Short v Director of Public Prosecutions

[2006] HCATrans 630

[2006] HCATrans 630

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M88 of 2006

B e t w e e n -

FRANK HARRY SHORT

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 NOVEMBER 2006, AT 11.52 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant, Mr Short.  (instructed by Galbally & O’Bryan)

MR P.A. COGHLAN, QC:   Your Honour, I appear with my learned friend, MRS C.M. QUIN, for the respondent.  (instructed by Solicitor for Public Prosecutions)

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, in Everett v The Queen in the judgment of Justice McHugh at page 307, which should be, I think, behind tab 3 of your Honour’s bundle, his Honour said this in about the middle of the page:

It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a court of criminal appeal must take into account the attitude of the Crown in the sentencing court.

Authority is cited there including Tait & Bartley, which I will come back to, at page 389.  His Honour goes on:

Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown’s concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion.  This is particularly so when the convicted person has been given a non‑custodial sentence.  Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation.  As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did.

HAYNE J:   Now, is the appeal by the Director here by leave or as of right?

MR CROUCHER:   It is as of right, but the same principles have been understood to apply.  That is one of the special leave questions.

HAYNE J:   I know you can find dicta in the cases that say the same thing applies, yes.

MR CROUCHER:   That is one of the questions, though, your Honours.  One of the questions is whether or not that principle applies in an as of right case, firstly; secondly, whether it applies to a situation such as the present.  Now, I mentioned that his Honour referred to Tait & Bartley.  It is a long passage, but it is worth reading and it could have been written for this case, your Honours.  That is the judgment of Justices Brennan, Deane and Gallop at page 389 where their Honours said this:

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error . . . The Crown is under a duty to assist the court to avoid appealable error.  The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it.  A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal.

Interposing here, that is what happened in this case.

HAYNE J:   Well, why?  That is the point we have to get to.  There are other parts of these reasons to which you want to direct our attention.

MR CROUCHER:   Yes.  In this case those remarks are particularly applicable for these reasons.  First, when the applicant originally appealed against his conviction on sentence, when he was given a total sentence of seven years with five non‑parole period with individual sentences of a similar order to those which ultimately were imposed in the retrial, the Crown did not appeal.  More than that, on the appeal against sentence, senior counsel for the Crown experienced in appellate matters, submitted that both the total effect of sentence and the non‑parole period were “well within the range of sentences that might have been imposed”.

HAYNE J:   So seven, five after the first trial?

MR CROUCHER:   Yes, that is when he was convicted of two groups of rape and aggravated burglary and assaults.  Second trial, acquitted of the first group of rapes and aggravated burglary, although convicted of an assault, but a minor assault which attracted a fine in the circumstances, and acquitted as to the second group of offences of the aggravated burglary, which again changed the factual circumstances.  It would be reasonable, it is respectfully submitted, to say that it is, in a sense, half the criminality.  Now, reasonable minds might differ about that, but broadly speaking, it was quite different.  Now, on that second trial ‑ ‑ ‑

HAYNE J:   The total effect on the second round was?

MR CROUCHER:   Four with a non‑parole period of three.  On the plea at that second trial counsel for the applicant made, it is respectfully submitted, careful and accurate submissions on the law as to sentencing on retrials.  He referred the judge to the leading authority on the topic, the decision of this Court in R H McL and other authorities as well which had been referred to in R H McL.

In particular, he submitted these three things:  firstly, that the individual sentences imposed on the first incident at the first trial should be a guide, given the acquittals and the changed factual circumstances; secondly, that there should be a head sentence that can be calculated much as the last sentencing judge was calculating with the first incident taken on its own; thirdly, he submitted that there should be a minimum sentence that enables the applicant to be released at a not too distant time in the future. 

Now, when asked by the judge whether he had any response to those submissions, the learned prosecutor said, “I have nothing”.  Yet that was the time for the Crown to make a submission to, in the words of the joint judgment in Tait & Bartley, assist the judge to avoid error if error it be and to give the applicant a fair opportunity of meeting a case which ultimately might be made on appeal and which was, in fact, made on appeal.

HAYNE J:   What was the fair opportunity to meet?

MR CROUCHER:   To make a submission as to why it was appropriate to do that or alternatively, his Honour might have said, “Well, actually I agree with the Crown, I agree that those individual sentences in the order of two or two and a half years were inadequate”.  The sentences the Court of Appeal ultimately imposed for the same offences were four years.  He might have said, “Well, I think those sentences should be increased.  Having regard to all the considerations applicable in R H McL and all the relevant considerations, I think they should be increased.  However, given that this man has been acquitted of half of that which was before the court previously and given the delay and the circumstances, I will sentence in a way that, yes, increases those individual sentences, but I will adjust my orders for cumulation and currency such that I impose a total effective sentence of a similar order”. 

It might even have been more than that which was imposed by his Honour this time round.  Instead of, say, four years, it might have been four and a half or five years with the same or a similar non‑parole period, three years.  In those circumstances, had that been done, had he been given that opportunity, the Director might not have appealed.  Had he appealed he might have failed, had he appealed and succeeded he might not have succeeded to the same extent.

HAYNE J:   But the bottom line in the present case is that the Court of Appeal acted, as it did, did it not, on the basis of manifest inadequacy? 

MR CROUCHER:   It did.  That is accepted.

HAYNE J:   That on its face was invoking what was said in R H McL.

MR CROUCHER:   That is true, but without taking into account the special circumstances of this case.  Despite the fact that written submissions were made on the fact that the Crown had failed to appeal the first sentence, that fact that they had acquiesced in the submissions made in the second trial about this style of sentencing, neither of those things, despite express submissions made in writing about that, got one mention in the judgment in the Court of Appeal.

HAYNE J:   That brings us hard up against this intersection between purely adversarial and public features of sentencing.

MR CROUCHER:   I understand that, your Honour, but again, that point - it need not become an adversarial process generally.  It is a special case when you are re‑sentencing on a retrial.  R H McL makes that point.  R H McL says, general speaking, you would not be increasing the sentence for various reasons and there are good policy reasons why you would not, but sometimes you have to depart because they are entirely wrong.  But in considering that question, it is submitted that you must take into account the failure of the Crown to have appealed in the first place and, secondly, when given the opportunity to rebut the submission that the same sorts of sentences should be imposed again, but allowing as a total effective sentence for the acquittals, nothing is said. 

When one considers Tait & Bartley and Everett the question then is, well, if those principles restrain the Crown from taking that point or if they do not restrain them from taking the point, it is at least a consideration which the Court of Criminal Appeal must bear in mind when considering its discretion of whether or not to allow the appeal or the extent of any re‑sentencing on a successful Crown appeal.

None of that was considered in this case despite express submission that it should be.  As it turns out, the Crown in this case have put the submissions in the application book which were made on behalf of the applicant and you will see at pages 37 and 38 that those submissions that I have just made now were expressly made.  In addition, at page 39 at paragraph 11 this was said:

Even if the appellant were correct in the submission . . . to the effect that, unlike the position that obtained at the first trial, the operation of totality meant that it was not appropriate for the judge at the second trial to compress the individual sentences, that says nothing about the total effective sentence and the non‑parole period.  Rather, that submission serves only to highlight the fact that, even if the judge had been minded to impose precisely the same (or even longer) individual sentences, it would still have been open to impose the total effective sentence and non‑parole period that he did impose -

or one of a similar order, in which case there would be no occasion to appeal.  None of this gets the slightest mention in their Honours’ judgment, and it ought to have.  It is no answer to say, it is respectfully submitted, that these individual sentences were plainly too little, when the Crown acquiesced in the passing of those sentences in two respects, by not appealing first time round and, secondly, by acquiescing in the submissions that were made to that precise effect on the retrial.

In addition, another of the reasons why it is no answer is that these are fundamental matters that must be referred to and must be taken into account in deciding whether or not to allow an appeal in the first place or the extent of any re‑sentencing if there be a re‑sentencing.  The proper approach of a Court of Criminal Appeal in cases such as the present, it is respectfully submitted, is a question of general importance to the administration of criminal justice, particularly given the frequency of Crown appeals.

In addition, contrary to the respondent’s submission that these questions were somehow settled by R H McL, it is quite the contrary.  R H McL does not address this question.  It addresses re‑sentencing generally on a retrial.  It does not address the combination of that issue and the failure of the Crown to appeal the first time round and, secondly, to acquiesce in such sentences on the second trial.

Further, the reasoning, in any event, in R H McL implies that special leave should be granted for, if it is correct to, say as their Honours do in R H McL that an exercise of discretion by a sentencing judge increases the original sentence given to the accused is necessarily rare, and that was in the joint judgment of Justices McHugh, Gummow and your Honour Justice Hayne at page ‑ ‑ ‑

HAYNE J:   Paragraph 72.

MR CROUCHER:   It is.  Then, if that is correct, and obviously it is, your Honour, then it must be true to say that such an exercise should be exceptionally rare in a case where the Crown did not appeal the first sentence, described that first sentence as being well within the range, acquiesced in the submission at the retrial that similar individual sentences, head sentence adjusted to the fact that there is now one global incident rather than two, and a non‑parole period that results in a not too distant in the future release date, when those factors are taken into account, nothing been said about that and the applicant is denied the chance to put to a trial judge arguments as to how that might be addressed in the circumstances, then, as I say, it has to be exceptionally rare. 

There is no acknowledgment at all in the judgment of the Court of Appeal of the rarity and of these factors.  They are fundamental considerations, relevant considerations, important considerations that ought to have been taken into account, plainly were not and, as a result, there is a miscarriage of justice.

Now, the other practical consideration is this, what is trial counsel to do?  You have a person convicted following a trial, advice is wrongly convicted, there are plainly errors of law which would justify a retrial, but you say to him or her, “Look, you might not think about not appealing despite the fact that you are innocent, despite the fact that you will have a retrial, despite the fact that you might be acquitted at your retrial, because, despite the fact that the Crown have not appealed your sentence this time and despite the fact that they might say nothing about it upon any retrial where a similar sentence is imposed, they can run off to the Court of Appeal later on and get your sentence increased.” 

That brings the administration of justice into disrepute, it is respectfully submitted.  That is just not the way it should run.  It is just not fair and it is not conducive to sensible outcomes.  It is respectfully submitted that special leave should be granted to correct the miscarriage in this case and to consider these questions of the application of principles enunciated in Tait & Bartley and Everett which I have taken your Honours to to the particular situation at hand.  If the Court pleases, those are our submissions.

HAYNE J:   Thank you, Mr Croucher.  We will not trouble you, Mr Coghlan.

In R H McL v The Queen (2000) 203 CLR 452 this Court considered the principles to be applied in sentencing an offender convicted at a second trial for offences where the convictions recorded and sentences imposed at an earlier trial had been quashed and set aside on appeal. It is not arguable that the Court of Appeal in the present case failed to apply the principles stated there, nor are we persuaded that it is arguable that there has been any miscarriage of justice in this matter. Special leave to appeal is refused.

AT 12.09 PM THE MATTER WAS CONCLUDED