Siregar v The Queen, Ismunandar v The Queen

[2004] HCATrans 392

[2004] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S512 of 2003

B e t w e e n -

SAUD SIREGAR

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S555 of 2003

B e t w e e n -

SIDIKI ISMUNANDAR

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 10.34 AM

Copyright in the High Court of Australia

__________________

MR P. BYRNE, SC:   If it please your Honours, in the matter of Siregar I appear for the applicant with my learned friend, MS J. HICKLETON.  In the matter of Ismunandar, I appear with my learned friend, MR D.G. DALTON, for the applicant.  (instructed by George Sten & Co and Freemans)

MR R.F. SUTHERLAND, SC:   If your Honours please, I appear for the respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   I presume it is convenient to hear both of these matters together?

MR BYRNE:   It is, your Honours, yes.  Your Honours, there is in each case an application to extend ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Sutherland?

MR SUTHERLAND:   No, that is not opposed.

GLEESON CJ:   You have that extension.

MR BYRNE:   May it please your Honour, thank you.  Your Honours, this application raises a question of principle which is of fundamental importance in the

sentencing of offenders.  The circumstances of each of the applicants can be shortly stated.  They were both a part of a group of offenders who were all dealt with by the same judge at first instance in relation to an offence of being knowingly concerned in the importation of a commercial quantity of heroin into Australia, and it should be said a notably large quantity.

KIRBY J:   The largest.

MR BYRNE:   I gather it is said to be the largest ‑ ‑ ‑

GLEESON CJ:   How many people altogether were there on the vessel, Mr Byrne?

MR BYRNE:   I think there were 11 altogether on the vessel.

GLEESON CJ:   So more than we are presently concerned with.

MR BYRNE:   I am sorry, 14.  There were eight other people who were charged, eight Indonesian nationals who were all acquitted at trial.

KIRBY J:   Acquitted?

MR BYRNE:   Acquitted.  That was at a trial before the same judge who sentenced each of the six people who feature in this application.

KIRBY J:   They were tried before a jury, were they?

MR BYRNE:   Yes, your Honour, in separate trials.  It should be said there were not 14 tried together.  I think there were, in fact, three separate trials.

KIRBY J:   And what did the trial judge do?   He saved up the sentencing until all the trials were over or ‑ ‑ ‑

MR BYRNE:   I do not think he did.  They were sentenced separately.

KIRBY J:   But by the same judge, having regard to the relativities, as his Honour felt, of their guilt.

MR BYRNE:   Certainly.  The trial of the man by the name of Mandagi was a separate trial from the trial of the four people who are the prominent players in this application, including, of course, the two applicants.  I should say, your Honours, that in relation to one of those people, of course, the man Chan, who was the chief witness for the prosecution in each of the trials, he, in fact, pleaded guilty.  Of course I left him out of the equation, but he was dealt with first, as is the conventional practice in New South Wales.  His sentence was one of 13 years with a non‑parole period of 10 years.  He was followed in time by five others.  The people and their respective sentences are set out at page 300 of the application book.

GLEESON CJ:   Was he sentenced before the trial?

MR BYRNE:   Yes, he was.

GLEESON CJ:   That is conventional, so that at the trial people would know what benefit he had received.

MR BYRNE:   Certainly.

GLEESON CJ:   Is there something in the legislation that, in effect, provides that that benefit can be taken away from him if he does not live up to his promises?

MR BYRNE:   There is.  There is a provision in the Crimes Act (Cth) which enables the Crown to appeal where a person who has been given a benefit for future assistance, assistance that is promised to be given – usually by way of giving evidence in forthcoming proceedings – where that person fails to meet the obligations of their undertaking, the person can be brought back before the court to be sentenced.  I think it is section 20(1)(a) of the Crimes Act (Cth).  That was done in the case of Mr Chan.  There was no application to increase his sentence beyond that which was given at first instance because it was seen by the authorities that he had, in fact, complied with the undertakings that he had made.

GLEESON CJ:   Am I right in thinking that somehow, later, it was made to appear to the Court of Appeal that dealt with M that Chan had got off too lightly, because the evidence about his role was incomplete?

MR BYRNE:   Yes.

GLEESON CJ:   Mr Byrne, one of the problems about parity in relation to a matter like this, as I think we have observed in a judgment not too long ago, it is almost impossible for the court to have an accurate appreciation of the respective degrees of complicity of a group of people who turn up in a boat from Asia with some heroin on board.

MR BYRNE:   Yes.

GLEESON CJ:   This is a very imperfect science.

MR BYRNE:   I accept that.  Your Honours, the role of Mr Chan, the person who pleaded guilty and who gave evidence in the Crown case, and his sentence is not the primary basis on which these applications are based, as, indeed, it was not the basis on which the challenge in the Court of Criminal Appeal was made.

GLEESON CJ:   No, but it was the basis on which M got his sentence reduced, was it not?

MR BYRNE:   It was.

KIRBY J:   It had the drag-on effect, you see.  This is what ‑ ‑ ‑

MR BYRNE:   It does.  The trickle-down effect, as it sometimes ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ is of concern, because this must happen, or potentially happen, every time you have different Courts of Criminal Appeal looking at cases where a single primary judge has dealt with all of them in their relativity.  If one is disturbed, is it a hypothesis of your argument that that necessarily leads to the recalculation of all, or all who apply?

MR BYRNE:   All who apply and all who can establish that they have the necessary sense of grievance which the authorities suggest is ‑ ‑ ‑

HAYNE J:   Well, how can that be?  That is, how can the decision in case one, on this proposition, determine the outcome in case two?  There has to be an intervening step, does there not?

MR BYRNE:   Yes.  It does not determine in the sense of conclusively determine the result in the later case.

HAYNE J:   No, and thus the question becomes, what is the nature of the intervening step?  What is the content of that intervening step?  What do you say it is?

MR BYRNE:   When your Honour refers to the intervening step, your Honour is referring to the ‑ ‑ ‑

HAYNE J:   You know that case one has been disposed of in a particular way.  A Court of Criminal Appeal is then dealing in case two.  What is the connection that it draws between case one and case two?

MR BYRNE:   Well, where the parties involved are co-offenders, where the original sentence, the sentence by which reference is made in order to challenge the subsequent sentence, has not been challenged by the Crown – that is an important proposition here.  The man Chan was sentenced to 13 years with a 10 year non‑parole period.  It was clearly open to the Crown to appeal against the inadequacy of that sentence if they regarded it as being so.  The fact that they did not appeal against it meant that that was a sentence that needed to be considered in any subsequent decisions as to sentence for co‑offenders of Mr Chan.

Now, clearly, his position was distinctly different from any subsequent offenders in this case because in his case alone there was the consideration of the discount for assistance to be ‑ ‑ ‑

GLEESON CJ:   He was presumably at risk of retribution.  He turned up as the principal witness for the prosecution at the trial of the others.

MR BYRNE:   That is part of the reason for the discount, of course.  In many senses a comparison between the sentences imposed on the others and the sentence imposed on Mr Chan was arguably a comparison which was unlikely to be of any real value because of that very distinctive feature of Mr Chan’s case.

GLEESON CJ:   Realistically, it is extremely unlikely that all the entrepreneurs involved in this commercial activity were on board that vessel.

MR BYRNE:   Certainly.  There was no question that – and there was a man whose name was mentioned – I think his name was Nam – he was never charged in relation to it and he was said to be the person who at least was visibly associated with this operation.

KIRBY J:   Now, can I cut to the bottom line, because we do not have all that much time.  The bottom line is that your client is under the order of the second Court of Appeal to serve a sentence which is 20 years on the bottom, and the captain is going to serve a sentence now which is 19 years on the bottom.  The Crown conceded at the Court of Criminal Appeal No 2 that that would lead to a sense of grievance – a proper concession – but is it absolutely clear that the role of your client, that is to say Mr Ismunandar, and also Mr Siregar, was lesser in the criminality than the captain?

MR BYRNE:   Yes.  That is, as I understand it ‑ ‑ ‑

KIRBY J:   That is said by both Courts of Criminal Appeal?  Is it said by the second Court of Criminal Appeal?

MR BYRNE:   It was said by the sentencing judge who had, of course, had the added benefit of having full knowledge ‑ ‑ ‑

KIRBY J:   Could you just give us a sketch as to what is the differential, because they are all senior officers of a ship. 

MR BYRNE:   Yes.

KIRBY J:   But I think the point in relation to Mr Ismunandar is that he changed the log but at the direction of the captain and that indicated the hierarchy, which is self-evident, and it is suggested that indicated his different and more subservient role in the criminality.

MR BYRNE:   Yes.

KIRBY J:   Is there anything else apart from that?

HAYNE J:   Apart from that, is this an exercise in seamanship?  It is not, is it?

MR BYRNE:   The trial judge said they were not being sentenced according to their naval ranks; they were being sentenced according to their objective criminality, which just happened to coincide, as it was, essentially with their ranks in the ship.  But there was one other feature of it, and this was a matter that the sentencing judge had particularly the benefit of.  The distinction between the two men Chen – not the man who pleaded guilty – Chen and Lau, they were both Hong Kong Chinese nationals who were clearly involved, according to the judge’s conclusion, at a managerial level, if not as being the instigators, along with the man who did not ever get arrested.

Mr Chan, who gave evidence, was also a Hong Kong Chinese national.  The people on the ship, Mr M – as your Honour has referred to him – and the two applicants before this Court were all Indonesians.  They were not part of the higher level of organisation.  There was a clear distinction drawn between them.  Both the men Chen and Lau were given life imprisonment without parole and each of the three Indonesian naval operatives were given life imprisonment but with determinate non‑parole periods – in the case of Mr M 25 years; in the case of these two applicants 20 years.

The judge distinguished between them on the basis that there was a suggestion in the evidence that at one stage during the journey of this ship M, who was the skipper, the captain of the ship, had indicated that he had discovered something and made a decision to turn the ship around and head back to where it had come from, so that he clearly had some element of control which both of these applicants did not have.  For that reason the judge felt that there was a distinction in their respective roles and he reflected that in the sentences that he imposed.

The real distinction that exists between the sentences that now exist in relation to the captain of the ship and these two applicants is not so much in what might be seen as a fine discrepancy in the non‑parole periods – the captain has a non‑parole period of 19 years as it stands at the moment and these two applicants, clearly people acknowledged to be by everybody who has been involved in this case, by the Crown in the Court of Appeal, clearly people who are less culpable in their objective criminality than the skipper, they have sentences that are heavier.  But it is not the non‑parole periods that are the real contrast between them.  In relation to the captain of the ship, he has a determinate sentence of 27 years.

KIRBY J:   I understand that argument, but in this particular case these are two non‑citizens and, therefore, I can understand that in another case as being a very powerful argument, but these are two persons who, one would expect, immediately on the expiry of their non‑parole period will be expelled from the country.  They will be deported.

MR BYRNE:   Well, that may be the approach that is taken at the moment ‑ ‑ ‑

KIRBY J:   But it would inevitably be the approach, knowing the way the Migration Act has operated.  So that the ‑ ‑ ‑

GLEESON CJ:   We have no real desire to keep them here, I imagine.

MR BYRNE:   But one cannot be sure that they will, in fact, be released at the end of their non‑parole periods.  If they are not, Mr M, the captain of the ship, would be required to remain under detention for a period of eight years, both these men would remain under detention for the rest of their lives, and that may be as long as 50 years.

GLEESON CJ:   Just assume for the moment, contrary to the point you have just put, which may be right or wrong, that it is the non‑parole period that is of practical importance.  What would you say the Court of Criminal Appeal should have done to the non‑parole period in relation to your clients, bearing in mind that the Court of Criminal Appeal considered – and I presume this is a material consideration – that the sentence ultimately imposed on M was manifestly inadequate?

MR BYRNE:   Well, one Court of Criminal Appeal concluded that, and that is a part of the argument we have put on this application, that their conclusion in that regard was not open.

GLEESON CJ:   But you are not suggesting that as a matter of law they were not entitled to conclude that?

MR BYRNE:   They were certainly entitled to conclude it, yes.

GLEESON CJ:   Now, what are we looking at instead of 20, adopting the same relativity that the original sentencing judge approached?

MR BYRNE:   What the original sentencing judge did was to distinguish the criminality by reducing the non‑parole period from that imposed on Mr M by a margin of 20 per cent to reflect the lesser criminality of these applicants.  The non‑parole period went down from 25 to 20.  If the Court of Criminal Appeal took the same approach – and there was no suggestion that the judge was wrong in assessing their criminality at a level 20 per cent below that of the captain – then it would mean a non‑parole period in the region of 15 years and some months; that being 20 per cent less than 19 years.  So that is that is the ‑ ‑ ‑

KIRBY J:   No.  You have to reduce the 20 years.  So it is going to come from 20 to 16, is it not?

MR BYRNE:   I am sorry, your Honour, I missed that.

KIRBY J:   The sentence, in the case of Mr Ismunandar, is 20 years.  So that would be reduced by one-fifth, would it not, if you kept relatively – anyway, it is 15 or 16.  That is what you are saying.

MR BYRNE:   Yes, but Mr M has a sentence of 19 years, so the 20 per cent has to come off the 19 years to reflect the same proportion.

KIRBY J:   I see.  Yes, you are right.  It is a bit more than – yes.

MR BYRNE:   I have not actually done the sums, I have to confess, but it is a figure slightly in excess of 15 years.  That is, if it might be said, perhaps the best result that might have been obtained by these applicants.

KIRBY J:   I understand the point, but this must be a problem that has arisen several times, where Courts of Criminal Appeal have differed in their views and they are coming at the cases severally as distinct from in a composite way, as the sentencing judge did.  Now, what has happened in other States?  Surely, there must be some cases about this.

MR BYRNE:   There are, your Honour.  It has to be said that it has happened much more than several years.  I described it in the written submissions as a perennial problem.  It is a problem which ‑ ‑ ‑

KIRBY J:   What is the point of principle that you are putting to this Court?  On the one hand judges have a duty to give effect to what they believe is the correct legal outcome and on the other hand they are enjoined by this Court to avoid the sense of grievance of lack of parity.  So how does one reconcile those except in the particular case?

MR BYRNE:   The principle, we would submit, is in the terms that have been expressed by Sir Laurence Street in a decision of Tisalandis, which I have cited in the written submissions.  Putting it shortly, what that principle is is that even though the later judge, or indeed the Court of Criminal Appeal, may disagree with the sentence that has been imposed on the co‑offender, it is nevertheless, no matter how much it is disagreed with, a matter that has to be taken into account.

GLEESON CJ:   It is a discretionary consideration.  These are all discretionary considerations.  There is no automatic parity.

MR BYRNE:   There is not, I accept that ‑ ‑ ‑

HAYNE J:   Do you point to any passage in the Court of Appeal where you say the error is identifiable?

MR BYRNE:   Yes, your Honour.  If I could take your Honours to page 317 of the application book, the very last paragraph of the judgment of the court – and it was a joint judgment of the court, as your Honours know – alongside line 20 in the final paragraph, it is said there:

public confidence of a legitimate kind is more likely to be maintained –

and then this phrase –

after giving all due weight to parity principles, by not interfering with sentences which –

and then these words, and these are the words which we would complain are the source of error –

when viewed separately from what happened in Mandagi’s appeal –

Now, the court is bound to take into account what happened in M’s appeal in determining whether or not the sentence imposed was, in all the circumstances, correct.  You simply cannot apply the principles of parity by saying we put the principles of parity to one side and then look at the sentence.

GLEESON CJ:   That is really an elaboration of what they said in paragraph 37, is it not?

MR BYRNE:   It is in one sense.  What is said in paragraph 37, and particularly in the final sentence of the paragraph, is an implication that the

principles of parity, which are well established to apply across the board in criminal cases, are in some sense relaxed or, indeed, eliminated in circumstances where the offences are of such, as the court has said, intrinsic criminality that no sense of grievance can be ‑ ‑ ‑

HAYNE J:   But you do not point, at least initially, to paragraph 32 as being in error.  That to me seems to be the linchpin of the Court of Appeal’s reasoning.

MR BYRNE:   What the Court of Criminal Appeal has said in that paragraph is that the initial sentence imposed on Mr Chan has, in effect, compounded later decisions and if they were to take a certain course in this case, it would have the effect of further compounding those decisions.  Now, the decision in Chan has never been challenged.  It is one that stands there as an unchallenged decision.  It is not a situation where any court dealing with offenders who are linked to Mr Chan can simply ignore it and say it is wrong.  As Sir Laurence Street said, even though the court considers it to be wrong, it is nevertheless a matter that has to be considered because it is the source of the grievance which the subsequently sentenced offender entertains.

GLEESON CJ:   Thank you, Mr Byrne.  Yes, Mr Sutherland.

MR SUTHERLAND:   Your Honours, might I touch very briefly, please, on the factual background in order to found some of the propositions that I want to put to you.  Your Honours asked Mr Byrne in relation to part of it.  Could I just outline what had happened.

This was an expedition in which a specially converted fishing trawler, that had in its hold a speedboat with a derrick that was able to launch it at sea, came via the seas off China, waited for several days – I think some 10 days – until in due course this massive amount of heroin was brought on board.  I wanted to touch on that first factual aspect because – can I take your Honours ‑ ‑ ‑

KIRBY J:   Does that affect the parity question though?  We know it is a very big ‑ ‑ ‑

MR SUTHERLAND:   This way, your Honour Justice Kirby, if I could just take you to – I think we were all using the Siregar application book in the page references that Mr Byrne was using.  Can I take you please to page 300.  On the question of the different role of Captain Mandagi, the judge at first instance referred – and you will see it at page 300 in paragraph 12 of the Court of Criminal Appeal:

In respect of Siregar and Ismunandar, it has been submitted by counsel that the sentences imposed on them should be less than those imposed upon the captain, Mandagi.  Insofar that this submission is based upon a view that sentences should decrease in accordance with the prisoners’ nautical rank, it is rejected.  There is however, evidence that Mandagi, whilst in the Andaman Sea –

that is while they were waiting for the heroin –

became restless at the delay and the danger which that created –

bearing in mind, of course, he was the captain of the ship –

and threatened to abandon the whole project.  This could be regarded as evidence of his capacity to make independent decisions and to voluntarily withdraw from the criminal enterprise.  There is no similar evidence in respect of the chief officer –

That was the difference that the learned sentencing judge found in deciding to fix a 25 year non‑parole period so far as the captain was concerned, but 20 for the first officers.  That was the only difference that was identified by the sentencing judge.

KIRBY J:   Yes, but that rather strengthens, does it not, the applicants’ case because their – I mean, life on a merchant ship is quite hierarchical and it is quite disciplined.  It has to be.

MR SUTHERLAND:   Justice Kirby, I accept that.  What I wanted to simply identify was the only point of difference.  Your Honour had mentioned to Mr Byrne the ‑ ‑ ‑

KIRBY J:   Quite an important point of difference because it shows that the captain had the power but did not exercise the power.  That makes him more responsible.  Here are the prisoner applicants sitting in their cells knowing that the person who had the power, who held back from using it, have ended up (a) with a determinate sentence, and (b) with a sentence which is one year less on the bottom.

MR SUTHERLAND:   Can I come back to that?  The point I wanted ‑ ‑ ‑

KIRBY J:   Which you conceded, in the Court of Criminal Appeal, gave rise to a sense of grievance.

MR SUTHERLAND:   Sense of grievance, certainly.  Your Honour, what I wanted to pick up was your Honour made the point that Mr Ismunandar had altered the log at the direction of the captain.  The point that I wanted to bring to your Honour’s attention was that that proposition was raised by him in his evidence, but in passing sentence the learned sentencing judge found that that must have been rejected by the jury.  Your Honours will see that at page 298, just two pages earlier, at line 30.  After summarising what he had done – line 5:

He played his part in falsifying the log –

and so on.  At line 30, dealing with his evidence:

He had participated in falsifying the log at the captain’s direction.  This evidence must have been rejected by the jury.

So the point that I simply wanted to pick up but not labour was that in relation to what he did, he was involved on his watch as the first officer – the captain did one watch, he did the other – in falsifying the log, not at the captain’s direction.  So that the point of distinction was simply that at a time when the ship was riding on the open seas waiting for the heroin to be delivered day after day after day, the captain of the ship threatened to pull the plug, as it were, on the venture, no doubt because of the safety of his ship.  But so far as the participation of their functions in getting the heroin to Australia, there was no material difference, in our respectful submission.

In all events, the ship comes down, as your Honours know, and there were on board 14 people.  There was the captain, his first officer and his engineer, the two applicants here.  The first engineer had been on the boat for some considerable period of time before the others joined it, had been involved in lengthening the derrick so the speedboat could be launched, and was a specialist speedboat driver, so it was said.  It was his function to drive the speedboat from one boat to the other to collect the heroin.  It was his function to drive from what was intended to be outside the territorial limits of Australian navigational waters ‑ ‑ ‑

KIRBY J:   Are you withdrawing the concession that you made before the Court of Criminal Appeal?

MR SUTHERLAND:   I am sorry, I am corrected.  Thank you.  One of the great difficulties in coming into a matter the day before it is before your Honours and trying to get on top of the facts in 24 hours.  I do apologise.  I have confused Siregar with Chan.  May I withdraw what I just said.  Mr Siregar went on the trip into the beach in order to rectify any damage to the engine which had been damaged off the coast of China.  There were the captain, the two officers ‑ ‑ ‑

KIRBY J:   So the concession made in the Court of Criminal Appeal is not withdrawn?

MR SUTHERLAND:   No.  There was a sense of grievance, quite certainly, Justice Kirby.

KIRBY J:   Is the principle in Tisalandis by Chief Justice Street one that is applied generally throughout Australia?  Can you tell the Court that, or do you not know?

MR SUTHERLAND:   I believe that it is certainly is as a first instance proposition.  The difficulty before your Honours, or the point of principle before your Honours, is this, that when one gets to the Court of Criminal Appeal and one has differently constituted courts dealing with appeals from different offenders, it may well be that there are factors in one Court of Criminal Appeal that are not before another.  For example, the proposition that Chan, who was the rollover, if I might use the colloquial term, had been dealt with more leniently might have come out in a second appeal rather than in a first appeal.  It really would depend upon the order in which they arose.

Might I come to a specific point before coming back to deal with that question further.  What had happened was that there were the captain, his two officers and eight other members of the crew.  There were three Chinese on board, two of whom went to the beach, one of whom remained on board.  There were four men on the beach waiting to receive the heroin.  There has not been three trials; there have been four.  They were separated.  Life sentences have been passed in respect of all who were convicted after pleading not guilty and in respect of three of the four that pleaded guilty who were on the beach.  Captain Mandagi went to the Court of Criminal Appeal and argued a justifiable sense of grievance as he saw it because of the sentence passed upon a rollover.

GLEESON CJ:   On that basis, as I understand it, that the sentencing judge had underestimated the criminality of the person who rolled over.

MR SUTHERLAND:   I am not sure that he argued that, but certainly that was part of what was put there.  What was sought to be compared was the end result and, indeed, the discussed starting point for a man who had put his hand up and given evidence against others.  These sorts of narcotics importations depend for their successful prosecution, in most part, either on getting information from inside by telephone intercepts or other listening device‑type material or from somebody within a conspiracy putting their hand up and giving evidence. 

Had Mr Chan been given – he was not of course, but had he been given the benefit of an indemnity from prosecution, that might arise in some circumstances, could it be argued by others in the venture that they had a justifiable sense of grievance.  Here there was no evidence ‑ ‑ ‑

KIRBY J:   Well, that would depend on that case, but we are talking about this case where ‑ ‑ ‑

MR SUTHERLAND:   Well, in this case the only evidence upon which the Crown could prosecute the people who were on the boat at sea came from Chan.  Without him there was no evidence as to where this boat had come from – if it had bunkered at sea for days waiting for heroin to be delivered on board, whether it had ‑ ‑ ‑

HAYNE J:   Look, I know the facts are, of course, critical and, of course, they are important, but we are at the point of special leave.

MR SUTHERLAND:   Quite so.

HAYNE J:   Those arguments seem to be advanced in support of what appears at 314, line 16 and following, where the Court of Criminal Appeal say that:

to take the step of reducing the sentences on Siregar and Ismunandar so as to bring them into line with that of Mandagi, which was itself erroneous –

and it seems to be that proposition, that the sentence on Mandagi was erroneous, that you are amplifying at the moment.  Now, what do you say as to the principle which underpins that chain of reasoning?  Is that a principle which we find in what the Court has already said about parity or is it not?  Do we find it in Postiglione, do we find it in Lowe, or do we not?

MR SUTHERLAND:   Well, we respectfully submit that the answers are in Lowe and in Postiglione.  Postiglione, of course, was a situation where the role of ‑ ‑ ‑

KIRBY J:   I do not remember a court of criminal appeal saying of another court of criminal appeal they were wrong, they were erroneous.

MR SUTHERLAND:   Well, I have not seen it as a basis of an application for leave.

KIRBY J:   In my experience, it is quite an unusual thing to say.

MR SUTHERLAND:   But, of course, what would flow from it?

KIRBY J:   Generally, you would put it a little bit more delicately at the very least.

MR SUTHERLAND:   But I suppose it depends upon the order in which ‑ ‑ ‑

KIRBY J:   But it leaves it in the fact, does it not?  It leaves it in the fact that it is a factum on which now there is, as you have conceded, a sense of grievance.  We have Chief Justice Street’s principle which says you start from the factum, even though you might not have given that sense – it is a bit like Crown appeals, you have to adjust what you would do in a court of criminal appeal from what your view of the law requires you because of the complexity of the particular case.

MR SUTHERLAND:   Justice Kirby, one of the questions that you put to my learned friend, Mr Byrne, namely as to whether or not it sequentially has a domino-type effect, is significant.  Are we to have Mr Chen, for example, and Mr Lau to come back?  Are we to have the people on the beach to say this should never have been a life sentence for participants in an enterprise even of this magnitude because the rollover who was first sentenced got a lenient sentence, albeit on an erroneous basis, the captain ended up with a determinate sentence because of that fact, and now all of the other life sentences should be revisited?  Are we going ‑ ‑ ‑

KIRBY J:   Well, you say that is significant.  I think you are right.  I think it is significant and maybe the answer is that the Court of Criminal Appeal No 2 just sticks to its own guns and does what it thinks is right.  But these are very high sentences.  The margin is significant in terms of liberty.  You conceded a sense of grievance.  It seems to be an unarguable sense of grievance – determinate sentence, lesser term on the more senior operative.

MR SUTHERLAND:   The question ultimately was whether it was a justifiable sense of grievance.  What the Court of Criminal Appeal held ‑ ‑ ‑

KIRBY J:   The nuances might escape the community and the two applicants.

MR SUTHERLAND:   Well, the nuances, in my respectful submission, would not escape the community in relation to the necessity of life sentences being the starting point in relation to an importation of such magnitude.  The second Court of Criminal Appeal, in the exercise of their discretion and on the facts before them, were entitled to hold this was an enterprise of such a magnitude that no sentence for the participants at a senior level in getting this heroin to Australia and onto the beach and so on other than a life sentence would be appropriate, and to then start debating whether or not a sense of grievance where 19 plays 20 or 20 plays 25 – the Court of Criminal Appeal in the exercise of their discretion used the term at page 315 that effectively a marginal adjustment of the kind considered by the Crown would effectively involve “impermissible tinkering”, a phrase which, of course, your Honours would have heard before and which is frequently advanced when the Court of Criminal Appeal says there might be ‑ ‑ ‑

KIRBY J:   This is not tinkering.  We are talking about a reduction from 20 years to 16.  It is four years of liberty.

MR SUTHERLAND:   Well, in fact, it was said to be a result of 15 and to impose a sentence of ultimately 22 years with 15, which was what was advocated in the proportional proposition advanced on behalf of the applicants, would result in a sentence of such manifest inadequacy as to engender a justifiable sense of grievance in public confidence in the administration of justice.  It cannot be ignored – and I know Justice Hayne may rebuke me for touching again on the facts – but it cannot be ignored that this was an importation of 389 kilos.  There has never been an importation of heroin within a bull’s roar of this one in the history of narcotics in Australia ‑ ‑ ‑

HAYNE J:   It may be, but the question is whether there is a point of sentencing principle that is raised.

MR SUTHERLAND:   The point of sentencing principle, in our respectful submission, that is sought to be raised is one which would seek to undermine the exercise of discretion of the second Court of Criminal Appeal.  It was a proper exercise of discretion by them.  The hiccup, as it were, the only argument is by these applicants, “Look, we did not have an argument on sentence at the time we were” ‑ ‑ ‑

KIRBY J:   But that seems to be an argument in a special leave application in Court of Appeal No 1, not in an argument on the parity question from Court of Appeal No 2.  The Crown did not appeal from Court of Appeal No 1, therefore, we accept that as a factum.  You could have sought special leave to appeal from that decision of Court of Appeal No 1.  You chose not to do so.

MR SUTHERLAND:   That is so.  I am not sure that the Crown would necessarily be in a better position to say “Look, we came here and we didn’t get special leave”.  I mean, one ‑ ‑ ‑

KIRBY J:   Well, you have three judges saying later it was itself erroneous.

MR SUTHERLAND:   Quite so, but whether or not that would have excited special leave we do not need to debate.  Certainly, that is a view that the Crown has to decide in electing whether to challenge what it sees was a ‑ ‑ ‑

KIRBY J:   I do not think I ever said that in the Court of Criminal Appeal, however ‑ ‑ ‑

MR SUTHERLAND:   Your Honours, ultimately the Crown respectfully submits that what happened in the Court of Criminal Appeal No 2 was an exercise of discretion by that court which was properly open to it.  The end result left a sense of grievance, but not one which was justified when one analyses the reasons for the supposed sense of grievance.  When one looks at the sequence, the Court of Criminal Appeal No 1 heard submissions and were reserved for some considerable period of time.  Court of Criminal Appeal No 2 heard a challenge to conviction at a time when Court of Criminal Appeal No 1 was still reserved.  The sentence argument was held over because the only possible argument was, “Look, if the Court of Criminal Appeal No 1 reduces the captain, we might want to be heard.” 

The Crown respectfully submits, what happens if they are dealt with in reverse order?  What happens to Mr Chen who has already been up to the High Court and been refused special leave, but who did not argue parity?  Does he go back and say, “Can I have another go because I now have a justifiable sense of grievance because a subsequent sentence passed on somebody else who was an offender leaves me feeling upset at the result?”  We respectfully submit that the starting point – and I go back to challenging what happened in Court of Criminal Appeal No 1 merely to buttress what happened in the second Court of Criminal Appeal and not to say the Crown should have appealed, because they did not.

But the comparison between the captain of the ship and the man who was a rollover, who was fundamental to the prosecution of the others in multiple trials, was arguably not a proper comparison in the first place and it was found to be, as so frequently in these cases, that the man that put his hand up first said, “I want to plead guilty and I want to give evidence against others”, underplayed his hand at the time that he was sentenced.  Where an inadequate sentence or a wrong sentence is passed upon him, it can hardly be a touchstone for a comparison with others more senior in the criminal enterprise subsequently. 

To compound the error, as the Court of Criminal Appeal No 2 found they would be doing were they to have the parity principle lead to an intervention with the present appeals, would lead to a sense of grievance in public confidence in the administration of justice, we would respectfully submit.  Your Honours, I do not think that there is anything further I can usefully add to the written submissions.  I am just reminded to tell your Honours in relation to the disposition of the other persons in the

enterprise that the four on the beach – not the three who came in on the boat, but another four on the beach – three of the four received life sentences with various nominated minimum terms. 

KIRBY J:   Yes, we have that set out at page 300, I think.

MR SUTHERLAND:   No, these are another four of ‑ ‑ ‑

KIRBY J:   These are additional people, I see, of the eight?

MR SUTHERLAND:   No.  There were eight minor crew members who were acquitted.  There were three on the boat who were crew members – the captain and the two officers who were convicted – three Chinese on the boat – one rolled over, two were sentenced – and four Chinese on the beach.  Of those four, three got life sentences, one got a determinate sentence, each of those the subject of challenges to the New South Wales Court of Criminal Appeal fixed in December before a bench of five to resolve the difference between courts 1 and 2, as I understand it.

GLEESON CJ:   Thank you, Mr Sutherland.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, just on that question of if there is amendments to this sentence then Mr Chen, who received a sentence of life imprisonment without parole, would be able to come back.  Mr Chen, in fact, came to this Court on an application for special leave in May 2003.  The decision in Mandagi had been made in March 2002.  On his application for special leave he made no reference whatsoever to the decision in Mandagi.  It was not part of the basis of his challenge to the sentence.  So that that contention simply is not supported by the facts.

If I can just draw your Honours’ attention to what the Crown said in the Court of Criminal Appeal in the applications that were made by the present applicants.  At page 309 of the application book, alongside line 40:

What the Crown does concede, however, is that the applicants would have a legitimate sense of grievance should there be no reduction of their sentences following this Court’s resentence of Mandagi.  The Crown acknowledges in its submissions that in the light of the judgment in Mandagi the sentences of life imprisonment imposed upon each applicant cannot be sustained, and that by necessity a fresh non-parole period should be imposed.

Now, that was a proper application of the principles of parity, one conceded by the Crown in the Court of Criminal Appeal.

Your Honours, Justice Hayne asked a question whether the principle which had been established by the judgment in Tisalandis and what Sir Laurence Street had said about the need to take into account an earlier sentencing decision, even though it was considered to be wrong, has not been ‑ ‑ ‑

HAYNE J:   No, I asked about Postiglione and the decisions of this Court.

MR BYRNE:   Yes.  Tisalandis preceded the decision in Lowe.

HAYNE J:   Yes, I understand that.  I asked about the decisions of this Court.

MR BYRNE:   Yes, I appreciate that, your Honour.  In this Court, the decision in Tisalandis was approved and most particularly in this Court in the decision in Lowe154 CLR 606 the specific references that might be of assistance are firstly in the judgment of Justice Mason, as his Honour then was, at page 613 where his Honour posed the question in the final paragraph on the page:

what is the correct principle to be applied in cases of discrepancy?  It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.

At page 623 of the same judgment Justice Dawson said – and if I can refer your Honours to approximately the middle of the page where in that lengthy paragraph his Honour said about point 4:

justice should be even‑handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co‑offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence –

Then after reference to the relevant authorities, including Tisalandis, his Honour said this:

This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co‑offenders even where the sentence varied was not in itself excessive.

GLEESON CJ:   Then the next two or three sentences raise the age‑old problem, do they not?

MR BYRNE:   Yes.

GLEESON CJ:   There is nothing new about this problem.

MR BYRNE:   No, it has to be said that the judgment of this Court in Lowe is probably one of the most frequently referred to decisions in the decisions of both Courts of Criminal Appeal and courts at first instance in the criminal jurisdiction.  It is a perennial problem.  But the approach that was said to be the proper approach in Tisalandis, and endorsed by this Court in Lowe, simply was not taken in this case.

What the Court of Criminal Appeal did in this case, contrary to the submissions of both parties – and, of course, that is not binding on the Court – was to analyse the earlier judgment in Mandagi to declare it as being wrong and to refuse to follow it in any way at all.  That approach, in our submission, was wrong and it has left these applicants with life sentences compared with a person who was acknowledged by everybody to be a person of greater criminality who has a sentence of a determinate nature which is totally different in character.  There is not a disparity of a tinkering kind to be remedied; it is a stark contrast.  It is a profound difference.  Those are our submissions.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 11.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.36 AM:

GLEESON CJ:   The principles to be applied in cases such as the present are well established and are stated in such cases as Lowe v The Queen (1984) 154 CLR 606, Postiglione v The Queen (1997) 189 CLR 295 and R v Tisalandis [1982] 2 NSWLR 430.

A majority of the Court is not persuaded that there has been any miscarriage of justice in this matter.  The sentences imposed on the applicants, viewed apart from the sentences imposed on the offender Mandagi, were plainly open.  It was open to the Court of Criminal Appeal to conclude as it did, that the sentence finally imposed on Mandagi does not reveal any undisclosed error in the sentencing of the applicants.  Further, it was open to the Court of Criminal Appeal in the exercise of its discretion to conclude that considerations of parity in the particular circumstances of this case did not require an alteration to the sentences of the applicants.  The applications are dismissed.

KIRBY J:   I would have granted special leave.

GLEESON CJ:   We are going to adjourn for a short time to reconstitute.

AT 11.38 AM THE MATTERS WERE CONCLUDED