Reg v Many

[1991] HCATrans 54

_In ~, AUSTl\..U.lA"lo!- -~)>_.._~._~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl37 of 1990

B e t w e e n -

THE QUEEN

Applicant

and

FREDERICK GLEN MANY

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

Many 1 27/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 FEBRUARY 1991, AT 2.56 PM

Copyright in the High Court of Australia

MR_R.O. BLANCH, QC:  May it please the Court, I appear with

my learned	friend, MR P.G. BERMAN, for the
applicant.	(instructed by S.E. O'Connor, Solicitor
for Public	Prosecutions)

MR M.L. SIDES, QC:  I appear, Your Honours, with my learned

friends, MR J. DORIS and MR P.J. PEARSALL, for the

respondent. (instructed by Forshaws)

MASON CJ:  Mr Blanch?

MR BLANCH:  May it please the Court. This is an application

for special leave to appeal against a decision of

the New South Wales Court of Criminal Appeal in

respect of a sentencing matter. I hand up an

outline of submissions, Your Honour.

MASON CJ: We have them, I think, Mr Blanch, unless you have

got a revised version that you are offering.

TOOHEY J:	18 February.
MR BLANCH:	I think, Your Honour, that it - I do not know

what version Your Honours have.	It may be
embarrassing.

MASON CJ: Quite different.

MR BLANCH: Quite different, yes. It may have been,

Your Honour, this was a case where it was sought to

comply with some proposed new rules and the - - -

MASON CJ: Well, if so, it is suggested that the proposed

new rules need revision.

MR BLANCH:  No, Your Honour, it only suggests that my

original outline needed revision.

As appears in ground 1 of the background, the

Court of Criminal Appeal in this case allowed the

appeal and imposed a sentence of eight years
six months expiring on 4 March 1995.	The previous

sentencing situation of the prisoner appears,

perhaps, best at page 19 of the appeal book where

in his remarks on sentence, the original sentencing

judge who imposed a sentence of 20 years pointed

out that the - to summarize that from the top of

page 19 - prisoner was serving 22 and a half years

from December 1978 with a non-parole period of

10 years from 4 November 1978. He was released

from prison on 19 July 1986 and these offences were

committed on 2 September 1986 so that the period

that he was at large was very small. That left a

balance outstanding on his parole of some seven

years and two months.

Many 2 27/2/91

The Court will see on page 19 that at the time

of imposing the sentence, the original sentencing judge revoked that parole which had the effect of calling into question against him the balance of

his parole of seven years and two months and that

was the sentence that he was then serving, leaving

aside the sentences for the offences that he

committed. The Court will then see that the

sentence imposed by the Court of Criminal Appeal

after that was a sentence of eight years and six

months commencing on 5 September 1986 which was, I

assume, the date of his rearrest after these
offences, that further sentence of the Court of

Criminal Appeal being totally concurrent with the balance of parole.

DAWSON J:	So what is the gap?
MR BLANCH:	On that basis, Your Honour, if one were to

assume that he would serve the full seven years and

two months balance of parole he does that

concurrent with the eight years and six months.

DAWSON J:	So it is one year four months?
MR BLANCH:	Yes.

DAWSON J: Additional effective sentence?

MR BLANCH:  Yes. On the other hand, there is a degree of

unfairness to him in saying that because it does

not necessarily mean when parole is revoked that

the prisoner goes back in gaol and is going to

serve the total of his balance. Obviously, he

would be entitled to remissions in respect of the

total balance.

I will not go through the facts, I have

briefly set them out on - - -

DAWSON J: But do we take remissions into account because

the sentence which was thought to be appropriate

for the other offences was the balance to be served

was seven years two months and should we take

remissions into account in looking at that?

MR BLANCH:  No, Your Honour. I am sorry, yes, the Court

must because of the change in the system in New

South Wales. The seven years and two months, as I

understand it, was redetermined as six years four

months and 14 days.

DAWSON J: So, really the discrepancy then -

MR BLANCH: Sorry, the six years four months and 14 days is

from 14/3/88.

Many 27/2/91

DAWSON J: That does not seem to quite square with what is

said at line 4 on page 19, Mr Blanch.

MR BLANCH:  Yes, I see what Your Honour - I am sorry, Your

Honour, in answering Justice Dawson's questions I

am relying on some information from the prison

authorities which does not appear in the papers,

but I am doing that because I do not want to do the
prisoner a disservice by maximizing the parole

period.

DAWSON J:  What I am really trying to find out is, what

extra time did he have to serve?

MR BLANCH: Serve as a result, yes. The latest information

that I had about that, Your Honour, would make it

longer than the figures would suggest, and it is

for that reason that I would like to give the Court

those figures. The redetermination as I have it is

six years four months and 14 days

from 14 March 1988.

TOOHEY J:	1988?
MR BLANCH:	Yes, Your Honour.

TOOHEY J: But we are talking about the non-parole period at

the moment.

MR BLANCH:  Yes, the balance of parole. It is the period

that he owed at the time - I mean, it is

complicated by two factors in this case, which

makes it impossible even with a detailed

understanding of the way the system works to work

it out, and that is that he started with a sentence

of 22 1/2 years from December 1978. However, it is

made up, the Court will see on page 18, of a number

of escapes from lawful custody, which means that he

has forfeited various remissions that he has earned

during the period of time, and to actually know

what he was due to serve you would need to know

exactly when the forfeitures were, how long he was

out of gaol, what period he was an escapee, what

period he owed when he went back and what

forfeitures there were.

The figures that I gave, of six years and four

months would expire on 27 July 1994 and that

compares with a sentence that the Court of Criminal

Appeal imposed of eight years six months which

expires on 4 March 1995. I can have those figures

rechecked because I do not - as I say, I am

concerned not to do him a disservice by minimizing

that extra period. The point that I would like to

make at this stage is that the effect of the order

of the Court of Criminal Appeal was to make the

sentence that they imposed concurrent with the

Many 4 27/2/91

balance of his parole and the balance of his parole

was a fairly substantial period.

DAWSON J:	The difference is less than a year, in effect.
MR BLANCH:	Yes, it could be, on those figures.

McHUGH J: Well, except the 22 1/2 year sentence would have

to be redetermined, would it not?

MR BLANCH:  Yes, Your Honour, they have in fact redetermined

it but it has to be redetermined in the context of

all the escapes and the periods of time that he

spent out of custody. It is one of those

situations where you really do need access to the

total gaol record and a computer to work it out.

DAWSON J:  But the sentence expiring on 27 July 1994 is the

redetermined sentence.

MR BLANCH:  Yes, that is as I understand it, Your Honour.

DAWSON J: That is the current position.

MR BLANCH:  As I understand it.

DAWSON J: That was redetermined at the time the Court of

Criminal Appeal imposed its sentence.

MR BLANCH:  Yes, although there is nothing in the judgment

of the Court of Criminal Appeal to indicate that

any advertence was had to that question and that is

not the question that we seek to raise here.

Although the effect of what has happened in the

Court of Criminal Appeal is an effect that we would

submit is the sort of effect that is very likely to

occur when a court goes about a sentencing process

in the way the Court of Criminal Appeal in New

South Wales went about the sentencing process. It

is on that basis that we submit that this is a

matter for special leave.

On page 2 of the outline the approach adopted

by the Court of Criminal Appeal appears. What the

Court of Criminal Appeal did was to note that

before the sentencing judge there had been some

evidence given that the respondent had given

assistance to the police but in his remarks on

sentence, the sentencing judge had not adverted to

that at all and it was therefore assumed in favour

of the respondent that that matter had been

overlooked. That was a situation in the Court of

Criminal Appeal that was conceded by the Crown and

because of that it was necessary for the Court of

Criminal Appeal to reassess the sentence.

Many 27/2/91

The court held that there was no necessary

nexus between the information or assistance given

by the respondent and the offences for which

sentence was being passed.

MASON CJ: Now, did the Crown contest that?

MR BLANCH: As far as I am aware, Your Honour, no. It was a

question that did not arise in the course of the

argument in the Court of Criminal Appeal. The

Crown, as can be seen from the judgment of the

Court of Criminal Appeal, submitted that the

original sentence that was imposed was less than

ought to have been imposed, but - - -

MASON CJ:  By reason of these matters not being taken into

account?

MR BLANCH:  No, Your Honour. The Crown, in effect, said

that the original sentence imposed by the

sentencing judge was lenient, although no Crown

appeal was lodged. The Crown, however, also

conceded that there had been assistance given by

the prisoner which apparently had not been taken

into account by the sentencing judge. I am not

aware that the Crown specifically raised the point

that the assistance should relate to the offence

for which sentence was being imposed.

McHUGH J: Well, at page 58 it is recorded in the Court of

Criminal Appeal:

The Crown, in its submissions to this

Court, concedes that the learned sentencing

Judge erred in not allowing of some discount for the assistanceg iven by the appellant to the authorities (lacking in detail as it was)

ttand in not explicitly referring to this

factor in his remarks on sentence".

MR BLANCH:  Yes, there is some ambiguity in that,

Your Honour, because there are two discounts

available to an informer. The first discount is a discount that we would concede is available to any

informer and that is that if he is an informer he

is going to have a worse time in gaol and

consequently should receive some special treatment

and is going to be entitled to a discount, because he is going to be held in segregation. The second

discount is the one that the argument is about.

That first discount, we do not argue with here

either. He is entitled to, what is referred to in

New South Wales, at least, as the Perez-Vargas

discount, and that is the discount that takes
account of the fact that a prisoner is going to

have a harder time in gaol, for reason of his

Many 6 27/2/91

health or the fact that he is an informer or a

juvenile et cetera.

My friend is showing me the Crown's written

submissions and it was conceded that the prisoner

is entitled to a discount, even if the assistance given was in relation to unconnected offences, so

that was a concession that was made by the Crown in

the Court of Criminal Appeal.

TOOHEY J: But do you mean the concession that bore on the

first of the discounts or the second?

MR BLANCH:  No, on the second, Your Honour. It was

submitted that it was appropriate to give a

discount in respect of information for an

unconnected offence, just because he was an

informer and as a bonus for being an informer.

TOOHEY J: But does that not suggest that what is under

challenge here is the quantum of the sentence fixed

by the Court of Criminal Appeal rather than any

question of principle?

MR BLANCH:  No, Your Honour, the question of principle that

I wish to raise is the mode of arriving at the
sentence - in fact, the submissions that appear in

No 3 in the outline of submissions - and it is, in

simple terms, that the way the Court of Criminal

Appeal went about it appears at page 78 of the

appeal book where they said:

In our opinion the preferable approach to that

task in a case where specific discounting

factors are raised for consideration is to

determine the sentence which would have been

imposed but for the operation of those

discounting factors and then to apply the
appropriate level of discount. That

appropriate level of discount in our view is

approximately one-third.

And then they go on to say: 

we consider we should take the appropriate

level of sentence, absent such discounting
factors, as the sentence imposed by the

learned sentencing Judge being a fixed term of

a little under thirteen years.

DAWSON J: Well, that reference to 13 years is a reference

to the statutory redetermination?

MR BLANCH:  Yes, Your Honour. And the point that we urge on

the Court for granting special leave is this, that

the way the Court of Criminal Appeal in New South

Wales dealt with this was to isolate the discount

Many 7 27/2/91

factor for an informer, treat it as a completely

separate and independent factor in the sentencing

process and by so doing they have isolated it and

exaggerated it and achieved an artificial sentence.

It is a matter that has been looked at particularly

in Victoria in the case of Young, (1990) - - -

DAWSON J: Before you go to the case, what do you say they

ought to have done?

MR BLANCH:  Your Honour, they ought to have adverted to the

fact that he was an informer as one of the factors

to be taken into account. They also would have

adverted to every other factor that was relevant in
the sentencing process and dealt with them all

together. In other words, you then sentence as the

courts have always sentenced and as the courts say

sentences should be imposed by taking all the

factors in a basket, putting them together and

coming out with the result, rather than embarking

on a calculation stage by stage - - -

DAWSON J: There is the instinctive synthesis theory?

MR BLANCH:  Yes, it has been called that, Your Honour. But

this case is a good example of the problems that

occur when that theory or practice in sentencing

does not pertain because the situation is this,

that the prisoner before the court could be a

person - an entirely different sort of person, a
person young, capable of rehabilitation with many

other factors of concern and a totally different not giving appropriate consideration to the other factors of sentencing which ought to be considered, deterrence.

percentage discount may be given, a totally
different package may come out at the end of it.

DAWSON J:  The trial judge did presumably and they just

accepted what the trial judge did for that purpose.

MR BLANCH: Well, Your Honour, that is, in our submission,

not the way that should work. It is not as simple

as arriving at a mathematical calculation.

DAWSON J: Why not? All that the trial judge was in error

about was not giving weight to the factor that this

man assisted the Crown. He was not alleged to be

in error in any other respect, was he?

MR BLANCH:  No, Your Honour, but it is our submission that

the Court of Criminal Appeal was in error by simply

accepting that and then giving a standard
percentage discount to the person as an informer.

It does not take account of the fact that there

Many 27/2/91

were other very considerable elements in this case

of specific and general deterrents and - - -

DAWSON J:	The trial judge had looked at all that.
MR BLANCH:	Your Honour, he had looked at it absent any

considerations as to this man being an informer and

it is inappropriate, in our submission, to take

that particular consideration in isolation from all

others and arrive at a percentage discount and then

simply apply it to the sentence.

TOOHEY J: Presumably because if you do you may in a given

case arrive at an entirely inadequate sentence.

MR BLANCH:	Yes, Your Honour.
TOOHEY J:	Then it is the complaint, I take it?
MR BLANCH:	Yes, Your Honour, and the result in the case is

merely an illustration of the principle that we

seek to bring before the Court. We are not simply

saying, as we could not say, that the result itself

is inadequate, and therefore we are seeking to

appeal, but it is a good illustration, in our

submission, of exactly how that works.

DAWSON J: So, you say the enormity of this man's offence

was such that really any assistance to the Crown

could not lessen, to any greater degree, the

gravity of what he did?

MR BLANCH:  Your Honour, that is a matter for specific

evaluation by the court but the court has to be

seen

DAWSON J: It had to do something for the purpose of the

exercise.

MR BLANCH:  Yes. The court has to be seen to be doing it.

The court has to be seen to be saying, "Well, here

is a man who has been serving an extremely long

period in gaol, who has come out and who has

committed this series of offences". The court

found in respect of him that he was a person who

was completely unrepentent. It was not as though -

the problem is isolated in this case because very

often it can be said that the fact the person is an

informer is an indicator of contrition, but the

court in this case specifically held that he was

not, that it was no indicator of contrition, that

he was not contrite. What was necessary for the

Court of Criminal Appeal to be doing and to be seen

to be doing in a case such as this was to be giving

to him the discount which must be given to an

informer but doing it be seen to be doing it in the

circumstances of saying, "We are giving to this

Many 9 27/2/91

informer who has got this record, who has committed

these offences, and we're taking those things
specifically into consideration at the same time as
we are working out what the discount he's entitled

to for being an informer".

DAWSON J:  How did the court work out that the appropriate

level of discount is approximately one-third?

MR BLANCH: That is difficult to say, Your Honour. In the

absence of an explanation as to that, it appears

that it is worked out on the basis of the sort of
information given by the prisoner. There is no

fixed percentage, of course, of discount for being

an informer and the court -

TOOHEY J:  Do you complain about the identification of a

percentage discount as such?

MR BLANCH:	No, not as such.
TOOHEY J:	Or it is a failure to weave a percentage somehow

into the overall sentencing process that you

complain of.

MR BLANCH:  Yes. The failure to arrive or to be seen to

have for exactly the same reason the sentencing

judge was in error; he may very well, but he did

not say that he was taking into account, in passing

sentence, that the person was an informer. The

Court of Criminal Appeal did not say that it was

arriving at a percentage discount factor bearing in

mind that they were dealing with this particular

accused in these circumstances - - -

DAWSON J: They did not say the other either. They just

said an appropriate level of discount of one-third.

They may have been doing either for all we know.

MR BLANCH: Yes, that is so, Your Honour.

MASON CJ:  What submission did the Crown make to the Court

of Criminal Appeal as to how it should go about

allowing a discount in this case?

MR BLANCH: Well, Your Honour, I think there was no

submission by the Crown at that stage because it

was conceded by the Crown that there would need to

be a discount because there had not been a discount

demonstrated by the sentencing judge. But the

question as to how the court would actually

structure its sentencing process did not arise and,

in fact, did not arise until after the court had

imposed a sentenced and come to its conclusion as

to the sentence. In other words there was no

opportunity to discuss this matter and it is not a

matter that ordinarily would be discussed. In fact

Many 10 27/2/91

it picks up on what I understand has been something

of a debate in Victoria on this matter and, in our

submission, is a good example of why those who, as
the Victorian Supreme Court has done, criticize

judges for adopting that sort of structured

approach can in fact fall into error and it is for

this very reason.

I understand what Your Honour says about the synthesis that pops out but, by the same token, in

arriving at that sentence the courts have always

given reasons and gone through the various stages

of reasoning for coming to a particular sentence.

In this case one would normally expect that that

would involve a statement that a discount needed to

be given to this particular informer but that it

needed to be given to him bearing in mind that he

was a person with a very bad record, who had been

in gaol for a long time, who had only been out of gaol for a period of six weeks, who had committed

this series of offences and was then being
sentenced for them. It is in that context that the

sentence ought to be passed.

The failure of the Court of Criminal Appeal to

do that gives rise to a sentence that then comes to

be a sentence where it is apparent that was has

happened is simply an acceptance of a particular

sentence and then a discount applied without any

explanation of or any reasons given for the

application of the discount to those circumstances.

Now, that, as I understand it, is precisely

the approach that the Victorian Supreme Court in

Young has criticized. Without going through - and

in my outline I have referred to particular pages

of Young, but Your Honour, in asking questions, has

taken me through a number of statements and a

number of the things that I have said are not

original. They are things that I have picked up

from the judgment of the Court of Criminal Appeal

in Young, except for the fact that at the bottom of

page 960 of (1990) VR at 951, the court said:

It is neither necessary nor desirable for

us to go further at the moment. It is

sufficient for us to observe that we can find

no warrant in authority or justification or

advantage from a practical point of view in

the adoption of an artificial process for

arriving at an appropriate sentence or any

process which unnecessarily limits further the

discretion of a sentencing judge. We think

that the adoption of such a process is

calculated to lead to error and injustice.

Until Parliament or the High Court indicates to the contrary we are clearly of the opinion

Many 11 27/2/91

that artificial processes or methods should

not be adopted in Victoria.

And the court said that the very adoption of those

process should itself be seen as an error. And it is our submission, with respect, that the Court of

Criminal Appeal in Victoria is right and the

adoption of the process, that two-stage process, is

an error and that is precisely what has occurred

here. The fact of the error is manifested in the

other circumstances.

I have referred also to Veen v Reg, (1987-88)

164 CLR 465. Just at 476 - I am sorry, there is no

point in reading that, it is a joint judgment of

the Court and there is just this phrase right at

the bottom:

The purposes -

of sentencing -

overlap and none of them can be considered in

isolation from the others when determining

what is an appropriate sentence in a

particular case.

And it is my submission that that is the

appropriate method of sentencing. It is the method

of sentencing that has always been adopted by the

courts. It is a method of sentencing that, in

general terms, is favourable to the accused, rather

than the court adopting a structured sentencing

approach where it becomes very difficult, for

example, to look at the fact that a person is young

and therefore is entitled to a percentage discount,

that the person has pleaded guilty and is entitled

to a percentage discount. If one were to apply

that approach, you could end up with a situation

where you owed some time.

GAUDRON J: But does that not all mean in the end in this

case that, according to your submission, there is a

sentence which is manifestly inadequate and that in

the circumstances it can be seen how that occurred,

namely by adopting this particular rate of

discount?

MR BLANCH:  I would accept what Your Honour says up to the

last point. The last part of what I would say to

Your Honour about that is that the manifest

inadequacy of the sentence imposed by the

Court of Criminal Appeal demonstrates the error in

their process of sentencing.

GAUDRON J: Yes, is it an error of principle?

Many 12 27/2/91

MR BLANCH:	Yes.
GAUDRON J:	Why?
MR BLANCH:	Because of Young's case and it is a matter of

some significance in terms of sentencing as well,

because if courts themselves were to adopt that as

a sentencing process, two stage, three stage, of

whatever form of sentencing, then it is precisely

the sort of situation where, as occurs such as in

Young's case or, in our submission, in this case.

It is just unfortunate that in this case the error

has occurred at the level of the Court of Criminal

Appeal, rather than before a sentencing judge where

the matter can be corrected other than by way of

special leave application, but the fact

nevertheless is, in our submission, that it is a

question of sentencing principle which bears on

every sentencing practice in Australia, and is

therefore a matter of enormous significance.

GAUDRON J: Could you make the same submission if, without

referring to one third being the appropriate level

of discount, the judgment proceeded to exactly the

same result as it did in this case? If the

sentence on page 78 of the appeal book at line 23

were taken out. What I am really putting to you,

Mr Blanch, is is this not an argument which says it

is wrong to be explicit in your reasoning?

MR BLANCH:  No, Your Honour, it is only wrong to be explicit

in your reasoning when the statements explaining

your reasoning demonstrate an error in your

reasoning.

GAUDRON J: Yes, but that is what I am questioning whether

it does. Whether you could make any argument at

all, other than manifestly unreasonable or
manifestly inadequate, if that sentence were

deleted?

MR BLANCH: Well, can I answer Your Honour by saying that is

a hypothetical question, because the sentence is

there.

TOOHEY J:  You surprise me with that answer because, even if

the sentence were deleted, it would be obvious what

the Court of Criminal Appeal had done, because it

took the original sentence as redetermined and

therefore however you view it, it is obvious what

discount must have been applied.

MR BLANCH:  Yes, that is so, Your Honour, and as I indicated

from page 78 here, in this passage they are, in

fact, doing what we submit is the error and what we

submit is the error is not applying a particular

discount. The error was taking all the other

Many 13 27/2/91

factors relevant to sentencing and putting them in a separate category and arriving at an appropriate sentence and then, separately, considering one of

the aspects of sentencing and there are many

aspects of sentence.

DAWSON J:  You see, you cannot really complain about a

process which was thought to arise from Veen (No 2)

as the Victorian Full Court does in Young's case,

because what was thought to arise from Veen (No 2)

was that you had to arrive at the proportionate

sentence, that is what the particular crime looked
at objectively required, and then look at the
various mitigating factors and reduce the sentence

accordingly and that was thought by the Full Court

to be an unnecessary mechanical process, but when

you are looking at a reduction in the sentence

which you would otherwise have imposed, because of

the co-operation of the applicant with the Crown,

you have to decide what the sentence you otherwise
would have imposed is. That does not mean in

arriving at an appropriate discount you do not look

at the circumstances of that offence, and we do not
know that the Court of Criminal Appeal did not
here, nothing that they said indicates to the

contrary.

MR BLANCH:  Your Honour, it is that proposition with which

we would take some exception in the sense

that - - -

DAWSON J:  All I am saying really ..... you have to have

really a two-stage approach when you are dealing

with, as you call it, a discount.

MR BLANCH:  Your Honour, the same thing must be said then

about every other factor that leads to a discount

in the sentencing process which may be age,

contrition, early plea of guilty and so forth

although all - - -

DAWSON J: Unless that comes into calculating the

proportionate offence and that is where all the
trouble lay because no one knew what you put in to

decide what the proportionate sentence was.

MR BLANCH:	Yes, Your Honour, but some of those things are subjective features and they are all factors that
entitle a person to, in general terms, a percentage
discount but if you take all the factors and put
them together and arrive at an appropriate sentence and you then, in an entirely artificial way, arrive
at a percentage discount factor or a discount for a
particular thing then you run the risk of exaggerating the importance of the particular
factor that you are talking about.  In this case,
clearly what the Court of Criminal Appeal has done,

Many 14 27/2/91

in our submission, is to exaggerate, out of all

proportion, the significance of the person being an

informer. Now, they ought to have taken the fact

that he was an informer into account but they ought

to have taken it into account in conjunction with

his criminal history and all of the other matters.

DAWSON J:  What do you say demonstrates that they

exaggerated the importance of his being an

informer?

MR BLANCH:  Your Honour, because they have treated it

entirely separately, entirely independently and

after they have arrived at the rest of the

sentence.

DAWSON J:  But they have come to the right figure by

treating it separately. Are you not really reduced
to what Justice Gaudron has put to you, the very

fact they adopted one-third demonstrates that they

went wrong, is that not really what you are saying?

MR BLANCH:  No, Your Honour, it is not, it is because of the

fact that they have taken a two-stage approach and they have looked at every other factor and then at the very end they have come to a single factor that

they have then overlaid the whole sentence with the

impact of the single factor that they have looked

at. They have not taken it into account in

conjunction with the other matters.

One other matter is pointed out about the percentage discount and that is this: that if you

apply a percentage discount of course it means that

you give to somebody who commits very serious

offences a greater discount in terms of actual

years than you give to someone else.

DAWSON J: Well, that is a different point. You say

applying a percentage discount is wrong as a matter

of principle?

MR BLANCH:	Yes.
McHUGH J:	I thought you said earlier you accepted you could

have a percentage discount?

MR BLANCH:  Yes, of course I do. You can in fact have a

percentage discount but the fact of the matter is

that if you do it in this way and if you - I am

sorry, if I said that in that sense I do not mean

to say it in the sense that I accept that you can

have a percentage discount by looking at all the

other factors and then arriving at a discount for
all the other matters put together and then

discount that and give a particular discount for

one other factor at the end of it and I suppose

Many 15 27/2/91

there is no way of having a percentage discount
unless you do that, and that is the error in it as

we would put it and one of the side effects of that

is that at the end of the day the person who is a

mass murderer gets a bigger discount than a burglar

for giving the same information, presumably.

McHUGH J: Well, one factor which would seem to support your

approach is the fact that it is not an objective

figure which applies to all informers but it must

depend upon the nature of the information given,

the motivation of the accused.

MR BLANCH:  Yes, indeed, that is right, Your Honour, yes.

That has to be seen. I would not submit that the

Court of Criminal Appeal here has erred in any way

in respect of that assessment because they heard

quite a lot of evidence, there was a lot of

material before them.

DAWSON J:  They cannot here have being saying the

appropriate level of discount in any case is always

approximately one-third.

MR BLANCH:  No, Your Honour, I do not think they are saying

that.

DAWSON J:  They must have said, "Looking at all the factors

in this case, we think in this case the appropriate

level is one-third".

MR BLANCH:	Yes.
DAWSON J:	How do you know they did not take into account

all the things that you speak about?

MR BLANCH: Because, Your Honour, they have not enunciated

their sentence in that way.

DAWSON J:  How did they arrive at one-third?

MR BLANCH:  They have arrived at their sentence,

Your Honour, on the basis of the information that

has been given and the assessment of that

information and the assessment of the prisoner.

TOOHEY J:  I rather thought your complaint, although you do

not seem to be enunciating it in this way, was that

the Court of Criminal Appeal simply took the
sentence which the sentencing judge had imposed and

attached to that a discount of one-third from which

it can be inferred that the Court of Criminal

Appeal did not itself go through a sentencing process, but that does not seem to be the way in

which you are putting it and there is one possible

objection to that argument, I think, namely what is

said by the Court of Criminal Appeal earlier on

Many 16 27/2/91

page 78, that the Crown was not appealing against

inadequacy and to impose a higher sentence and then

apply the discount might lead to a grievance,

although I would have thought that, in turn, could

be met by the argument that if one went through the

resentencing process, taking into account discount and everything else and if it lead inevitably to a higher sentence, well so be it.

MR BLANCH:  Yes, I do not think the Crown would have sought

in the circumstances of this case to achieve a
higher sentence and I would be positive that the

Crown would have, in the circumstances, eschewed any such argument.

TOOHEY J:  No, I really meant higher than the one which

resulted in this case.

MR BLANCH:  I am sorry, Your Honour, well certainly, that is

so, Your Honour.

Moving to page 3 of the outline, in the course of what the Court has put to me about that, Rushby

is simply a case dealing with the fact that it is

the duty of the court to impose, ih the end, an appropriate sentence and then I have dealt with point 4 already in that context.

Certainly the matter put to me by Your Honour

Justice Toohey is an argument that fits in with the argument that we are putting forward to the Court,

except for the fact that I would tend to the view
that the Court of Criminal Appeal in arriving at

the sentence has simply accepted a detailed

assessment of the material by the sentencing judge,

because the sentencing judge went into the whole

matter in very great detail, and the Court of

Criminal Appeal was simply assessing that that was

an appropriate sentence, and although it might be

said, in a sense, that they were abdicating a

responsibility of doing it themselves, none the

what they did to say that they were merely	less I think it would be a fairer assessment of
accepting that there was no error in what the sentencing judge had done - it was not suggested
that there was error in it by the Crown - and that
in the end result the situation was that they
simply then accepted that and then did what we do
object to, and that is quite clearly - and this is
perhaps the answer to Your Honour Justice Dawson's
statement about that - that quite clearly what they
were doing was drawing a line under every other
sentencing factor by accepting what the sentencing
judge had done and then applying their discount.
It is the answer to the suggestion, "How can I say
that they did not do all of that?", and I say that
they did not do it because clearly they accepted

Many 17 27/2/91

the ordinary sentencing process as being perfect,

apart from the discount for being an informer,

accepted that sentence and then completely

separately arrived at a percentage discount.

DAWSON J:  And what you are saying is that if they had taken

the circumstances of this offence into account, in

the process of arriving at the discount it would

have been a lesser discount?

MR BLANCH:	Yes.
DAWSON J:	But if you look at just the circumstances of the information that was given in isolation, you come
to - well, you do in this case - too great an
allowance?
MR BLANCH:	Yes, and the other proof of what I say about

that, in our submission, is simply the end result.

The end result speaks for itself in that context.

DAWSON J: Well, there is one difficulty about that, of

course, that the redetermination of sentences tends

to produce an artificial situation, does it not?

MR BLANCH: Well it does, yes, Your Honour, but it was for

that reason I was drawing some attention to the

revocation of parole and the parole situation, that

the error that manifests itself in the end, in our

submission, is clearly an indicator of the error

that occurred in the sentencing process.

GAUDRON J:  Now, it is absolutely implicit in your argument,

is it not, Mr Blanch, that the sentence, in the

end, is inadequate?

MR BLANCH:  I use the fact that the sentence is clearly

inadequate, Your Honour, as a means of proving the

point that I was attempting to prove to

Justice Dawson, that there was error of the kind I

am identifying in the process of this.

GAUDRON J: But what I want to know is that, error apart, it

is implicit in your submission, is it not, that any

sentence which is appropriately fixed must be

greater than that which was fixed by the Court of

Criminal Appeal?

MR BLANCH:  I would say that that is a correct proposition,

Your Honour. I do not see that it is necessary for

me to advance that proposition in support of this

argument, but I would say that that is correct.

GAUDRON J:  No, I just wish to know that that is necessarily

implied, that it is implicit in your argument that

no approach could result in this sentence.

Many 18 27/2/91

MR BLANCH:	No proper approach.
GAUDRON J:	No proper approach.
MR BLANCH:	And it is my submission that it has been easy to

identify what the error is because it appears on

the face of the reasoning of the court.

GAUDRON J: But it does raise an issue as to the double

jeopardy aspect of these proceedings.

MR BLANCH: That particular matter, Your Honour?

GAUDRON J: Yes.

MR BLANCH: Well, I do not seek to come here purely arguing -and I have made that clear at the beginning - I do not seek to come here to argue

that the sentence is - and I know I cannot come

here and argue that the sentence is manifestly

inadequate, as a means of special leave. I come

here to identify error that needs correcting.

GAUDRON J:  Do you come here to have either by this Court or

by remission to the Court of Criminal Appeal, the

sentence increased; not to have the error

acknowledged, but to have the sentence increased?

MR BLANCH:  I come to have the error acknowledged and to

have the Court impose a sentence in an appropriate

manner and I accept that the necessary result of

that would be that the sentence would be increased.

DAWSON J:	You would not be asking us to impose a sentence.
MR BLANCH:	No, Your Honour, I would ask the Court to remit

it back to the Court of Criminal Appeal. That

would, in my submission, certainly follow because it is the error that has led to what is in fact a

manifestly inadequate sentence.

GAUDRON J:	Can you point to any instance where that has been done by this Court before?
MR BLANCH:	No, Your Honour, I cannot but there is no - I am

sorry, perhaps my learned friend can. My friend

suggests Davern v Messel, but I tend to think that that went to a conviction point and not a sentence

point.

MASON CJ: That is my recollection.

MR BLANCH:  Yes. But it is not the sort of case where this

Court is concerned with a situation of restoring a
conviction that has been quashed or sending

somebody back to gaol who has been released from

gaol. There is an element of double jeopardy

Many 19 27/2/91

necessarily involved in all of that but that simply

goes to the question of the grant of special leave.

And, in our submission, the point involved in this is a matter of such significance as to warrant the grant of special leave and sending the matter back to the Court of Criminal Appeal.

McHUGH J: In Malvaso, Justice Deane and I said that an

application for special appeal by the Crown against
a sentence should only be entertained where there
is some point of principle involved and only in

exceptional circumstances.

MR BLANCH:  Yes, and I accept the test that there has to be

a point of principle in the matter, Your Honour,

and it is this point that I -

DAWSON J:  And that is whether it is a Crown appeal or an

appeal by the other side.

MR BLANCH:  Yes, Your Honour. The other - - -

GAUDRON J: But there is an additional hurdle for the Crown

appeal, is there not, in general terms?

MR BLANCH: Well, I am not sure. If Your Honour tells me

that there is - - -

McHUGH J: Double jeopardy, you mentioned it yourself.

MR BLANCH: Although, of course, the double jeopardy that -

well, yes, that is so, Your Honour.

GAUDRON J:  What are the exceptional circumstances of this

case?

MR BLANCH: Well, Your Honour, I have outlined them to

Your Honour. The fact that what has occurred here

in the Court of Criminal Appeal, in our submission,

is a totally erroneous method of calculating the

sentence.

GAUDRON J: Yes, but arrived at by a process which the Crown

apparently did not seek to challenge in the course

of proceedings in the Court of Criminal Appeal.

MR BLANCH: Arrived at by a process, Your Honour, that the

Crown could not challenge in the Court of Criminal

Appeal at this stage.

GAUDRON J: Well, it must have been plainly obvious that if

the then appellant's application for leave to

appeal was successful and the appeal was

successful, there was going to be a redetermination

of sentence. Now, either the ordinary course is

either to address or to specifically·re~erve your

Many 20 27/2/91

position to address on how the sentence should be

thereafter fixed.

MR BLANCH:  Your Honour, the Crown never does presume to

tell the court how to go about the sentencing

process.

GAUDRON J: 

I see. Well, if it does not presume to tell the court how to go about the sentencing process, how

does it presume to seek special leave to appeal on

the basis that it did not bother to tell the court

below that if it did what it did, it would be in

error?

MR BLANCH: 

Because the error occurs when the court passes sentence, Your Honour, and once the sentence is

passed, it is passed.

GAUDRON J: 

Which the Crown does not presume to tell the court how to do?

MR BLANCH: 

Yes. There is no indicator beforehand that the

court was proposing to embark on a sentencing
process that was, in our submission, infected with

error. The court went about its task of imposing a

sentence and then the error became apparent and the

Crown seeks to have it redressed.

GAUDRON J: 

So, there was no submission even as to the appropriate range of sentencing if the appeal were

allowed?

MR BLANCH: 

No, Your Honour.

GAUDRON J: 

The way in which the matter should be taken into

account, or the level of significance it might have

in view of the nature of the crime, or anything of

that nature?

MR BLANCH:  It is not the practice of the Crown in New South

Wales, Your Honour, to address on the quantum of

penalty unless - - -

McHUGH J: But this was an extraordinary case. After all,

it concerns a discount for an informer in relation

to unrelated offences. It is a matter that the

books do not give much guidance about and it is a

matter on which the court may well have expected,

or it certainly would have been assisted by,

submissions from the Crown.

MR BLANCH:  I have got no doubts in a general sense,

Your Honour, that assistance was given by the Crown

as would always be the case as to the matter, but

what is complained of here is the format of the

sentencing process of the court itself and the

court would not, except in the most extraordinary

Many 21 27/2/91

situation, seek the assistance of the Crown in the

way to formulate the sentence. It is the actual

formulation of the sentence and the arrival at the

sentence by the court itself, the way the court

went about doing it, and that is - - -

McHUGH J:  But did the Crown say this is just a factor to be

taken into account?

MR BLANCH:  I cannot answer that, Your Honour, but I expect

that would be the case and it was never put any

differently to that.

McHUGH J:  You see, the very use of the word "discount"

itself is almost an invitation to error.

MR BLANCH: That could be, Your Honour, but it is certainly

a shorthand terminology that is used for age,

contrition and a whole range of matters, but I

would not suggest that error arose just on that

basis. Obviously, the sentence that otherwise - if

it had been put in the terms of the sentence that

otherwise would have been arrived at by taking into

account the totality of the considerations which

need to be considered, it was obviously going to be

discounted by the fact that the person was an

informer as it would be discounted by the fact that

the person was young or had confessed at an early
stage.

I have identified the aspect of sentencing process, but I do urge on the Court the fact that

it was completely and absolutely beyond the Crown's

power to tell the court how to go about passing the

sentence itself or to give any assistance about

that in advance.

GAUDRON J: Well, I find that hard to accept in a context in

which the Crown is submitting that the sentence is

lenient, although not appealing.

MR BLANCH: Well, Your Honour, I am not submitting that the

sentence is lenient, as a basis -

GAUDRON J: In a Court of Criminal Appeal, the Crown

submitted, although it did not appeal on that

ground, that the sentence was lenient.

MR BLANCH: Well, that is simply, fairly obviously, to

ground a submission that any factors taken into

account in discounting the sentence or giving the

prisoner some benefit for being an informer, must

be seen against that background, in other words, an

invitation for the Court of Criminal Appeal to

itself reaccess the whole sentencing process and

assess it in that context. But as I said to

Justice Toohey, not that that would have ever

Many 22 27/2/91

grounded a submission by the Crown that the

sentence would have been increased, unless there
had been a Crown appeal against the inadequacy of

sentence, although that was not exactly what he was

putting to me.

The other matter in the outline of submission

is the argument that arises from unconnected

offences, but that would only become a matter of consideration if the Court were to grant special leave because it was a matter conceded by the Crown

in the Court of Criminal Appeal. If the Court were

to grant special leave in the case, it would be our

submission that in these cases where sentences are

being imposed for unconnected offences, that it is

not appropriate for there to be another form of discount. The problem with this particular area is that there has been a degree of ambiguity about it.

not appropriate for there to be - it is appropriate

for there to be, what I might call in shorthand, a

There are some English cases which have been

contradictory, although the English authority at

the moment is that it is appropriate to do it, and

in New South Wales and in Australia the authorities

have not specifically addressed the problem. Those

are the submissions, Your Honours.

McHUGH J: Mr Blanch, can I just ask you about this? In

Cartwright it is suggested that a court did give a

discount of something like 50 per cent.

MR BLANCH:	Yes, Your Honour.
McHUGH J:	Was that a discount in terms in Cartwright or was

that the end result?

MR BLANCH: Sorry, Your Honour, I cannot answer that

question immediately.

McHUGH J: Well, I am looking at 17 NSWLR 256 between

C and D. Mr Justice Hunt and

Mr Justice Badgery-Parker said:

We are satisfied that the applicant in

this case has established error on the part of
the judge in discounting the otherwise

appropriate sentence by only one-third.

MR BLANCH:	Yes.
McHUGH J:	So the Crown must have understood that it would be likely that the Court of Criminal Appeal in this
case would apply a discount.

MR BLANCH:  Yes. I do not know that it has ever been

regarded as being authority for the fact·that that

Many 23 27/2/91

is an appropriate method of going about doing it.

It may be, on a reading of that passage,

Your Honour, that that is the way it was looked at

in that particular case, but there is certainly no

authority that I know of that suggests that when

dealing with informers, the appropriate method of

sentencing is - - -

McHUGH J:  And down at E Their Honours say:

In our view, the appropriate discount was at

least one-half.

MR BLANCH:  Yes. The particular aspect of informer cases

that leads to that area is the fact that it is also

said that it is important to encourage informers,

and that in order to encourage informers it is

necessary not only to give a discount to but be

seen to be giving a discount in a special

situation. Our answer to that is that it is

necessary to give a discount to an informer for

being an informer but that can be said and made

clear to the informer that that is happening in the

course of the case, but it is not necessary to

invite an error in sentencing principle by doing it

at the end of the rest of the sentencing procedure.

Just as to the matter of the sentence to be

served, it is pointed out that the sentencing

judge, at page 19, identified the:

balance to serve of seven years, two months

and seven days -

at line 8 of page 19 and that is then redetermined

in accordance with the remission entitlement. May

it please the Court.

MASON CJ: Yes, thank you, Mr Blanch. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 4.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.25 PM:

MASON CJ:  The Court need not trouble you Mr Sides.

What I am about to say represents the view of

the majority of the Court. It is only in

exceptional circumstances that the Court will grant

Many 24 27/2/91

special leave to the Crown to appeal against
sentence. This is not a case in which the Crown is

able to show the existence of exceptional

circumstances. The Crown seeks special leave to

appeal on the ground that the Court of Criminal

Appeal demonstrated error in principle in stating:

We are called upon here to sentence

afresh. In our opinion the preferable
approach to that task in a case where specific
discounting factors are raised for

consideration is to determine the sentence

which would have been imposed but for the

operation of those discounting factors and
then to apply the appropriate level of

discount. That appropriate level of discount

in our view is approximately one-third.

The Crown submits that the Court of Criminal Appeal

should have viewed all the factors relevant to the

imposition of sentence in their totality rather

than allowing for a discount in isolation in
respect of the assistance given by the respondent
to the authorities in connection with the unrelated
offences. However, the Crown conceded in the Court

of Criminal Appeal:

that the learned sentencing Judge erred in not

allowing some discount for the assistance

given by the applicant to the authorities (lacking in detail as it was) "and in not

explicitly referring to this factor in his

remarks on sentence".

It appears that counsel for the Crown did not submit to the Court of Criminal Appeal that it

should take the approach for which it now contends,

yet it must have been apparent then that it was

very likely that the Court of Criminal Appeal would

allow a discount in the way it did, (see

R v Cartwright, (1989) 17 NSWLR 243, at page 256)

even if the amount of that discount remained

uncertain.

In these circumstances the case is not an

appropriate one for the grant of special leave to

appeal. The application is refused.

AT 4.28 PM THE MATTER WAS ADJOURNED SINE DIE

Many 25 27/2/91