Saleh v The Queen

[2016] HCATrans 175

[2016] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2016

B e t w e e n -

ADAM SALEH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 JULY 2016, AT 11.02 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   May it please the Court, I appear with my learned friend, MS J.S. PAINGAKULAM, for the applicant.  (instructed by Legal Aid NSW)

MR I.D. BOURKE, SC:   May it please the Court, I appear with my learned friend, MR R.J. RANKEN, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KEANE J:   Yes, Mr Dhanji.

MR DHANJI:   Thank you, your Honour.  Your Honours, the applicant requires an extension of time.

KEANE J:   Is that opposed, Mr Bourke?

MR BOURKE:   No, your Honour, it is not.

KEANE J:   Extension of time is granted.

MR DHANJI:   Thank you, your Honour.  Your Honours will appreciate that this was an appeal to the Court of Criminal Appeal on the sentence imposed in the District Court, that appeal being brought by the Crown pursuant to the Criminal Appeal Act (NSW). There was no issue that that right of appeal was available to the Commonwealth Director.

Your Honours will also appreciate that what happened as a result of that appeal was that the applicant’s sentence was changed quite dramatically.  He was sentenced to a term of imprisonment for two years at first instance, with an order made for his immediate release upon a recognisance.  On appeal, by majority, that sentence was increased to one of three years but also with an order that he be released on a recognisance after serving two years of that sentence.  So there was a very substantial change, both in terms of the length of the sentence and its duration.

In coming to the determination to impose that sentence, it is our contention that the Court of Criminal Appeal fell into error in four important regards.  Can I say at the outset that with respect to the four matters raised in our draft notice of appeal we accept that, with respect to the fourth ground, that does not raise a point of general importance but, in our submission, your Honours have in this case a judgment that does raise three other points of significant importance.

The fourth one is, of course, we say, important with the other three to the actual determination of the case and in that sense it would be a matter in which it may be considered necessary to grant leave if leave is granted with respect to the first three grounds.  If I could say something in terms of firstly the first special leave issue ‑ ‑ ‑

KEANE J:   Is not the answer to the first special leave ground - is not the answer to the question, it depends?

MR DHANJI:   Well, can I put it this way, with respect, your Honour?  We accept that it is entirely orthodox to say in the circumstances of a particular case that nothing but a sentence involving a period of fulltime imprisonment will serve the manifest purposes of sentencing.  That must be accepted but, in our submission, it is quite another thing again to say that a suspended sentence provides little if anything by way of general deterrence and to take your Honour ‑ ‑ ‑

NETTLE J:   Pretty experienced criminal judge.  You have to allow that he knows what he is talking about when it comes to the principles of sentencing, do you not?

MR DHANJI:   Well, with respect, your Honour, yes, subject to - what I take from your Honour Justice Nettle’s question is that one should perhaps read into his Honour’s reasons the notion that this is a particular case but when one actually comes to the determination made by his Honour, and the determination of the manifest inadequacy ground begins on page 38 of the application book, certainly what his Honour did in the early stages is entirely orthodox.  His Honour looked at the provision, had some regard to its legislative history, examined, and this is over at page 39, various decisions that had been made in sentencing in relation to the provision and again, his Honour, we accept, was not bound to follow any previous pattern of sentencing but your Honours will see that, at the top of page 41, his Honour in the last sentence in that paragraph, refers to it being:

appropriate to recognise the extent to which sentences not involving full‑time custody have been imposed in the other cases to which the Court was referred.

About halfway down the page, paragraph 36, his Honour effectively makes the point that the sentences that had been imposed in his Honour’s view were out of step with what is required by the provision and then his Honour goes over on to the next page and, in our submission, the resolution of this manifest inadequacy point is very much tied up in what is said in paragraphs 41 and 42.  At 41 his Honour is referring to Gregory and if I can just effectively ‑ ‑ ‑

KEANE J:   Well, before you go to that, looking at paragraph 40, where his Honour quotes from the judgment of the Queensland Court of Appeal, bearing in mind this is a Commonwealth statute ‑ ‑ ‑

MR DHANJI:   Yes.

KEANE J:   ‑ ‑ ‑ in the Queensland Court of Appeal it was said:

any sentence which did not require the offender to serve at least six months in actual custody where the excise avoided was more than $500,000 would, in my view, be inappropriate.

MR DHANJI:   Yes, but finishing in the last line of that extract:

Of course, there noted above, factors ‑ ‑ ‑

KEANE J:   Quite, there may be personal factors.

MR DHANJI:   Yes, and to an extent that is our point.  If I can put it this way, if at first instance the sentence of two years or indeed some form of fulltime custodial sentence had been imposed it certainly would not have been on that basis a legitimate complaint to say the sentence, simply because it involved fulltime gaol, was manifestly excessive.

The point that we make, of course, is that her Honour had available to her a broad sentencing discretion and in the exercise of that discretion, applying the intuitive synthesis of a multitude of factors that came to bear, her Honour came to a particular conclusion and that was a sentence of imprisonment but one which allowed for the immediate release. 

Now, in evaluating whether that sentence was or was not inadequate, not simply a question of course of whether the Court of Criminal Appeal had a different view as to what ought to have been done, but rather whether the result imposed of itself was indicative of error, the court was ultimately, in our submission, guided by two matters, the first of which - again we do not take issue with and that is at 41, and that is the seriousness of offences against the revenue.  But the second point that his Honour appears to have had regard to was at 42:

It is also appropriate to bear in mind the well‑known proposition that a suspended sentence provides little if anything by way of general deterrence –

Now, in circumstances where the applicant was to be ultimately sentenced in the manner in which I have indicated, a general statement such as that, should be taken, in our submission, as an indication that his Honour simply did not regard a sentence of imprisonment, albeit one allowing for immediate release, as a sentence of the type, which I do not think it is said against us, a sentence of the type that is in fact a real punishment, a genuine sentence of imprisonment and ‑ ‑ ‑

KEANE J:   The question is whether it will be sufficient.  We are not arguing the academic question as to whether a suspended sentence is a punishment or even a deterrent punishment.  The question is whether in the circumstances, having regard to the gravity of the offence and his personal factors, it is a sufficient sentence.

MR DHANJI:   Your Honour, with respect, that was the question certainly for the Court of Criminal Appeal but in terms of determining that sufficiency one had to have a proper understanding of quite what the sentence was.  So, if I can perhaps say two things. 

Firstly, with respect to how one reads his Honour’s reasons, in Dinsdale v The Queen, and your Honours will recollect that was a case involving an appeal to this Court, the Court of Criminal Appeal, having intervened to overturn a suspended sentence imposed in Western Australia for an offence of penetration of a child – so a very serious offence - after trial this Court was unanimously of the view that the sentence was not inadequate.

So, in a sense, I appreciate I am drawing not so much on principle but example in terms of the scope of suspended sentences to do the work of playing out the various matters important to sentencing, but what is important in terms of this first aspect of what was the Court of Criminal Appeal to do and how was it to express itself, his Honour Justice Kirby at paragraph 66 - and your Honours do not need to turn this up - his Honour referred to the fact that because the Court of Criminal Appeal was intervening to increase a sentence and remove the suspension it was doubly important that there was no significant defect of procedure or reasoning in the Court of Criminal Appeal’s judgment.

So, firstly looking at this matter, in terms of determining how one takes the reasons of his Honour Acting Justice Hulme, it has to be taken, in our submission, in the context of what his Honour ultimately did, that is, and that is where I started, you have reasons for judgment substantially increasing the nature and extent of the punishment imposed and, in those circumstances, to simply refer to the idea that the suspended sentence is a well‑known proposition that it provides little if anything by way of general deterrence, in our submission does not serve the requirements of demonstrating the question of inadequacy and indeed, of course, we rely upon the passage at 45 of the application book in paragraph 53.

There, his Honour made reference in a different context - his Honour is here dealing with the discretion.  His Honour says about halfway through paragraph 53, line 27 or so:

Witness Sweeney DCJ’s disregard of the principle as to the importance to deterrence of actual custody.

So, in our submission, what you have there is a reference back to a statement being described as a general principle.  Can I say this?  In the Court of Criminal Appeal, it will not surprise your Honours to know that the applicant relied heavily on various statements as to the nature of a suspended sentence.

NETTLE J:   You do not contest, do you, that an actual custodial sentence is likely to have greater general deterrent effect than a suspended sentence.

MR DHANJI:   Of course not, your Honour, and that is where we started, that there will be cases where one says the various purposes of sentences are such that one simply has to ‑ ‑ ‑

NETTLE J:   Well, fair enough, but all Justice Hulme is saying is that as a general proposition, as noted by Justice Whealy, actual time in gaol is likely to have a greater deterrent effect than an immediate ‑ ‑ ‑

MR DHANJI:   Well, without - perhaps with labouring the point I really cannot say much more than to say that his Honour does not seek to limit what he says at application book page 42, that is:

a suspended sentence provides little if anything by way of general deterrence –

Now, I have other grounds to deal with. Can I just say this? We, of course, feed all of this through the prism of Part 1B of the Crimes Act 1914 and when one feeds it through that prism, the starting point is 16A(1), a sentence appropriate to all the circumstances of the case, if I can paraphrase, but one immediately comes to the question of, well, what is appropriate? One needs to understand, well, what are the various matters one takes into account, what is the sentencing regime that is in place and in terms of that sentencing regime, section 17A, we say plays a big part and that is the provision that says that a sentence of imprisonment is not to be imposed unless there is, in effect, no other alternative, that is it is a sentence of last resort.

There is no issue that the sentence imposed at first instance was a sentence of imprisonment.  It was, therefore, a sentence of last resort.  So the difficulty, to an extent, surrounding this is that you have, in our submission, a difficulty for judges applying what is said by the Court of Criminal Appeal when a particular case comes before them.  Do they apply what has been said in cases such as Elliott v Harris, that is it is a wrongheaded approach to regard a suspended sentence as not much of a punishment or is a court going to be bound to apply a principle that says that a suspended sentence provides little if anything by way of general deterrence.

In our submission, there will not be a case where one gets to a sentence of imprisonment being the sentence of last resort where one does need to have some weight given to general deterrence.  In other words, once you take general deterrence out as something that is given weight by a suspended sentence, the whole regime for suspended sentences falls away. 

Your Honours, if I can turn then to the second of our grounds and in respect of this ground it comes back to again the issue of section 16A(1), a sentence:

appropriate in all the circumstances of the offence.

Your Honours will find section 16A at page 67 of the application book and, as I said a short moment ago, the point to be made is, of course, in coming to or meeting that general prescription, the need to pass a sentence appropriate in all the circumstances of the case, one needs to understand the various matters that are relevant and the sentencing regime itself to come that determination as to appropriateness.

Subsection (2) provides a number of matters that the court must take into account, it is a non‑exclusive list but certainly those matters must be taken into account and paragraph (p) refers to:

the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

Now, his Honour Justice Beech‑Jones has made the point that this provision was enacted in 1989 by which time common law principles with respect to the need to show exceptional circumstances with respect to hardship to others, were well entrenched.  If I can perhaps deal with it this way, we have obviously put what we can in written argument.  In a sense, his Honour Justice Beech‑Jones has done our work for us because his Honour has undertaken ‑ ‑ ‑

KEANE J:   Well, one can accept that there is force in what Justice Beech‑Jones has said.  One can accept the force in that but is not the difficulty for you, at the bottom of page 45, paragraph 55, where it is said:

I accept that the prison sentence I propose will have a substantial impact [on] the Respondent’s wife and family.  Whether it can be described as exceptional or not, the Respondent’s criminality requires a sentence of imprisonment for 3 years including a non‑parole period of 2 years.

So that what his Honour is there saying is, even if the view taken by Justice Beech‑Jones is applied here, whether or not you regard it as exceptional, whether or not the case is required to meet that hurdle, so, that is to say, even if it is not required to meet that hurdle this is the sentence that is required in order to impose a proper sentence.  Now, is not the difficulty for you that this is not a good vehicle to raise the question as to whether Justice Beech‑Jones’ view, to which he has adhered, is right or not?

MR DHANJI:   Your Honour, certainly there is an important point and it is demonstrated by the division.  Certainly, in terms of how it plays out in this particular case your Honours will appreciate that his Honour Justice Beech‑Jones came to a different result but again I cannot draw too much from that.  Minds may differ as to an appropriate penalty but, to get to the heart of your Honour’s question, the difficulty, in our respectful submission, is simply this and it goes back what I said a moment ago.  One goes to section 16A(1) and his Honour was required as a result of section 16A(1) to determine an appropriate sentence in all the circumstances of the case.

Again, that is informed by the various matters the court must take into account.  So you cannot have a situation, in our submission, where his Honour says “I accept that we have material before us that comes squarely within section 16A(2)(p).  This sentence will have a substantial impact on the respondent’s wife and family, but nonetheless that is going to make no difference to the result because ‑ ‑ ‑

KEANE J:   Because, in all the circumstances, the respondent’s criminality requires the sentence that is imposed.

MR DHANJI:   I can see that I am quickly going to talk in circles, with respect, your Honour, but we maintain the point that one has to evaluate by way of instinctive synthesis.  The effect of what his Honour says, in our submission, is that in the circumstances, having regard to, to take your Honour’s point if I understand it properly, the objective seriousness and other matters, nothing less is required – nothing less can be imposed.  That is synonymous, in our submission, with saying “I can put the effect on family and dependants to one side” but, with respect, his Honour could not.  It was mandatory. 

I appreciate the light has gone on, if I could simply say this.  We also say, of course, that there is an important point in relation to the exercise of the discretion.  In our submission, nothing that his Honour said – or his Honour’s reasons in exercising a discretion were tantamount to saying that the impact of the decision is dependent on – well, intervention is required to have an impact upon what happens in the District Court and we say that is not a legitimate part of the reasoning in the exercise of discretion.  May it please the Court.

KEANE J:   Thank you, Mr Dhanji.  We do not need to trouble you, Mr Bourke.

The Court considers the proposed appeal would not raise any issue of principle which would warrant the grant of special leave.  Special leave is refused.

The Court will now adjourn until 10.15 am on Tuesday, 23 August in Canberra.

AT 11.24 AM THE MATTER WAS CONCLUDED