Court of Criminal Appeal, by majority, granted leave to appeal, upheld the appeal and substituted new sentences which required the appellants to serve part of their sentences in prison. The High Court granted the appellants special leave to appeal and set aside the orders of the intermediate Court. It thus restored the original sentence. The joint judgment of Brennan, Deane, Dawson and Gaudron JJ noted that the sentencing Judge had made it quite clear that he was contemplating making orders that the unexpired portion of any sentences of imprisonment be suspended, and that counsel who appeared for the Crown made no suggestion whatsoever that such an order would be beyond the proper scope of his Honour's sentencing discretion in the circumstances of the case. Indeed, a submission by the Crown on a related matter could be taken as an indication to the contrary. The joint judgment went on to quote with approval the comments of King CJ in Wilton which I have set out above, as being applicable to the application for, and weighing heavily against the grant of, leave to appeal to the Crown in the Everett case. The joint judgment said, at 303 -

"Those comments were made in a judgment disposing of an actual appeal after leave had been granted and, as the third sentence makes clear, are directed to a case where an order suspending the whole of the unexpired part of a term of imprisonment has been made with the result that the offender was entitled to go free. They should be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion. Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave ."

Those words are applicable to the present appeal. The Crown had abundant notice of the respondents' application for an immediate release order and, while the learned Judge did not indicate any view of his own to counsel, I do not think that it could fairly be said that the Crown was not on notice that there was a real possibility that such an order might be made. In those circumstances it was not open to the Crown to refrain from making a submission on the subject - which is what its counsel studiously did - and at the same time keep open its option to appeal in the event of an immediate release order being made. Such a course is not, generally speaking, available to it.

There was a time when the Crown took no part at all in the sentencing process, taking the view that this was the Judge's responsibility, not the prosecution's. If it thought that the sentence was appealably wrong, it would seek leave to appeal. It was an improvement on that stand when the Crown adopted the practice of making brief submissions on the facts and the law, particularly by way of correction or qualification to the defence submissions, but again without expressing any view about the actual sentence. Cf R v Tait and Bartley (1979) 24 ALR 473, Higgins v French (Full Court, 25 September 1992, unreported). Those days have now passed. The Crown cannot now take a neutral stand on an active issue as to the possible suspension of a sentence of imprisonment, or even remain silent on the matter, without imperilling its right to seek leave to appeal in the event of the subsequent sentence in that respect disclosing an appealable error. The question now is whether there are factors working for the Crown in the present case that bring it within the exception ("generally speaking") that the joint judgment in Everett - see also McHugh J's reasons at 307 - envisages.

The judgments in Wilton and Everett do not state, in terms or by way of examples, in what circumstances the Crown will be permitted to appeal notwithstanding its non-compliance with the procedural requirement. In Wilton the Court of Criminal Appeal allowed the Crown's appeal to go forward because the prosecution had little or no warning that suspension was contemplated. I do not think that this exception can assist the Crown here. Although the Judge does not seem to have expressed any view about immediate release during counsel's submissions - indeed, he may not have had a view then - the subject was at the forefront of the submissions. It was forcefully expressed and was documented by the prosecutor's own letter. Immediate release was plainly a subject with which on the authorities prosecuting counsel had to deal, and she made a submission about it. It does not avail the Crown to say that it simply did not express a view on the merits of the question. The learned sentencing Judge did not proceed on an erroneous view of the law or the facts. He did not say that he would not have ordered immediate release had the Crown opposed it, but nothing can be inferred from that; he may or may not be accustomed to making that sort of public analysis of his decision-making. No doubt it could be argued that an exception should be made where a prosecutor has been misled, or perhaps where the judge's error is so outrageous that the appeal court feels compelled in the public interest to allow the appeal notwithstanding the Crown's failure to oppose an immediate release order in the court below. However, we are bound to apply the words and spirit of Wilton and Everett and, while I consider that the learned Judge's sentencing discretion seriously miscarried here, I do not think that we could treat the situation as exceptional on that account without greatly eroding the general rule by which we are bound. Indeed, Mr Martin QC did not suggest that we could. He confined his argument in this respect to a submission that the rule laid down in Wilton and Everett did not compromise the Crown in the event of its merely "standing mute" as in Malvaso. Clearly that is not now the law.

For these reasons, leave to appeal must be refused in each case.

LANDER J

I have had the advantage of reading in draft the reasons of Cox J and I agree in all respects with what His Honour has said.

It is a matter of regret that leave to appeal must be refused in this matter. There is no doubt in my mind that each of the appellants ought to have been called upon to serve an immediate and substantial term of imprisonment.

This crime was a very serious one which involved substantial planning and which, if carried to fruition, would have enriched each of the respondents significantly.

The aspects of general deterrence required that each of the respondents be sentenced to an immediate term of imprisonment and the failure to so order, in my opinion, was indicative of error on the part of the learned sentencing Judge.

But for the Crown's failure to draw to the attention of the learned sentencing Judge that the submissions put by counsel for each of the respondents could not be accepted because to be accepted would involve a wrongful exercise of the sentencing discretion, I would have allowed leave to appeal and ordered each of the respondents to serve an immediate term of imprisonment.

However, I agree with Cox J that in the circumstances, as they unfolded before the learned sentencing Judge, the Crown is now precluded from arguing that the sentencing discretion miscarried.

BLEBY J

This being an application for leave by the Commonwealth DPP for leave to appeal against sentence, the approach must be governed by the principles set out in cases such as R v Osenkowski (1982) 30 SASR 212 and Everett v R (1994) 181 CLR 295. Those principles were recently affirmed by a majority of this Court in relation to appeals from Magistrates' Courts where leave was not required: Police v Cadd & Others (Unreported, Full Court (SA) 1 July 1997, Judgment Nos S6187.1 to S6187.5). Lander J and I who dissented on that point did not doubt the applicability of the principles to appeals by leave. We merely considered that they did not have application to appeals from Magistrates' Courts as of right.

In Osenkowski it was said that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. King CJ went on to say (at p213):

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

In Everett v R (supra) the majority, relying on Griffiths v R (1977) 137 CLR 293, considered that such appeals should be limited to establishing a matter of principle. The majority nevertheless held that that should be understood as encompassing "what is necessary to avoid the kind of manifest inadequacy in sentencing standards which Barwick CJ (in Griffiths) saw as constituting 'error in point of principle'."

I agree with Cox J that the sentences imposed by the learned sentencing judge were so inadequate as to justify the granting of leave to the prosecution to appeal against them. In other words, this constituted an error of principle by the learned sentencing judge. Put another way, the circumstances of the offence and of the offenders were such that, as a matter of principle, the learned sentencing judge could not properly have exercised his discretion to order that the appellants be released forthwith upon entering into a bond.

Strong as the case may have been, however, regrettably this Court nevertheless is constrained from granting leave by other relevant principles relating to prosecution appeals.

I take as my starting point what the Full Court of the Federal Court said in R v Tait and Bartley (1979) 46 FLR 386 at 389:

"The Crown has been said not to be concerned with sentence (see eg Lawrence J in Paprika Ltd v Board of Trade [1944] 1 KB 327 at 332), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court."

That passage has been expressly approved by this Court in R v Wilton (1981) 28 SASR 362 at 368; Higgins v Fricker (Unreported, Full Court (SA), 25 September 1992, Judgment No S.3631); by the Court of Criminal Appeal in New South Wales: see R v Jermyn (1985) 2 NSWLR 194; by the Court of Criminal Appeal in Victoria: see Economedes (1990) 58 A Cr R 466 at 470; and by the High Court in Everett v R (supra) at 302-303, 307.

In R v Wilton (supra) the Crown was permitted on appeal to raise the question of the propriety of the suspension of a sentence in circumstances where counsel for the Crown had not, before the sentencing judge, raised any objection to suspension, but it was held that the Crown had little or no warning in the circumstances of that case that suspension was being contemplated. In those circumstances it is distinguishable from this case where defence counsel had made it quite clear that that, in effect, was what they were seeking, and that they were doing so because of the concession contained in a letter from the prosecutor to which I will later refer.

In R v Jamieson (1988) 50 SASR 130, King CJ, by way of obiter dicta in a sentence appeal by the Attorney-General, referred to the proper function of prosecuting counsel to bring to the attention of the sentencing judge any relevant sentencing principles, including a submission, if such is the prosecutor's view, that a suspended sentence would be inappropriate. His Honour then said at p133:

"Moreover, if the prosecution takes the view that the circumstances of a crime are so serious that questions of general deterrence must take priority over rehabilitation and result in a severe sentence or a long non-parole period or both, then I think it is proper for counsel to make that submission to the sentencing judge. Indeed, if those submissions are not made at the proper time in an appropriate case before the sentencing judge, I think it is not going too far to say that they are unlikely to be received favourably subsequently by an appellate court."

The court there felt constrained not to increase a head sentence because the prosecutor in sentencing submissions was disposed to accept a head sentence of the order imposed. For reasons which will become apparent, this case is somewhat analogous to Jamieson.

In R v Malvaso & Ors (1989) 50 SASR 503, when it first came before the Full Court, the prison sentence had been suspended in circumstances where the prosecution had agreed to "stand mute" on the question of suspension of the sentence. The prosecution's appeal was against the length of the sentence but not its suspension. The Court held that the sentence was manifestly inadequate, and it was then for the Full Court to exercise its own discretion which it did, by increasing the sentence and not suspending it. It considered that the Crown's agreement to "stand mute" was only one factor to be taken into account and could not bind the Court in determining a proper sentence. The appeal to the High Court ((1989) 168 CLR 227) was allowed on the footing that the Full Court had failed to appreciate that leave had not been given, and the approach to leave on a prosecution appeal in those circumstances required different considerations from those in fact applied by the Full Court. In their joint judgment Mason CJ, Brennan and Gaudron JJ at 233 agreed that the Court's sentencing discretion could not be fettered by a plea bargaining agreement of that nature. Those members of the Court went on to say however:

"Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General's application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given. In this case, the Court did not consider that question and no order giving leave to appeal was made."

The High Court, having allowed the appeal, remitted the matter to this Court for further consideration of whether leave to appeal should be given. In R v Malvaso (1990) 156 LSJS 152, King CJ would have granted leave to appeal and would have increased the sentence without suspension. Cox and Perry JJ considered that leave to appeal should be refused, but for different reasons - Cox J for the reason that the grounds of appeal for which leave was sought were limited to the length of sentence, and in the circumstances of a leave application, suspension could not be considered, much as His Honour would wish to have been able to do so. Perry J likewise felt constrained to consider the application on the limited grounds of appeal, which did not seek to challenge the suspension. Whilst His Honour would not have felt constrained by any agreement in the exercise of the sentencing discretion, in the circumstances then prevailing, the limited grounds on which leave was sought did not justify the granting of leave.

What can be seen from the series of Malvaso cases is the contrasting effects of prosecution attitudes in an original hearing or in an appeal on the one hand, and in an application for leave on the other.

The strict ratio decidendi of Everett v R (supra) is that where the sentencing judge makes clear that he is contemplating making orders for suspension of custodial sentences, and the Crown makes no suggestion that such an order would be beyond the proper scope of the sentencing discretion in the circumstances of the case, the Crown should be denied leave to appeal against the suspension of the sentence. That was not this case, as the learned sentencing judge did not indicate what his intentions might be. There can be no doubt, however, that he was urged by counsel for the appellants effectively to suspend the sentence by ordering their release forthwith upon their entering into a bond. It must also be acknowledged that all members of the Court in Everett considered that that principle relating to Crown appeals should be applied so that "generally speaking" leave to appeal against sentence should not be granted to the Crown if the Crown "was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion." (supra at 303). McHugh J (at 307) referred to the Crown's concurrence with or failure to object to "a proposed course of action by the sentencing judge", but when speaking generally about concessions made or concurrences expressed in the course of litigation said:

"As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did."

Finally, in DPP v Fermaner (1994) 61 SASR 447, although the Court allowed a prosecution appeal by increasing a sentence, the Court nevertheless felt constrained not to remove an order for suspension, having regard to the fact that the prosecution had adopted a "neutral attitude" on the question. In reluctantly not intervening on the question of suspension Matheson J, who delivered the leading judgment, relied on remarks of Crockett J in R v Economedes (supra) at 469-470 which adopted the passage from Tait (supra) to which I have already referred, in circumstances where counsel in that case, when asked, said that the prosecution did not seek to make any submissions on the question of suspension.

In this case, the DPP wrote to the solicitors for one of the appellants, following lengthy negotiations about withdrawing the charge of conspiracy and entering a plea to attempting to import a prohibited import. The letter was dated 29 April 1997, and so far as is relevant read as follows: "I confirm that the prosecution attitude on penalty remains as follows:
* that a term of imprisonment is the only appropriate penalty
* that a discretion to sentence to imprisonment but direct by order the release forthwith of a person on a bond exists and is available to the sentencing judge
* that it is for the defendant to establish rare and exceptional circumstances enabling the discretion to be exercised" .

Whilst the passage I have emphasised is capable of indicating that the DPP was conceding, in the circumstances of that case, that the sentencing judge had a discretion to release forthwith on a bond, in my opinion it should not be construed as an acknowledgment that under any circumstances which might be revealed, that was an option still open. The letter made it clear that it was for the defendants to establish "rare and exceptional circumstances" which would enable the discretion to be exercised. The DPP did not then know, and could not then have known, what circumstances might be advanced by the appellants in support of their submission for leniency. It therefore remained open for the DPP to say, in the course of sentencing submissions, that upon the facts relied on the circumstances were not rare and exceptional, and that accordingly the option of release was not available or within the range of sentencing options.

The letter was referred to, and relied upon, by counsel for the appellants in making their submissions on penalty. Counsel for the DPP said:

"It has been the attitude of the director throughout this matter that the appropriate penalty is a sentence of imprisonment. The director acknowledges that the discretion in Commonwealth legislative terms to order immediate release, the equivalent suspended sentence, of course exists. In that light, in my submission it can only be exercised in what are rare and exceptional circumstances."

She then referred, without elaboration, to cases which might assist in determining whether circumstances were rare and exceptional. At no stage was it suggested that the circumstances before the Court did not meet the "rare and exceptional" test.

The learned sentencing judge was therefore in a position where, in the face of strong submissions in favour of immediate release put by the appellants, he had a concession from the prosecutor that release forthwith was an option available to him and within the limits of his sentencing discretion. Although the sentencing judge did not indicate whether he was contemplating immediate release, it is clear that that is what he was being asked to do and what he was being required to consider. In that sense it is barely distinguishable from Everett (supra). However, as R v Tait and Bartley (supra) and the many cases which have approved it have shown, the Crown is under a duty to assist the Court to avoid appealable error. In allowing the contents of the letter to stand and to be repeated without qualification, the learned sentencing judge was led into an error of principle in ordering immediate release where it was plainly unwarranted. The DPP now seeks to have that error of principle corrected. Indeed, in order to obtain leave it must, consistent with the principles relating to Crown appeals against sentences generally, be able to demonstrate error of principle in the sense in which the cases have discussed that phrase. To make that submission now is inconsistent with the attitude taken before the learned sentence judge.

It follows that this court really has no option but to refuse leave to appeal. To my mind this is an unsatisfactory result, but the weight of authority would seem to allow no alternative. The rule by which we are required to act seems to have as its foundation the protection of a convicted person against a situation of double jeopardy - a risk of being taken into custody where the convicted person has already faced and been relieved of that prospect. I am not sure that that principle is not outweighed by a greater public interest in ensuring that criminals are properly sentenced, with immediate custodial sentences where proper sentencing principles require it. The cases illustrate that in the public interest a sentencing judge cannot be bound by an arrangement reached between prosecutor and accused. However, an appeal court may well be, where the sentencing discretion miscarries.

I do not suggest that the attitude of a prosecutor should be irrelevant in determining an application for leave to appeal. It should be but one of the factors to be considered, but not an overwhelming one. Relaxation of the present rule would still enable the sentencing discretion to be exercised afresh in the light of whatever further material might be considered relevant, so that the defendant would not be deprived of an opportunity to meet the proper case against him. However, until a superior court or the legislature intervenes, those in the position of the appellants must be afforded the advantage of the inadequate sentence.