Riccord v The Queen

[1997] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S65 of 1997

B e t w e e n -

JAMES EDWARD RICCORD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 1997, AT 10.38 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the Court, I appear with MR M.P. PODLESKA for the applicant.  (instructed by Pigott Stinson Stuart Thom)

MR C.P. O’DONNELL:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN CJ:   Yes, Mr Bellanto.

MR BELLANTO:   May it please the Court.  An important anchor in our sentencing process is the doctrine of precedent and uniformity of sentencing.  Subjectivity and unpredictability of sentences are often seen as flaws in this process.  The community, the profession and sentencing judges are entitled to have confidence that a penalty imposed by an appellate criminal court, which marks out the lower end of a sentencing range, can be applied in an analogous case without the sentencing judge falling into appellable error.  This raises a matter of general importance in the administration of criminal justice.

Another way of putting the principle, your Honours, is that when an appellate court in a criminal appeal determines that it will not follow a previous sentencing decision in analogous circumstances, it should clearly say so and explain why.  In the present application, until the Court of Criminal Appeal decides that Chaloner is not at the lower end of the sentencing range in cases such as the present, a sentencing judge who follows Chaloner cannot be said to have erred.

The present application has thrown up for consideration by this Court two conflicting decisions of the court below which require resolution for the maintenance of uniformity and consistency of sentencing.  The judgment of the court below, in allowing the Crown appeal, was premised upon two significant errors which also require consideration by this Court and the intervention by this Court to remedy a particular injustice to the applicant. 

If I can move directly to those two errors, your Honours, which I can pass over relatively quickly.  The first error can be found in the application book at page 45 line 55 and page 46 line 1.  That is where the court below said that in the sentencing judge’s reasoning his Honour made “no reference to the objective seriousness of the case”.  The applicant dealt with that point in the application book at page 60 line 29 to line 45 and his Honour the sentencing judge dealt with it at page 35 line 40 and his Honour said on this point:

I have taken into consideration all those matters set out in s 16 of the Act -

and section 16 of course enumerates the matters that a sentencing court is required to take into account in matters such as this.  One of those matters was the nature and circumstances of the offence.

TOOHEY J:   It is not suggested, I think, that a judge has to go through a sort of check list, as it were, and tick off every matter expressly, but often the reasons for sentence will expose the failure to have regard to certain considerations such as the seriousness of the offence.

MR BELLANTO:   Of course, but when his Honour expressly states that he has taken into account all matters in the Crimes Act relative to sentencing, one can only assume that an experienced sentencing judge, as his Honour Judge Gibson is - he has been on the Bench for 10 years and a former senior Crown Prosecutor - he would have taken into account the first matter in section 16 which refers to the objective seriousness of the offence.  So that we say that the Court of Criminal Appeal erred in finding that his Honour did not take those matters into account, when his Honour expressly said that he did by referring to section 16 of the - sorry, section 26 of the Act.  So that is the first error we point to.

The second error is in the lower court’s decision at page 46 line 8 when the Court said:

no reference is made to the consideration of general deterrence, which is of particular significance in relation to an offence of this character.

Again, his Honour the sentencing judge at page 35 line 32 expressly referred to this question when his Honour said:

No doubt one has to bear in mind the deterrent factor, not only on him, but on other people as well.

Again, we point out that that is the second significant error that occurred in the judgment of the court below which had an obviously important impact on the decision of the court below.  Because it was those two factors that the court pointed to and adopted, in a sense, the Crown’s submissions on those two points, which premised the court’s determination to allow the Crown appeal.  In both respects, we say the court erred in a significant respect.  So, on those two points alone, there has occurred a significant miscarriage of justice affecting the applicant in those two particular instances.

If I can now move to the question of general importance, the question can be posed this way.  Can a sentencing judge fall into appellable error in the imposition of a sentence if he or she follows a decision of an appellate court imposed in analogous circumstances when such decision has not been overruled or declared not to be followed as relevant to contemporary standards or circumstances.  Your Honours, the applicant ‑ ‑ ‑

HAYNE J:   Whether that point arises depends upon the accuracy of the analogy which you seeks to draw with Chaloner, does it not?

MR BELLANTO:   Yes, it does.

HAYNE J:   And Chaloner was a man who had a significant psychological history which was one of the matters that was taken into account in the disposition of Chaloner.

MR BELLANTO:   Yes, your Honour.

HAYNE J:   Is this applicant in like case?

MR BELLANTO:   Worse, your Honour, with respect.  This applicant has a psychiatric problem, diagnosed as having a major depressive illness, and your Honours will find that at application book page 21 line 37 and page 22 line 12.  That is in the report of Dr O’Sullivan.  In addition, the applicant has a handicapped wife who is suffering from a condition known as cerebella dystrophy which affects her speech and co-ordination.  We draw the distinction.  Your Honour Justice Hayne referred to a psychological problem with respect to Chaloner, but we elevate the condition of this applicant to a major psychiatric condition which ‑ ‑ ‑

HAYNE J:   At the time of his offending?

MR BELLANTO:   Yes, your Honour.  Your Honour will see, if I can just answer your Honour Justice Hayne, at page 22 line 12 Dr O’Sullivan said:

Firstly, Mr Riccord has a significant psychiatric illness.

That is the third line of the second paragraph on that page.  Then, if I can take your Honours back to page 21 line 37, and I quote:

His diagnosis at that time was Major Depressive Illness with melancholic features.

Then that picks up what is referred to in the second paragraph line 25 where there was a history of depression “over a period of some 12 to 18 months” noted by Dr Arthur.  So that in answer to your Honour Justice Hayne, we say that the condition of this applicant is more serious, in terms of his mental state, than the case of Chaloner.

TOOHEY J:   Mr Bellanto, I am not sure precisely how you use Chaloner.  Do you use it as enunciating principles which in a sense dictate that the Crown appeal should have been rejected or that it offers, to use your own words, an analogy which suggests that the sentence imposed in the present case was too high?  I ask you that because one could understand the Crown appeal might well have failed, but it did not fail, and having not failed, what is it about the decision of the Court of Criminal Appeal that would attract a grant of special leave in this case?

MR BELLANTO:   In Chaloner at page 375, your Honour, the President set out, as a matter of principle, we would say, the lower end of the sentencing range in cases such as Chaloner and in cases such as the present.

BRENNAN CJ:   That cannot be a question of principle, surely.

MR BELLANTO:   The principle is, your Honour, that if an appellate court on the same facts, or very similar facts for the purposes of sentencing, does not follow Chaloner, then it creates uncertainty in the process of sentencing generally because what has happened here is the applicant has been sentenced retrospectively.  The sentencing judge here followed Chaloner, and he followed Chaloner because he understood it was a decision of an appellate court in very similar circumstances.  Now, it was later decided that his Honour was wrong, but it was decided his Honour was wrong without reasons having been given and in circumstances that created for the applicant an injustice.

Now, in answer to your Honour Justice Toohey we say two things:  that Chaloner does set out principle.  It sets out an important principle of sentencing and it marks out a lower end of a sentencing discretion and that if that is not to be followed or accepted by another decision of the court below, then it should be clearly spelt out if that is the case and why it is the case.  Because what we have now, we have a state of uncertainty for the purposes of sentencing where one judge may choose to follow Chaloner in the knowledge that it has not been overruled, there has been no pronouncement in the court below that is is no longer applicable to contemporary standards or circumstances, and another judge may choose to follow Riccord.  Now, there is then the difficulty that there are two cases or decisions of the court below on similar facts.  That is a matter that really should not be allowed to continue because it does create the problem that I indicated initially, that is uncertainty in the area of sentencing.

TOOHEY J:   If you look at the judgment of the President at page 375 of the report, and it is almost exactly halfway down, the paragraph that begins “The only way”, in so far as there is a principle to be extracted from Chaloner, that might well be the principle and it speaks of:

custodial sentences are normally to be imposed in circumstances such as the present, it is equally the duty of the judge to consider whether,.....some features of the case warrant a non-custodial sentence.

And so on.  But it emphasises, not surprisingly, that the sentencing discretion remains to be exercised in each case.  Now, apart from pointing to a similarity of facts, can you get more out of Chaloner than that?

MR BELLANTO:   We can, because what follows from Chaloner is a state of uncertainty in the law in two decisions of the court below.  It is important for the profession, for the community and for sentencing judges to know where the parameters are for the purposes of sentencing.  That is a matter that we say really should be cleared up.

BRENNAN CJ:   That is a matter which almost classically belongs to the Court of Criminal Appeal.

MR BELLANTO:   The Court of Criminal Appeal, we say, had the opportunity of clarifying it in the decision below but chose not to do so, chose not to refer to Chaloner in any way.  Now, the Crown’s submissions assume that Chaloner is still good law but choose to distinguish Chaloner in circumstances that we say are not apposite.  But the difficulty that has now evolved is that the court below had the opportunity to clear it up and did not and it now, we say, falls upon this Court to make a pronouncement in accordance with the submissions that we make.  The product of what has occurred is that, as I mentioned, the applicant has been sentenced retrospectively in the circumstances of this case, whereas it should be the other way around.  One should know in advance what the parameters are so that the community can understand what the sentencing options are, so the profession can advise their clients what the sentencing range is, and so sentencing judges can know what the parameters are for the purposes of sentencing.

I do not think I need to go into the factual minutiae of Chaloner and the present case to emphasise that we say Chaloner is very much on all fours with the present matter and, in fact, there are features of Chaloner which do not require the mitigating considerations that this case does for the purposes of distinguishing the two.

BRENNAN CJ:   You require an extension of time, do you, Mr Bellanto, for the filing of the special leave application?

MR BELLANTO:   Yes, thank you for that, your Honour.  I would ask for that in the circumstances.  They are set out in the application book in the affidavit of Mr Salier at page 52.  What in fact happened was that the judgment of the court below was not available at the time specified by the rule and we seek an order that compliance with Order 69A rule 3(1) be dispensed with.  I think the ultimate difficulty was ‑ it was 6 days late and that Mr Salier’s affidavit explains why.  It is page 52, the affidavit of Mr Salier, and the difficulty arose because the judgment of the court below was not available and, in fact, on the last day for filing Mr Salier served a draft notice of appeal on the Crown and it was made subject to the obtaining of the judgment of the court below.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Bellanto.  We need not trouble you, Mr O’Donnell.

Although counsel for the applicant has drawn attention to some misapprehensions by the Court of Criminal Appeal as to the remarks of the sentencing judge, the case does not involve any question of sentencing principle which requires consideration by this Court.  At the highest, the case involves a possible omission to give sufficient weight to an earlier decision on sentence by the Court of Criminal Appeal.  That raises no question which invokes the intervention of this Court.  If time were extended for the filing of the application for special leave, special leave would be refused.  It is sufficient in this case to refuse the application to extend time.

MR BELLANTO:   If the Court pleases.

AT 10.57 AM THE MATTER WAS CONCLUDED