Ross and Anor v The Queen

[2001] HCATrans 412

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P94 of 2000

B e t w e e n -

GARY BRENDAN ROSS and DOMINIC MICHAEL VAN DE WORP

Applicants

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 2.15 PM

Copyright in the High Court of Australia

MS C.S. AMSDEN:   May it please the Court, I appear for both applicants.  (instructed by Legal Aid Western Australia)

MR R.E. COCK, QC:  If the Court pleases, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

MS AMSDEN:   This application for special leave is about the unfairness that resulted from procedural arrangements that effectively denied the two young applicants the opportunity to be present when a co‑offender presented a version of events that attributed greater culpability to them.

GAUDRON J:   But that is something of a red herring, is it not, Ms Amsden?  It was held by the sentencing judge, was it not, that the other person, Watson’s, culpability was greater than theirs?

MS AMSDEN:   That is correct.  It was held that the most culpable offender being Watson, who was the person who received the suspended sentence, was then distinguished in his circumstances by both the first Court of Criminal Appeal and the second Court of Criminal Appeal on the basis of the version of events that had been presented in the absence of the applicants.  My submission – and it is based on the material in the application book – is that that offended the basic right that an accused person has to confront an accuser and to test their evidence.  That would be unusual on a plea of guilty, but again this was an unusual procedure because counsel acting for Watson called the offender, Watson, to give evidence.  The offender, Watson, had not participated in a videotaped record of interview and there was no version of the facts as he related them to the court before 1 November.  That is when the proceedings took place in the absence of the applicants.  So the applicants had no notice that greater culpability would be attributed to either of them.

GAUDRON J:   At that stage greater culpability was attributed to Watson, was it not?

MS AMSDEN:   Not according to the version of the events that was given by both Watson and his counsel.  There were also several other ‑ ‑ ‑

KIRBY J:   I think Justice Miller said that there was greater culpability in Watson.

MS AMSDEN:   He said there was greater culpability in Watson and he imposed initially the three‑year sentence.  But there were several points in the proceedings that took place, and I would specifically draw your Honours’ attention to perhaps pages 76 and 77 in the application book which provide the best examples.  When Watson was called to give evidence, specifically his counsel asked him:

What did they tell you?”

That appears at line 39 on page 76.  At about line 42 is:

What did they tell you about getting the money from these other guys, as they put it?

It then goes over the page to the top of page 77:

Did they tell you anything about their financial circumstances or their living circumstances –

and then at line 30 it goes on to say:

What did he say about that?

The information that was given by Watson under oath was not able to be tested by either of the applicants.

HAYNE J:   What happens if you get leave?  If it goes back to the Court of Criminal Appeal, upon what version of facts is the matter to be considered by the Court of Criminal Appeal?  We have, do we not, two versions of what happened, one given with your clients not present, one given with your clients present?  What version of facts does the Court of Criminal Appeal act on?

MS AMSDEN:   I would have thought that the Court of Criminal Appeal would have to act on the version that was most favourable to the applicants.

HAYNE J:   Why would they do that?  Why would they have to do that?

MS AMSDEN:   Because the version given by both applicants was consistent with the videotaped record of interview that they gave when they were first arrested.  So they had maintained a consistent version of the events from the time they were interviewed by the police through to entering the plea of guilty on the expedited committal procedure and accepting the statement of material facts.  Watson, on the other hand, had not been interviewed by the police.  He declined to participate in a videotaped record of interview and the very first time the very different version that he gave came before the court was on 1 November.

That version differed significantly from the statement of material facts to which he had pleaded guilty in the Magistrates Court.  It differed in his saying that he did not know the gun was loaded and it differed in his saying the circumstances in which he came into possession of the gun.  So my respectful submission would be that the Court of Criminal Appeal in the case of the applicants accepted much of the version of events and the culpability that would have been disputed by the applicants.

GAUDRON J:   What difference does it make?  I am having trouble following this, Ms Amsden.  Your clients’ version of events, if accepted, might result in Watson, if things were all fresh, not getting a suspended sentence.  But your clients made admissions, they stand by those admissions, so I really do not see what difference it makes in this case that they could not test Watson’s version.

MS AMSDEN:   With respect, your Honour, the version given by Ross was significantly different because he said that it was Watson who produced the gun and it was certainly Watson who was judged to be the primary transgressor.

GAUDRON J:   And he was sentenced on that basis.

MS AMSDEN:   He was sentenced on that basis but the Court of Criminal Appeal on Watson’s appeal accepted that there was greater culpability to be attributed to both Ross and Van de Worp.

GAUDRON J:   Again, what difference does that make?  The Court of Criminal Appeal did not increase their sentences, left the sentences that were imposed on their version of events, which was apparently accepted by the sentencing judge.

HAYNE J:   Because no error was identified.

MS AMSDEN:   With respect, your Honour, my submission is that if the first Court of Criminal Appeal in Watson identified the error being that the learned sentencing judge did not give proper consideration to the suspension of a sentence, the same factors applied in respect of both applicants.  I say that because technically both applicants had no criminal record.  Ross had a previous spent conviction.  Van de Worp had no prior convictions whatsoever.  They were approximately the same age, they came from secure and stable family environments ‑ ‑ ‑

HAYNE J:   But the fundamental question for the Court of Criminal Appeal in considering your clients’ appeal was:  was there specific error shown or was the sentence manifestly excessive?  Was it contended on behalf of these two applicants below that there was either specific error or manifest excess?

MS AMSDEN:   It was contended that there was a specific error.

HAYNE J:   What was the specific error?

MS AMSDEN:   The specific error was that the sentencing judge erred in failing to exercise his discretion making an order under section 76 suspending the term of imprisonment.  The reason for that is the decision of the Court of Criminal Appeal that had sat on Watson’s circumstances and come to the conclusion that the sentencing judge did not fully consider the power to suspend the sentence.  It was picked up by Mr Justice ‑ ‑ ‑

HAYNE J:   It does not sound to me to be a terribly sound basis of appellate intervention.  It sounds to me to be more a case of resentencing.  But interpret what the Court of Criminal Appeal did in the first case as saying that the sentencing judge had no option but to suspend the sentence.  Your case comes to:  if that is right for Watson, it has to be right for these men.  Is that not the nub of it?

MS AMSDEN:   With respect, the court ‑ ‑ ‑

HAYNE J:   Because these men are no worse than Watson at least.

MS AMSDEN:   That is correct.

KIRBY J:   In the view of Justice Miller, I think, less bad.  At least he seemed to think Watson was the more serious.

MS AMSDEN:   Yes, he identified ‑ ‑ ‑

HAYNE J:   So the Court of Criminal Appeal says that three men who go armed with a loaded shotgun and with a knife have to be dealt with by a suspended sentence.  That is what they held in Watson and you come along, not surprisingly, saying, “Well, if it’s good enough for Watson, it’s good enough for my people”.  That is the nub of it, is it not?

MS AMSDEN:   I would take your Honours to page 168.

KIRBY J:   Why do you not say “Yes” to his Honour’s question?

MS AMSDEN:   Yes.

HAYNE J:   For once there is no knife in the napkin, Ms Amsden.

KIRBY J:   Counsel are unduly suspicious of us.

HAYNE J:   I cannot imagine why.

MS AMSDEN:   I would take your Honours to what Mr Justice Sheller said.  He is a judge who was sitting on our Court of Criminal Appeal, having come from New South Wales, I believe.

HAYNE J:   We will not hold that against him.

MS AMSDEN:   He did say at paragraph 131 at page 168:

Again, with due respect it appears to me that no sufficient consideration was given to circumstances other than the seriousness of the offence in determining whether or not the court should suspend the sentence.

That is as relevant to the two applicants as it was to the applicant, Watson, because the only consideration that Mr Justice Miller appeared to give was that the offences were too serious to suspend.  He did not appear to go through any of the other criteria.

KIRBY J:   What do you say in answer to the suggestion that is really encapsulated in what Justice Murray said in Goddard that if a mistake was made in Watson, that you do not improve the general administration of justice by compounding the mistake by making mistakes now in the other two?  That, I take it, is the essence of what the Crown says in resistance of this?

MS AMSDEN:   I accept that, your Honour, and I accept that that is the correct position.  But I would go back to my primary submission, being that an accused person has four specific rights.  One of those rights is the confrontation of an accuser and the ability to test their evidence.

GAUDRON J:   Except that your clients were not sentenced on the Watson version.

HAYNE J:   It was on their version.

GAUDRON J:   Yes.  If they had been sentenced on the Watson version, there might be some merit in what you say, but they were not.

MS AMSDEN:   With respect, your Honour, my submission is that they were sentenced on the Watson version.  I will take your Honours specifically to a number of places in the judgment, being the judgment of Mr Justice Templeman at page 147, paragraphs 65 and 66.

KIRBY J:   This is in the Court of Criminal Appeal, not at primary sentencing.

MS AMSDEN:   Not at primary sentencing; in the Court of Criminal Appeal.

GAUDRON J:   But we have to see on what basis they were sentenced by the sentencing judge.  At base, the question is whether there was something wrong with that sentence.

MS AMSDEN:   Mr Justice Templeman in his judgment at page 147 at paragraphs 65 and 66 picks up the version directly from the judgment of Watson.  That is at the lower half of paragraph 65.  He then goes on to quote Mr Justice Wallwork in Watson as referring to it as “a most exceptional case”.  Going over to page 148, at paragraph 68, he reproduces the paragraph in Watson from Mr Justice Murray at paragraphs 66 and 67.  It is also the case that Mr Justice Sheller did basically the same thing.  The aggravating features and the greater culpability that was attributed to the applicants was picked up by all judges in the Court of Criminal Appeal from the decision of Watson.

HAYNE J:   Am I right in understanding that the trial judge dealt with your clients on the basis of what was said at application book pages 11 and 13, that Mr Van de Worp was armed with a knife, Mr Watson had the over and under shotgun which was loaded, Watson presented the gun, Mr Ross pushed one of the complainants, Mr Van de Worp knew why they had gone there and he knew the gun was loaded.  Is that the factual setting in which those two men were sentenced by the primary judge?

MS AMSDEN:   Yes.

HAYNE J:   Is the question for the Court of Appeal then whether there was a specific error in reaching the conclusion reached or manifest excess?  How does what was done with Watson impact on that at all?

MS AMSDEN:   With respect, your Honour, it comes down again to the procedure and to the fact that they were denied the opportunity to be present in circumstances that basically the accuser was the co‑offender.  The version of events that was given by the co‑accused – and many of those points were accepted by Mr Justice Miller in sentencing Watson – simply were never accepted by either of the applicants.

GAUDRON J:   But, as I put to you, that might mean that Mr Watson should not have got a suspended sentence.  It does not go beyond that.  It does not take you that step further.

MS AMSDEN:   But it is the case that Mr Justice Sheller said in the case of the applicants in the Court of Criminal Appeal in their decision that he had considered that the sentencing judge had failed to give due consideration to his powers to suspend the sentence.  Mr Justice Sheller was aware of the decision in Watson and the different version of events and the circumstances, and nevertheless he made the remark that the primary judge had failed to fully consider the power to suspend the sentence.

KIRBY J:   You say that if then a specific error is shown along the lines Justice Sheller indicated, then it would fall to the Court of Criminal Appeal to resentence and then they would have to take into account in resentencing the new factual substratum, which was the sentence that had been imposed on Watson.  Let it be more lenient than maybe Watson deserved but, in applying the low test and avoiding a reasonable feeling of injustice, that would be a consideration that on resentencing which ought to have occurred that there would be a lighter sentence in their case because of what had happened to Watson who, after all is said and done, was the man who was brandishing the loaded gun.

MS AMSDEN:   Yes.  Mr Justice Sheller did say – and the transcript is not reproduced in the application book – that essentially the procedure in this case gave Watson a free kick.

HAYNE J:   It certainly did.

MS AMSDEN:   Using the judge’s own terminology, again it is my submission that that points to an unfairness to both the applicants.

KIRBY J:   But, if I can mix the metaphor, a free kick may be a two‑edged sword for you because of the fact that it may be Mr Watson should not have got the free kick, but it does not necessarily mean you have to give a free kick to everybody.

MS AMSDEN:   Certainly the primary ‑ ‑ ‑

GAUDRON J:   That really is the problem in this case, is it not?  The tenor of your argument simply goes to the proposition that Mr Watson should not have been dealt with more leniently than your clients.

KIRBY J:   You have to show error on the sentence of your clients viewed in isolation, or do you?

MS AMSDEN:   Yes.  I would rely specifically on the view that Mr Justice Sheller took, that the primary sentencing judge had not fully considered the suspension of sentence.  That appears both in the written outline of submissions and in the page I referred your Honours to.

GAUDRON J:   He considered it but thought because of the seriousness of the offence he could not.  I would not have read that “couldn’t” as a matter of law.  I would have read it that all things considered, the objective seriousness of the offences was such that he would not suspend the sentences.  You have to admit that objectively they were serious offences.

MS AMSDEN:   There is no question about that.  That was accepted.

GAUDRON J:   On any view they are, I would have thought, relatively lenient sentences.

KIRBY J:   And on any view Mr Watson was pretty lucky to get a suspended sentence – on any view.

MS AMSDEN:   Yes.

KIRBY J:   The question is:  where does luck finish?  Your red light is on.

MS AMSDEN:   Thank you, your Honour.  I would rely on the written submissions and, unless there are further questions, that completes my submission.

GAUDRON J:   Yes, Mr Cock.

MR COCK:   Thank you, your Honours.  My learned friend’s primary contention is that her clients should have been sentenced on the facts most lenient to them.

HAYNE J:   No, her primary contention is that a shambles has occurred for which the prosecution has to take its fair share of responsibility.  How is it, Mr Director, that three co‑offenders were dealt with separately in this fashion?

MR COCK:   I can tell your Honours.  What happened was they were all listed to be dealt with by the same Supreme Court justice on a particular pleas day and the Supreme Court registry, without contact to my office, split the list so that two different judges were to deal with it.

HAYNE J:   Did the prosecutor draw that to the attention of the particular judges concerned, that there were co‑offenders who ought not to be dealt with separately?

MR COCK:   They did, and then what happened was the judge to whom the first person had been referred then remanded him through to Justice Miller, so they were all then dealt with by Justice Miller, but by that stage they were dealt with on different days.  So we did certainly bring it to – it was in fact before the Chief Justice, who I think offered to assist in the sentencing list on the particular day.  That was drawn to his Honour’s attention and he quite properly, in our submission, then remanded Watson, I think it was, through to Justice Miller’s list, or it might have been the other co‑offenders.  But by that time one had already been dealt with and ‑ ‑ ‑

KIRBY J:   Very properly, you concede that it is undoubtedly unsatisfactory, that they should have been dealt with as they were?

MR COCK:   Entirely so.

KIRBY J:   One can understand a sense of grievance on the part of the two who were, on the objective facts, presented for sentence, the less serious offenders, and how they are languishing inside and Mr Watson, who wielded the loaded gun, is out on a suspended sentence.

MR COCK:   Yes, because the Court of Criminal Appeal accepted a story in relation to his involvement in it which put him as far less culpable.  We were not in a position to disprove that of course.

GAUDRON J:   But why did the prosecution not ask Justice Miller to deal with them all on the same day and together?  That is the real question, is it not?

MR COCK:   I cannot recall why that was.  I think there was a procedural problem with achieving that, just simply the workload of the court and the desire ‑ ‑ ‑

GAUDRON J:   I do not understand that that can be the case.  What did the prosecutor say when Mr Watson came before Justice Miller?  Did he say, “Your Honour, I’d ask you to stand this down in the list to deal with it on the same day as ‑ ‑ ‑

HAYNE J:   It may owe something to the way in which the indictments are drawn, which seem to be drawn in an unusual fashion, where Watson and Ross are presented separately from Van de Worp.  That, I would have thought, was entirely the prosecution’s responsibility, Mr Director.

MR COCK:   The problem with our system in the lower courts is that some people get committed to different dates, and my obligation is to file indictments as soon as possible.

GAUDRON J:   That is twice today we have heard about your system.  I think it is the duty of a director to ensure that the system does not work to the disadvantage of accused people.

MR COCK:   With respect, your Honours, it did not work to the disadvantage of Ross and Van de Worp who were sentenced on a more lenient view than the Court of Criminal Appeal in Watson.

HAYNE J:   But it has led to considerable disadvantage to the legal system as a whole.  We have different, apparently conflicting decisions about three co‑offenders who went on an armed robbery escapade.  That is not acceptable.

MR COCK:   Your Honours, the point was made very clearly to me in both Courts of Criminal Appeal before whom I appeared.  I have made arrangements to in fact fix this problem and I do not understand it to be a current difficulty.  I am happy to accept further criticism, but I can assure your Honours that the observations your Honours are making to me are, with great respect, somewhat less critical than they were in the second Court of Criminal Appeal, who were particularly concerned about it.  Indeed, we went into great detail explaining to that court why the procedure arose and I am comforted at least that I was able to persuade Justice Sheller that in fact my office was not solely culpable.  Indeed, after explanation, which of course is not in the papers before your Honours, his Honour I think in his judgment – it is in the application book at page 173 – he explained it as somewhat understandable –

since the Crown had no evidence with which to contradict what Watson had said.

Anyway, your Honour’s point is not a point that is new to me.  It is a point that was made, as I say, extremely forcefully before the Court of Criminal Appeal in these applicants’ case and I have set processes in place to ensure it does not happen again.

HAYNE J:   What is the answer to Ms Amsden’s complaint that, “He is suspended; my clients aren’t”?

MR COCK:   The answer is that if his view of the facts was the correct view, then it was appropriate to suspend him.  If his view as to what happened was wrong, then it was not appropriate to suspend him and the Court of Criminal Appeal got it wrong.  But on any view, on the lesser version – they were either sentenced on the right version or a lesser version.  They were not sentenced on a version which was any worse than is possible on any scenario presented before either court and they should be comforted that they have had their sentences reviewed very carefully by three judges of the Court of Criminal Appeal and extensive reasons given.  Their facts and personal circumstances were considered and compared and contrasted with Watson.  Justice Wallwork of course presided on both courts and was able to obviously have personal knowledge of Watson’s case and ‑ ‑ ‑

KIRBY J:   I am sure it will be very comforting to them to know that it has been considered by the three judges of the Court of Criminal Appeal and now by three Justices of the High Court, but if at the end of the day, because of the procedural arrangements, two people, one of whom only pushed somebody and one of whom is alleged to have had a knife at least, get sentences which are at that age, though not perhaps as long as it might have been, a considerable sentence of imprisonment and the one with the loaded shotgun is out on a suspended sentence, you cannot get away from a sense of grievance.

MR COCK:   There is a sense of grievance.

KIRBY J:   Comfort from legal procedures is the sort of thing lawyers are happy to talk about, but sitting there in a prison cell is not too much comfort, I would not think.

MR COCK:   The argument is the same argument as presented below and the judges in the Court of Criminal Appeal have expressed very careful reasons as to why they came to the view that it would only compound the error if they were to then suspend the sentences of these two persons, who on Watson’s view of the fact were far more culpable than even the base on which they were sentenced.  In my respectful submission, special leave should not be granted simply because the parity principle has been identified as prevailing and operating, but not applicable because the distinguishing facts of the way the cases were dealt with.

HAYNE J:   The parity principle, if engaged at all, was engaged at the point of the Court of Criminal Appeal in the case of these applicants, was it not?

MR COCK:   Yes, it was.

HAYNE J:   Am I right in understanding the Court of Criminal Appeal decided that there was specific error and it was therefore a matter for resentence?

MR COCK:   Yes, that is quite so.  Indeed, as your Honours have now developed and explained the law in relation to suspension of sentence, it was pleasing at least that the court, even though this decision was prior to Dinsdale, have certainly approached the question of suspension on the appropriate principles, that is having regard to all the relevant considerations before deciding whether it was appropriate to suspend, took the view it was not.

KIRBY J:   Mr Watson was represented by Mr Roberts-Smith, QC.

MR COCK:   That is correct, yes.

KIRBY J:   Was he represented privately, was he?

MR COCK:   I assume so.

KIRBY J:   And the other two were represented by legal aid?

MR COCK:   I assume so but I do not know the funding arrangements, I am sorry.  If your Honours please, I have no further submissions to make.

GAUDRON J:   Yes, Ms Amsden, anything in reply?

MS AMSDEN:   Thank you, your Honours.  Very briefly, just to take the Court specifically to the point where the problem was identified, that is at page 44 of the application book when Mr Justice Miller says, “that’s unfortunate.  We are saddled with” the way that Mr Roberts‑Smith presented.

GAUDRON J:   Sorry, page 44?

MS AMSDEN:   Page 44 at line 8 and particularly beginning at line 10 when he specifically refers to the “version of facts which is now in contest from the point of view of” at least Ross.  The Court of Criminal Appeal in the applicants’ case used such words as “unfortunate” and “unsatisfactory” in regard to the procedural issue that resulted in the co‑offenders being separated.  However, it is my submission that the use of those words alone is not sufficient to cure the injustice that has resulted or alleviate the sense of genuine grievance on the part of the applicants.  Unless there are specific questions, that completes my submissions.

GAUDRON J:   Was there a majority holding that the trial judge erred on the approach to suspended sentence in the case of your clients?

MS AMSDEN:   No, it was a majority decision in the case of Watson with Mr Justice Kennedy giving a dissenting decision and Mr Justice Murray and Mr Justice Wallwork finding that the sentence should have been suspended.  In the case of the applicants, all three judges agreed with the primary judgment of Mr Justice Sheller that suspension was not appropriate.

GAUDRON J:   No, but did all three agree with Mr Acting Justice Sheller that the trial judge had erred in his approach to the suspended sentence?

MS AMSDEN:   Certainly I would say that Mr Justice Templeman did, and that is quoted in the outline of argument which says that a perception of the

community would be that Watson has been hardly punished at all.  That occurs at pages 152 and 153.

GAUDRON J:   Justice Templeman seems to say that he did not fall into error, whereas at page 168 Acting Justice Sheller says that his Honour did fail to take into account.

KIRBY J:   I think you made that point earlier.

GAUDRON J:   Yes, but you do not have a majority holding to that effect.

MS AMSDEN:   No.

GAUDRON J:   I mean, the real issue in this case, it seems to me at least in terms of sentencing principle, was whether the trial judge did fall into error and it was therefore incumbent upon the Court of Criminal Appeal to sentence afresh and if it was incumbent upon them to sentence afresh, what account they then had to take of the version of events given by Mr Watson.  Is that right?

MS AMSDEN:   Yes, that is right, your Honour.  It would appear to me clearly from several points in the Court of Criminal Appeal decision that they picked up the version of events directly from the judgment in Watson.

GAUDRON J:   Mr Cock, do you concede that there was an error?

MR COCK:   Certainly not.  Justice Sheller identifies one and deals with it.

GAUDRON J:   But do you concede that was an error?

MR COCK:   No, I do not concede that was an error at all.

GAUDRON J:   Do you concede the correctness of what Mr Justice Sheller said at page 168, paragraph 131?

MR COCK:   Certainly not.  He is inconsistent with the decision of Justice Templeman at 62 and Justice Wallwork at 12.

GAUDRON J:   I know that.  You must say, must you not, that the Court of Criminal Appeal in Watson was wrong in holding that the trial judge had failed ‑ ‑ ‑

MR COCK:   Certainly.  I do not maintain that decision was correct but I would not bring that to this Court.

KIRBY J:   You essentially say windfall, free kick, but not a reason to give everyone a free kick.  That is your proposition?

MR COCK:   That is the Crown position, yes.

KIRBY J:   Justice Murray’s point.  But despite the sense of disquiet that in a sense it arises out of your arrangements and these prisoners sitting in their cells do have in a Lowe sense ‑ ‑ ‑

MR COCK:   It may not matter whether it is my arrangements or the court’s arrangements.  I do not want to be responsive to your Honour in that respect.

KIRBY J:   No, I understand that.

MR COCK:   But arrangements over which they had no control.  I would rather put it like that, your Honours, than take full responsibility for the way the matter proceeded, but that is sufficient for your Honour’s point, I think.

KIRBY J:   I should just say that if I had pushed somebody and somebody else had been holding the shotgun which was loaded and I got the sentence in prison and the other person is out on the streets, I would feel a little bit upset about it all.

MR COCK:   In defence of the decision in Watson ‑ ‑ ‑

KIRBY J:   Then you would be told that six very, very wise judges have looked at this and your answer would be, “So much for the law”.

MR COCK:   But to create another error does not assist, in my respectful submission, and diminishes what the Court of Criminal Appeal did in Watson’s case, which was trying to distinguish him on the basis of the acceptance of the facts he presented.

GAUDRON J:   It seems to me that neither Justice Templeman nor Justice Wallwork addressed the question whether there was error.

MR COCK:   They said there was not.  Whether they had addressed it in saying ‑ ‑ ‑

GAUDRON J:   No, I do not think they did.  Do they not approach it on the basis that no different sentence should be imposed?

MR COCK:   Justice Templeman certainly said that he was satisfied that there was no error in the approach adopted by Justice Miller in sentencing.

GAUDRON J:   Where is that?

MR COCK:   That is at ‑ ‑ ‑

HAYNE J:   Pages 38, 39 and again and 62.  Pages 38 and 39 in respect of the first applicant and 62 in respect of the second applicant.

MR COCK:   Yes.

GAUDRON J:   Is that correct?  In a sense it depends on how you read Justice Miller.  If you read him as saying, “As a matter of law or principle the seriousness of the offence precludes me taking it into account ‑ ‑ ‑

MR COCK:   If he expresses a rule, he would be wrong.

KIRBY J:   Justice Sheller thought he was expressing it and corrected it.

MR COCK:   Yes.

GAUDRON J:   And that is what the other Full Court thought he was doing.

MR COCK:   I do not think so.  I think the other Full Court took a slightly different view of the facts of it and thought that on that view of the facts there was enough exceptionality in the circumstances to suspend the sentence rather than saying that his Honour was erroneous.  As I say, I have trouble defending the Court of Criminal Appeal in Watson because I think Justice Kennedy was correct and that there was no error, so it is very difficult for me, other than tell your Honours what they did.

GAUDRON J:   The Court will adjourn briefly to consider the course it will take in this matter.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.01 PM

GAUDRON J:   What I am about to say is said on behalf of Justice Hayne and myself.

The applicants and a third man, Benjamin James Watson, were each charged with robbery while armed with a shotgun and with a knife and while in company.  All pleaded guilty and were sentenced by the primary judge to terms of immediate imprisonment.  In the case of Mr Watson:  3 years; Mr Van de Worp:  2 years, 9 months, and Mr Ross:  2 years, 6 months.  Each appealed against his sentence but the appeal of Mr Watson was heard at a different time and by a differently constituted Court of Criminal Appeal from the appeals of the present applicants.

Mr Watson’s appeal was allowed and an order made on his resentencing that his sentence of imprisonment be wholly suspended.  The applicants’ appeals to the Court of Criminal Appeal against sentence were dismissed.  They now seek leave to contend that there was a breach of the principles of parity described in Lowe v The Queen (1984) 154 CLR 600.

The course which was taken in sentencing the accused, Watson, ahead of his co-offenders was most unsatisfactory and has ultimately led to a situation which does not reflect well on the administration of justice.  This, notwithstanding, the objective circumstances of the applicants’ offences were serious, involving as they did the participation in a robbery at the point of a firearm which they knew to be loaded and with the added circumstance of a knife being brandished at the victims.

In these circumstances, despite the disposition by the Court of Criminal Appeal of Mr Watson’s appeal, the sentences imposed upon the applicants, when viewed objectively, cannot be said to be erroneous.  Accordingly, although time will be extended, leave will be refused.

KIRBY J:   I acknowledge the force of what my colleagues have said.  I also acknowledge that the fundamental problem in the case would be what order could ultimately and properly be made by a Court of Criminal Appeal to solve the problem that has arisen.  However, in the procedural events that have occurred, of which the applicants are innocent and which are mainly the consequence of arrangements within the court system or on the part of the Director of Public Prosecutions’ office, I am of the view that the applicants have an arguable sense of grievance that may be justified as to their sentences compared with the sentences imposed upon Mr Watson.  The man who wielded the loaded shotgun is at large; the two offenders who did not are in custody.

I would grant special leave to appeal.

AT 3.05 PM THE MATTER WAS CONCLUDED