Ruggiero and Anor v The Queen

[1999] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A48 of 1998

B e t w e e n -

ASSUNTO RUGGIERO and ELENA RUGGIERO

Applicants

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 AUGUST 1999, AT 9.50 AM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the applicant.  (instructed by O’Loughlins)

MR P.J. RICE:   If the Court pleases, I appear with my learned friend, MR M.T. BOYLAN, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GLEESON CJ:   Yes, Mrs Shaw.

MRS SHAW:   Your Honours, the question raised by this application is the importance of the Full Court adhering to the principles which govern Crown appeals against sentence before a prisoner is deprived of the liberty left to him after sentencing at first instance.  The fundamental principles which we say were not adhered to by the Full Court in this case, first of all, is that there was no regard to the principles in House v The King in that there was no error of fact or law identified by the learned sentencing judge; secondly, that there was no justification for leave in accordance with the principles in Everett and Griffiths, that is that there was no error in point of principle which this Full Court was seeking to establish and no matter of principle stated in the judgment and finally there was no regard had to the principle of double jeopardy which, in this case, applied in three separate respects.

GLEESON CJ:   I am looking at page 78, line 30.

MRS SHAW:   Yes, there is certainly a reference to Everett v The Queen in the sense that Everett states a recognition by the Court of the fact that in Everett there is a statement that the Full Court should not grant leave in those circumstances but when it came to the application of that general proposition which occurred in the application book commencing at page 80 their Honours, first of all, considered whether or not the prosecution contention that there was an error in the weight given by the learned sentencing judge to the undertaking to repay $520,000 over a period of time was ‑ ‑ ‑

HAYNE J:   Do you say that Everett confines Crown appeals to cases of identifiable specific error or does Everett countenance Crown appeal in cases of manifest inadequacy?

MRS SHAW:   In my submission, Everett countenances manifest inadequacy if it has been demonstrated that it is an error that falls within The House v The King description.

HAYNE J:   That is where no specific error can be identified but the result is so manifestly out of step with proper result that an error of principle, though unidentified, must be assumed to have occurred?

MRS SHAW:   Yes, yes.

GLEESON CJ:   But, Mrs Shaw, on the bottom of page 80, at line 41, what is said to be a specific identifiable error is referred to and discussed.

MRS SHAW:   Yes, but the court concludes that they are not persuaded that there is an error.  That was the argument.  The argument put forward by the Crown was that the learned judge was unduly influenced by the commitment of the applicants to repay that money but on page 81, line 10, having been referred to the judgment in Whitnall where the Federal Court had held that it was proper to take into account a commitment which imposed a continuing burden on a prisoner, Justice Olsson concluded that he did not dissent from that point of view.

GLEESON CJ:   And what about page 82, line 13?

MRS SHAW:   Your Honours, the only basis upon which it can be said that the sentence could attract community outrage would be to - bearing in mind there was no interference with the head sentence, the only disproportion referred to is that between a complete suspended sentence or a six month pre‑release.

GLEESON CJ:   I was not intending to refer so much to the community outrage but the proposition, whether it be right or wrong, that what was involved here constituted “a manifest departure from proper sentencing standards”.

MRS SHAW:   Yes.

GLEESON CJ:   Now I simply refer to that because you said that the Court of Criminal Appeal in dealing with this matter, in effect, simply decided to resentence your client without applying the principles – indeed, I thought he rather suggested with paying only lip service to the principles referred to on page 70, line 30.

MRS SHAW:   Yes.  That is effectively my submission, your Honour, and the reason I say that is this, that when one is considering not the head sentence which, of course, one can compare with other appropriate standards but rather the second step in sentencing, what is the minimum term to be imposed or whether or not complete suspension is appropriate.  Questions of general deterrence do not have the same weight.  I accept that they are proper to consider them.

HAYNE J:   What, in deciding whether there should be an immediate service of some portion of the sentence in custody?

MRS SHAW:   Yes.

HAYNE J:   What is the proposition you are advancing?

MRS SHAW:   The proposition I am advancing is very much in line with Bugmy.  Certainly questions of general deterrence have some role to play but one is very much in the realms of the discretionary considerations of the trial judge and the weight that he will attach to various mitigating factors so the disproportionality that is raised in this case and the question of proper sentencing standards is not the difference between a tariff and a non‑parole period that one might see in other sentences, but the difference between a decision to completely suspend a sentence and the decision to impose some months and then have suspension.

That, we say, is not an appropriate difference that can constitute a disproportion and, certainly, bearing in mind that it is a matter of discretion, in the absence of identifiable error in the exercise of that discretion, then there is no justification for concluding that it somehow does not comply with a sentencing standard.

GLEESON CJ:   That is the real question, is it not?  What the Court of Criminal Appeal has said, if you read together page 78, line 30, and page 82, line 13, is that in their view there was a manifest inadequacy and a patent departure from sentencing standards.

MRS SHAW:   Yes.

GLEESON CJ:   Now, the judgment of the Court of Criminal Appeal on that matter might be arguably right or arguably wrong but there is nothing wrong, is there, in the proposition that you can have manifest inadequacy which implies error of principle.

MRS SHAW:   I accept that as a general proposition.

GLEESON CJ:   In other words, you do not have to be able to point to something written or said by the sentencing judge that involves an error.

MRS SHAW:   Yes.

GLEESON CJ:   You simply, in some cases, have to be able to say the result is so far out of line with the result required by the application of proper standards that there is an error that requires appellate intervention.

MRS SHAW:   Yes.

GLEESON CJ:   So there is nothing unorthodox about the approach taken by the Court of Criminal Appeal, is there?

MRS SHAW:   It is not unorthodox in the ultimate proposition it states but it is unorthodox in that it is applying that proposition to a disproportion between a sentence of some months and complete suspension upon the basis that complete suspension does not fulfil a deterrent purpose and we say that that is inconsistent with what is accepted as the proper purpose of a completely suspended sentence and, secondly, that to say that some months must be served – if the Full Court had proceeded to apply the principle of double jeopardy and thereafter it had decided that six months was more appropriate, then it would have inevitably been faced with the situation that the proper sentence should have been some months less than six months.

HAYNE J:   Would you have this Court say that, as a matter of general principle, fraudulent tax avoidance over an extended period does not ordinarily call for an immediate custodial term?  Is that the end result of your contention?

MRS SHAW:   No, it is not, your Honour, because that statement of principle is one that has been adhered to in a number of decisions but the Full Court decisions from the other States and the Federal Court make it plain that, in the end, the question of suspension is not excluded and the effect of this judgment is that, despite the fact that the learned sentencing judge had considered that there were sufficient mitigating factors to support the discretion, the effect of the judgment is almost as a matter of law for this sentencing there must be some period in prison and it is that, in my submission, which is erroneous.  If it had been suggested that the head sentence was in some way manifestly excessive then the question might have been different but the failure to go on ‑ ‑ ‑

HAYNE J:   The point of principle or point of manifest inadequacy discerned by the Full Court was custodial versus non‑custodial disposition, was it not?

MRS SHAW:   Yes.

HAYNE J:   That is the nub of what was seen by the Full Court as the manifest inadequacy.

MRS SHAW:   Some custodial versus non‑custodial.

HAYNE J:   Yes, I understand that.

MRS SHAW:   Yes, and that approach, we say, is not a proper representation or a proper approach to inadequacy because a sentencing judge at first instance is bound to apply section 17A and consider whether or not he is able to deal with the matter other than by a sentence of imprisonment.

HAYNE J:   Yes.

MRS SHAW:   So that if one is to give credence and apply the principle in 17A, then to approach the question of the minimum term as being the choice between some months and complete suspension, we say, is an error in principle.  The question of double jeopardy is not adverted to by the Full Court at all and, in this particular case, was particularly important because the learned judge had accepted that there was an ongoing commitment to repay the Australian Taxation Office a sum which included another taxation year in culpability penalties and a commitment to pay $200,000 within 28 days so that the applicants were sentenced on the understanding that the learned judge accepted that it would be necessary for them to remain in the community to be able to fulfil that commitment to the Australian Taxation Office and placed a lot of weight on that.

The Full Court took the view that that was a correct approach but did not take into account and refer to, in a consideration of whether or not they ought to interfere, the fact that that commitment had already occurred at the time that the Crown lodged their appeal to the Court of Appeal.

In this case, what we say is a matter that has not been taken into account, in terms of the question of double jeopardy, is whether or not a sentence of some months would be mere tinkering with the sentence that was imposed by the learned judge and there has been absolutely no reference in the judgment to the manner in which the applicants had changed their position as a result of the sentencing regime that was imposed by the judge at first instance.

HAYNE J:   Custody versus no custody would seldom seem to amount to mere tinkering, would it?  The difference is radical, of course, to the accused.

MRS SHAW:   It has been described by the Full Federal Court in Cobb’s Case and, indeed, in Vallis’ Case in the Full Court of Victoria as inconsistent with the judgment of his Honour, former Chief Justice Bray in Elliott v Harris, to require some months to be served as being of a different order or inconsistent with the true role of a fully suspended sentence.  We say that that itself demonstrates an error in principle, the failure to give sufficient weight to the true nature of the suspended sentence.

So, your Honours, we say that in this case the failure by the Court of Appeal to adhere to those fundamental principles before deciding to impose a sentence so that the applicants were to serve a period in custody warrants a grant of special leave.  If the Court pleases.

GLEESON CJ:   Thank you, Mrs Shaw.  Yes, Mr Rice.

MR RICE:   If your Honours please.  In our submission these applications should be refused.  We submit to the Court that the Court of Criminal Appeal applied, what is now, well‑established principles concerning the applications by the prosecution for leave to appeal, particularly as has been identified in this Court this morning, as to whether or not there should be suspension or otherwise of the sentence.  We say that these principles were the subject of authoritative restatement by this Court in 1994 in Everett and Phillips and that this case gives no question of law or principle of general importance.

HAYNE J:   But you have to go so far as to say, do you not, that there is inevitable conclusion of manifest inadequacy if no immediate custodial term is imposed in circumstances of this kind?

MR RICE:   Yes.

HAYNE J:   Do you go that far?

MR RICE:   Yes, we do and we say that the authorities, particularly Everett and Phillips and Osenkowski in this State, permit that as soon as you have the Court of Appeal taking the view that there has been a failure to either adhere to what are proper sentencing standards, then the court may take the view if it so decides to grant leave on that basis.

HAYNE J:   I understand that but the proper sentencing standard which you have to assert was denied at first instance is a standard that would require ordinarily, perhaps, imposition of immediate custodial disposition for somebody guilty of fraudulent tax avoidance over an extended period.

MR RICE:   Yes.  We say that is the standard ordinarily and that this case came within that particular range of cases that ordinarily would require that imposition, that is the imposition of an immediate custodial term.

HAYNE J:   Notwithstanding the age of the applicants?

MR RICE:   Yes.  Notwithstanding the age of the applicants.  We say that the Court of Criminal Appeal considered those things and took the view that this is the appropriate standard.  These are the facts of this case.  This case is so serious as to warrant ordinarily - and this is an ordinary case in that sense - an immediate custodial term to be served.

GLEESON CJ:   For warrant, perhaps, you need to substitute the word “require”.

MR RICE:   Yes.  I mean, the Court of Criminal Appeal, in our submission, was not saying that always this must happen or a sentencing court is bound to do this always and the court therefore, we say, has not prevented or stripped away a discretion in a sentencing court but what we do say is that it has fixed a standard for use by sentencing courts of a particular standard and that standard would ordinarily require - and this is one of those - an immediate custodial term. 

If your Honours please, I also seek to refer to a decision of this Court in refusing leave in a matter of Russell.  It is not in the list of authorities but it is reported in The Legal Reporter.  If I could just provide copies of this to the Court.  It is a very short excerpt from a refusal of special leave in March of last year, particularly as Justice Brennan says:

“The level of sentencing is pre‑eminently a matter for the courts of criminal appeal of the States and Territories.  It is not this Court’s function to review the standards which are deemed appropriate to local conditions unless they are determined under the influence of an error in sentencing principle.  Such an error could appear if standards were so divergent from Australian standards generally as to be attributable to some error of principle.  That is not the present case.

Now, we would suggest here that there has been no error of principle demonstrated and no attempt to suggest that this standard being applied here is so divergent from Australian standards generally “to be attributable to some error of principle”.

We also maintain that on a prosecution appeal as with a defendant’s appeal against sentence identifiable error, of course, is not required before an appellate court may intervene and certainly, House v The King is authority from that as, indeed, Everett says nothing different and we say that this case is merely an application of House which is a 1936 case, Everett 1994 and that this case involves no need for a development of that.

I have already made the point that the decision does not strip away the discretion and I also make the point, if your Honours please, that there is no requirement that the court in resentencing deal with the aspect of double jeopardy.  The court, in referring to Everett and Phillips, referred to those portions of Everett and Phillips that discussed double jeopardy which, in their turn arose from Griffiths’ Case so we say that the Court should not

take the view that the failure of the Court of Criminal Appeal to mention double jeopardy means that that aspect of the matter was not taken into account.

Similarly, we make the submission that the mere fact that the court made no express mention of the option of refusing leave, even if it was thought that there was a manifest inadequacy and providing guidance for future cases, does not mean that that was not taken into account.  In essence we say here that the Court of Criminal Appeal decided that this case fell within what we have described here today as the ordinary case and that it was an appropriate case for them to intervene because it fell below that standard and we say that that standard is a matter for the Court of Criminal Appeal and we would say, with respect, not for this Court.  If your Honours please, they are the submissions that we wish to make.

GLEESON CJ:   Thank you, Mr Rice.  Yes, Mrs Shaw.

MRS SHAW:   There are two matters, your Honours.  In so far as there is a reference to the State jurisdiction, the offence involved is a federal offence, section 29B, and the cases that we have referred to in our outline of Whitnall and Cobb are both Full Federal Court decisions which deal with section 29D offences and those cases state the general principle that ordinarily one would expect an immediate custodial sentence but do not remove the exercise of the discretion so that the submission of the applicant here is the real question is not the question of tariffs but whether or not the proper test has been applied on a prosecution appeal in considering whether or not to interfere with the exercise of that discretion.     We say that the Full Court has not applied the proper test in relation to that discretion.

GLEESON CJ:   Thank you. 

Justice Olsson, speaking for the Court of Criminal Appeal in this matter, said:

It is trite to say that leave to appeal of the type here sought ought only to be given in rare and exceptional cases – to correct a manifest inadequacy of sentence or patent departure from sentencing standards which constitutes a plain error in point of principle (Everett v The Queen (1994) 181 CLR 295 at 300).

Later in his reasons after discussing the facts of the case and the submissions of counsel, his Honour said:

Whilst I consider that the head sentences imposed were too modest, bearing in mind the gravity of the offending, nevertheless, I am unable to say that they were so outside a proper exercise of discretion as to have departed from proper sentencing standards.  On the other hand, it seems to me that, given the circumstances of the offences, not to require any portion of those sentences actually to be served constituted a manifest departure from proper sentencing standards which plainly requires the intervention of this Court.  It is one which, quite properly, would attract community outrage and constitute a most undesirable signal to other like minded persons.

There was no error of principle in the approach taken by the Court of Criminal Appeal to the question whether this case warranted appellate intervention on a Crown appeal against sentence and no error has been shown in the application of the relevant principles to the facts and circumstances of the case.  The application should be refused.

AT 10.17 AM THE MATTER WAS CONCLUDED