Roberts v The Queen

[2000] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 1999

B e t w e e n -

ARTHUR REGINALD ROBERTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 12.43 PM

Copyright in the High Court of Australia

MR L.M. LEVY:   May it please the Court, I appear on behalf of the applicant.  (instructed by Pryles & Defteros)

MR D.J. BUGG, QC:   May it please the Court, I appear with my learned friend, MR H.G. DEMBO, on behalf of the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

McHUGH J:   Mr Levy.

MR LEVY:   On behalf of the applicant, it is submitted that the sentencing principle of parity has been violated in this case.  The question to be determined is whether the court below was entitled to sentence the applicant according to the prevailing range of sentences at the time of sentencing as opposed to those that were applicable at the time of the commission of the offence.  By failing to sentence the applicant ‑ ‑ ‑

McHUGH J:   Was this argument based on some economic analysis of law that the accused may have been deterred from his course of conduct if he had known that he was likely to get a higher sentence than those that were being imposed as at the time?

MR LEVY:   General deterrence, your Honour, and specific deterrence, of course, is not ignored and it was a relevant fact there before the Court of Criminal Appeal.  Your Honour would have seen his Honour Justice Ipp at page 61 of the application book talked about the prevailing range of sentences that was applicable and his Honour said that it was:

appropriate for Judges who sentence drug offenders to have regard to the prevailing range of sentences laid down in judgments of this Court –

with particular reference, his Honour said, to the principles of “general deterrence”.  But it is not simply a case, your Honours, in my submission, of saying that if the applicant had known what he was likely to receive at the time of the commission of the offences, he would have been deterred.

In my submission, your Honours, the parity argument is applicable here, because what is submitted is that the applicant was entitled to be treated as like offenders, an issue that your Honour has canvassed to some degree this morning in the matter of Krakouer, the decision, of course, being his Honour Justice Kirby in Postiglione, the wider interpretation of the parity principle being applicable in accordance with his Honour’s reasoning and also that of her Honour Justice Gaudron in Siganto, where both her Honour Justice Gaudron and earlier his Honour Justice Kirby took the view that it was appropriate to expand upon the parity principle as between like offenders or like offences and not restricting it simply to those of co-offenders.

In my submission to your Honours, the fact that there may be changes in society, and indeed changes in community attitudes, may give rise to the need for higher penalties, but this should not impact upon the proper penalty applicable when the offence was committed at a time pre‑dating that changing in attitude.

McHUGH J:   But your argument would extend the doctrine of parity beyond its present confines.

MR LEVY:   Yes, your Honour, it would extend it.  So that it would be appropriate, in my submission, to have a look at sentences applicable at the time of the commission of the offence across the broad spectrum, and that would not simply even, in my submission, restrict it to jurisdictions, especially in cases such as this where it is a Commonwealth ‑ ‑ ‑

McHUGH J:   But it would lead to enormous practical difficulties.  Could a situation ever arise where the court would be able to increase sentences, except prospectively, as if it was a legislature?  In other words, every time the court had to deal with a case, by hypothesis, it would be dealing with events which occurred before the time when it sentenced.  So it would be legislating for the future.  It would be saying, in effect, “As from now on, anybody who commits this offence is going to get an increased sentence”.  It does not sound like a proper approach of the judiciary.

MR LEVY:   No, your Honour.  The core, in my submission, is the moral culpability of the offender at the time of the offence, and that can never be ignored, even if, in fact, there are changes in the legislation which may reduce or increase penalties at a later stage.  In my submission, the court cannot lose sight of the offender’s moral culpability when applying the parity principle even if, for example, in one of the cases referred to on the list of the respondent’s authorities, Burnett, where there had indeed been a change in community attitudes, but, in my submission to your Honours, it is not simply a case of seeing what the community change in attitude is.  It is more important to view that changing community attitude in light of the offender’s criminal conduct at the time of the commission of the offence.

In this particular case, of course, the applicant had been convicted for offences that were committed between 1993 and 1995.  There was a marked change of attitude of the Court of Criminal Appeal in Western Australia to offences involving ecstasy.  The applicant was not sentenced until October 1998.

McHUGH J:   But do you not have another difficulty as well in this particular case, because did not Justice Ipp say that even if your arguments had been upheld, he considered that an appropriate sentence would still have been substantially in excess of the 15 years and he thought that your client was fortunate indeed to receive the sentence which he did.

MR LEVY:   Yes, indeed, your Honour.

McHUGH J:   Well, that hardly makes this case a suitable vehicle to raise the question you wish to raise.

MR LEVY:   Your Honour would have seen Justice Wallwork took a different view to that of Justice Ipp and would have reduced the sentence, so we had, in the Court of Appeal, a divergence of opinion.  I accept his Honour Justice Ipp took the view that the applicant, on his view, had been treated somewhat lightly.  The point of appeal that was before the court there which is not raised here was, I concede, the reason that his Honour Justice Wallwork took a view that the sentence should have been reduced in the Court of Criminal Appeal.  But, in my submission to your Honours, the difficulty is compounded by the fact that the principle of parity, especially for Commonwealth offences, has a divergent application as between States in the Court of Criminal Appeal.  Since Darwell in Western Australia, the court has taken the attitude that ecstasy-type offences are in the higher range of offences whereas other States, such as New South Wales and Victoria, still apply ecstasy as being a mid-range drug.  So, the parity principle, in my submission, is an important aspect in issue here, where you have a divergence of application of sentencing principles involving the drug commonly known as MDMA or ecstasy.

McHUGH J:   Well, Darwell was decided in 1997, was it not?  These offences are alleged to have taken place in 1995.

MR LEVY:   Yes, your Honour.  Darwell was decided at a time, something like two years, after the conclusion of the commission of the applicant’s offences, the conclusion being April 1995, and the applicant not being dealt with until 1998.  There was some argument before the Court of Criminal Appeal and, in fact, before the learned sentencing judge that the delay in sentencing was not wholly or significantly attributable to the applicant himself.  There had in the intervening period been a lengthy period where the applicant had, in fact, been unrepresented between 1997 and 1998.  When he was in fact dealt with by the District Court in Western Australia, the applicant was not represented.  So he had lost the benefit of having been dealt with according to the range of sentences pre-dating Darwell and it is that error, in my submission to the Court, that calls into play the parity principle as between ‑ ‑ ‑

McHUGH J:   Mr Levy, it is far from clear, is it not, that the judge approached the matter on the basis that the range had changed.  Did he not say anything more than Darwell was one of the factors that led him to impose the sentence that he did?

MR LEVY:   If your Honour has a look at page 41 of the application book, where the learned sentencing judge gave reasons, commencing at line 4, his Honour Judge Blaxell said:

It has been submitted on your behalf that it would be wrong to sentence you in accordance with current patterns of sentencing given that the trend towards firming up occurred after your arrest.  I fully understand the submission, have given it careful consideration, but in the end I find that I am unable to accept it.  The reality is that the courts previously lacked a full appreciation of the effects of ecstasy and for that reason sentences prior to 1995 tended to be too light.  Now that better knowledge has been gained, the sentences imposed must reflect the appropriate level of seriousness that ecstasy represents and accordingly it is the firmed-up penalties that must apply.

In my submission, what his Honour was clearly doing was accepting that the knowledge that had been acquired since Darwell ‑ ‑ ‑

McHUGH J:   I think you are right, yes.

MR LEVY:   - - - was the reason.  So it is not simply the issue raised by his Honour Justice Ipp and, in this case, it is submitted that that point further led the Court of Criminal Appeal into error and the applicable sentences were those which were applicable at the time of the commission of the offence.  If your Honours please.

McHUGH J:   Thank you, Mr Levy.  We need not trouble you, Mr Bugg.

The Court is of the view that there is no reason to doubt the correctness of the sentence imposed on the applicant.  In those circumstances, the application for special leave to appeal is refused.

Call the next matter.

AT 12.55 PM THE MATTER WAS CONCLUDED