SBZ v The Queen

[2014] HCATrans 23

[2014] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 2013

B e t w e e n -

SBZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 1.56 PM

Copyright in the High Court of Australia

MR A. VASTA, QC:   May it please the Court, I appear with my learned friend, MS K. PAYNE, for the applicant for leave.  (instructed by Fraser Power Solicitor)

MR A.W. MOYNIHAN, QC:   May it please the Court, I appear with my learned friend, MS B.J. MERRIN, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

CRENNAN J:   Yes, Mr Vasta.

MR VASTA:   Thank you, your Honour.  Your Honours, this application for special leave proceeds upon two bases.  The first basis is that the primary court and the Court of Appeal failed to recognise the principle that the applicant’s sentence should have been ameliorated because of the consequences flowing from the unlawful publication of confidential transcripts, and in addition to that, a statement which was taken by a police officer which was said by that police officer to have been confidential and was not going to be distributed in any way.  That breach of undertaking, together with the unlawful publication of confidential transcripts of proceedings before the Australian Crime Commission, caused the applicant for leave to be in fear of some consequences that might flow if those particular matters were known to those whom he implicated, and who had done him harm in the past.

Whilst it is correct that the imposition of a proper sentence should not necessarily involve the application of strict mathematical formula, it can be demonstrated in this case that no adequate consideration was given to the fact that the applicant was gripped by fear by virtue of the unlawful publication of the confidential transcripts and this particular statement, which the Crown has conceded in its outline had been published to the legal advisers of the two persons who had been responsible for some harm that had occasioned the applicant in the past, namely, the Lacey brothers.

CRENNAN J:   Mr Vasta, during the course of imposing sentence, the trial judge at application book 29, around line 38, describes the fact that he has given a substantial discount:

but I have formulated it on the basis of the cooperation you have extended, and also the real concern you have about the risks to which you feel you will be exposed –

so his Honour the trial judge took into account both the cooperation and also the fear in relation to being an informant.  If one goes to page 42 of the application book and looks at paragraph [37], the final two sentences I direct your attention to:

The facts that the sentence has subsequently been published and that the applicant has received further threats in custody do not cast any different light on that factual sentencing context.  There is no basis for a conclusion that the sentence was excessive for reasons now apparent but unknown to the sentencing judge.

I invite you to elaborate why there is error in that reasoning.

MR VASTA:   Your Honour, it is one thing to say that you have given consideration to a particular ameliorating factor and another to say that it is demonstrated in the sentence which is finally imposed.  Our submission is that in this case there is really no demonstration, there is nothing that is made manifest, that shows that there was a special consideration given for that additional factor because if he says ‑ ‑ ‑

KEANE J:   Mr Vasta, he is serving, in actual custody, two and a half years as opposed to eight.  That looks like a pretty substantial discount.

MR VASTA:   Your Honour, he is merely eligible for parole after two and a half years.  To make some sort of a calculation that more than 70 per cent, which is not correct mathematics anyhow, as my learned friends have done, is really not a useful exercise.  We say that if the discount to which he was entitled by way of the cooperation is 50 per cent and he was sentenced to five, it is not to the point that one can say, “Look, he was given a discount that you take into account by virtue of the violent offenders legislation, that he would have otherwise been sentenced to 80 per cent of it”.

We say that that is not a meaningful process to follow, and to say that that is an ameliorating factor.  The fact is that 50 per cent if it was given is five years, to merely make the statement that I have taken that into account, and for it not to be specifically reflected in the sentence, is something that we say shows a real error.  We say that the sentence did not make a particular provision for his release after two and a half years.  It is merely a recommendation for parole and not an actual release.

I do not think it is legitimate for my learned friends to identify a suspension of a particular sentence with a mere recommendation for appeal which automatically happens after the service of 50 per cent of the sentence.  We say, in addition to that, that is one aspect of it that we say shows the error of the primary judge and which the Court of Appeal failed to correct.

The second basis is this, that the Court of Appeal failed to address adequately the importance of the provisions of the Drugs Misuse Act relating to publication.  We say that the Court of Appeal has already established that if certain matters occur after the sentencing process has been completed that could have, had they been before the sentencing judge, affected the sentence then that can be taken into account.

We say two publications occurred which really exacerbated the already difficult conditions that the applicant was to endure in prison over and above the fact that he had cooperated with the police, and that was the fact that these provisions are really designed because the legislature acknowledges that in cases of drug trafficking and the like that the complainants are not usually the way in which the investigation and prosecution of these offences occur.  They are done through informants; they are done through undercover work.  The legislature acknowledges that and, for that reason, the legislature has put into the Drugs Misuse Act provision that these particular proceedings, where cooperation has occurred, should be heard in camera and in addition to that put in a provision where the publication is prohibited.

Now, the Court of Appeal spoke about section 122 of the Drugs Misuse Act and failed to address the question as to whether that was breached and more or less glossed over the fact that in two fairly significant publications, the website of the CMC and in a large article of the Courier Mail, the applicant’s name was mentioned and the nature of the sentence was published.  Now, that exacerbated the fear that he had and made the sentence which he was to serve that much more onerous and that was a matter which we submit the Court of Appeal failed to address.

KEANE J:   Well, Mr Vasta, it did address these questions at paragraphs [31] to [37].  Do you point to some particular error in those paragraphs?

MR VASTA:   Well, your Honour, we say that at [35] where it said:

It was submitted for the applicant that the publications by the . . . Courier Mail –

and so on –

amounted to a breach . . . which provides –

and so on and they make mention of the words of the legislation.  They say that:

it is neither necessary nor appropriate in the absence of submissions from those who undertook the publication to reach a view as to whether there was any breach of the section.

KEANE J:   Then they go on to say:

In any event, from what is in the affidavit from the applicant’s girlfriend, it seems probable that the information about the applicant’s sentence became known independently of those publications.

So what they are saying is that even if there was that breach, it has not made any difference to your client’s circumstances.  Is your argument that the sentence should have been further reduced by the court to punish the authorities for their contravention?

MR VASTA:   Well, we do not say this, but we say that there should have been some form of denunciation.  There was some form of denunciation by the primary judge of this “mess”, as he called it, and his Honour adopted the fact of the adjective that I used that what was done was an appalling breach of the law and protocol, but nothing more than that was done. 

We say that there was a cavalier attitude on the part of the prosecuting authorities because they tried to say look, no harm was done in the publication of the ACC hearing transcripts because that statement that he had made about implicating the Lacey brothers was in the public arena.  It was in the public arena as a result of a breach of an undertaking by a police officer found specifically by the primary judge as having occurred. 

This cavalier attitude that the prosecuting authorities ought to have been denounced, but we say importantly the sentence of that additional hardship of the applicant in the serving of his sentence had to be demonstrated as having taken place, not merely giving some passing reference to saying he took it into account.  One has to look for the purposes of ensuring that a person who has been sentenced is not aggrieved by the nature of the sentence to have demonstrated that in some tangible way that was taken into account and it was not done here and it is not merely enough to say look, I took it into account.

We say that the failure of the Court of Appeal to correct that and to really give effect to the fact that this publication and what occurred afterwards to which they referred as having a posting on his cell of a particular note which was threatening in nature was just an oversight of taking this additional burden which was placed upon the applicant’s shoulders and the way he was to serve his sentence and to completely ignore it and we say that ought not to have been done.  Your Honour, they are our submissions.

CRENNAN J:   Thank you, Mr Vasta.  We will not trouble you, Mr Moynihan.

The applicant was convicted of two counts of drug trafficking and various other offences in the Supreme Court of Queensland after a plea of guilty and sentenced on a discounted basis.  Leave to appeal was denied by a unanimous Court of Appeal which applied established principles to the facts of the case.  The decision is not attended by sufficient doubt to justify a grant of special leave, nor is it in the interests of the administration of justice, either generally or in this particular case, for special leave to be granted.  Special leave to appeal is refused.

AT 2.12 PM THE MATTER WAS CONCLUDED