Smart v Esanda Finance Corporation

[2001] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M88 of 2000

B e t w e e n -

JOHN WHITESIDE

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Melbourne  No M89 of 2000

B e t w e e n -

KRISTIAN PETER DIEBER

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001, AT 11.04 AM

Copyright in the High Court of Australia

__________________

MS J.G. MORRISH, QC:  If it please the Court, I appear with my learned friend, MS L.A. TAYLOR, on behalf of each of the applicants.  (instructed by G.R. Bryant & Associates)

MR G.R. FLATMAN, QC:  May it please the Court, I appear with MS S.E. PULLEN, for the respondent.  (instructed by the Solicitor for Public Prosecutions)(Victoria))

GUMMOW J:   Thank you.  Is it convenient to deal with these matters together?

MS MORRISH:   Yes, your Honour.

MR FLATMAN:   Yes, your Honour.

MS MORRISH:   If the Court pleases, in these submissions we will not be responding to the Director’s outline, given that the outline essentially does not mount argument to meet the arguments that were outlined by each of the applicants. 

Perhaps if we could deal with ground 4 first.  Clearly, this was a Director’s appeal and the principles are well known and we do not propose to repeat those.  But as a result of the order of the learned sentencing judge ‑ ‑ ‑

KIRBY J:   It is said somewhere that they are rare in Victoria, is that so, because they are not rare in New South Wales?  Crown appeals are very common and increasing in New South Wales.

MS MORRISH:   I do not have information about the statistics.

KIRBY J:   Are they rare, can you say anything, or maybe Mr Flatman can tell us, if necessary?

MS MORRISH:   I cannot, yes, I cannot comment on that.  But, clearly, in this case what was exceptional was the fact that each of the applicants, although ordered to serve a term of imprisonment, had the balance of their term of imprisonment suspended, which effectively meant on the day they were sentenced they were each released after having served approximately five and six months respectively.  It is well established that, in our respectful submission ‑ ‑ ‑

KIRBY J:   That does seem a very short sentence for what was described as an assault that involved one of the accused saying, “I will kill you”, or words to that effect?

MS MORRISH:   But those words were not uttered in respect of the deceased, they were uttered in respect of a separate victim and in respect of a charge which was never pursued. 

KIRBY J:   But it does give colour to the attitude of one of your clients?

MS MORRISH:   Well, we do not propose to argue that ‑ ‑ ‑

KIRBY J:   I am not quite sure what we should take of the evidence of the witness who happened to oversee the assault.  You attack it, but I do not quite understand how.

MS MORRISH:   In relation to that, the witness who was up in the hospital ‑ ‑ ‑

KIRBY J:   A nearby building.

MS MORRISH:    ‑ ‑ ‑ observing from the window, described an attack which was totally inconsistent with the version that was accepted by the Crown, including an account where each of the applicants were continuing to attack the victim while he lay on the ground.  The clear evidence was that, in fact, a bystander was attempting to assist the victim and that was what the witness from the window must have seen.  Also, as to the number of blows that were sustained, the medical evidence supported a lesser number of blows that were sustained and the learned prosecutor, Mr Morgan-Payler, QC, made certain concessions about how the medical evidence must affect the evidence of the witness, but not denying, of course, that what the witness saw was an assault, where a number of blows – leaving aside how many, but where a number of blows were struck to the victim.

What we say, however, is that this case raised for consideration in the court below a discretion which had to be considered as a threshold question prior to the Crown was permitted to ‑ ‑ ‑

GUMMOW J:   You have to show, have you not, at this level that the Court of Appeal either misunderstood or misapplied the relevant principles relating to prosecution appeals?

MS MORRISH:   Yes, and that is what we submit.  We submit that in order to have succeeded, the Crown ran the case totally inconsistently to the way it ran the case in the court below.  One of its principal complaints to the court below was insufficient weight was given to the aspect of general deterrence.  However, in the court below the prosecutor conceded when the learned sentencing judge said, “Well, this is how I propose to deal with the aspect of general deterrence.  Do you have anything to say about that?”  to which the prosecutor responded:

I don’t want to put a contrary view to the views your Honour has expressed.

So the threshold question that the Crown had to deal with was whether or not it could satisfy the discharge of an onus that it should now be able to succeed on its invitation for the court to exercise its discretion in its favour, notwithstanding the concessions that were made before.  However, before the court below not one submission was made as to why the Crown should be permitted to run the case contrary to the way it had put it in the court below. 

Now, the law, in our respectful submission, is quite clear on this point and we respectfully submit it is well articulated in Howlett’s Case which we have included behind tab 15, 97 A Crim R 153. That case involved sentence in relation to a drug importation and in that case the court had held that the sentencing process had miscarried and the sentence was manifestly inadequate. However, the prosecution was not entitled to put on appeal arguments against the sentence imposed which it could and should have put to the sentencing court. In this case, we submit, not one submission was made arguing why the discretion ought be exercised in favour of the Crown, not there, not in the court below and not even here. Therefore, we say ‑ ‑ ‑

KIRBY J:   Not even manifest inadequacy?

MS MORRISH:   Manifest inadequacy was run, but the question of general deterrence ‑ ‑ ‑

KIRBY J:   That is the aspect of it that seems to stand out, at least in my present thinking, that that would have been open to the Court of Appeal to conclude that the sentence which the primary judge ultimately imposed was manifestly inadequate to the circumstances which were not really contested.

MS MORRISH:   The manifest inadequacy, however, needs to be considered in the context of how much weight you give to the question of general deterrence and as general deterrence was submitted in the court below to be one of the primary sentencing considerations that needed to be given weight to, we say that the Crown really had that threshold argument.  It had to overcome why was the Crown entitled to change its position from the court below.  We say as a matter of law, the discretion could not be exercised in favour of the Crown because no submission was made there and still no submission is even made to this Court. 

Could we reiterate that in Howlett that case involved a finding by the Criminal Court of Appeal in South Australia that, indeed, sentencing error had occurred to such an extent that the sentence was so inadequate as to manifest error.  But what the court referred to there was the tension.  On the one hand, you have a sentence that is apparently manifestly inadequate and, indeed, what the court concluded was the sentence actually sent the message to the community that it is worth taking the risk, or perhaps people might want to get involved in the drug trafficking trade.  But, notwithstanding that, the other factor that needed to be balanced against that was, however, how much weight do you give to the fact that the Crown acquiesced in the court below.  In that case, in Howlett’s Case, the court exercised the balance in favour of the accused persons, saying at page 165 of the judgment:

the Crown is under a duty to assist the court to avoid appealable error.  In allowing the contents of the letter to stand and to be repeated without qualification, the learned sentencing judge was led into an error of principle in ordering immediate release where it was plainly unwarranted.  The DPP now seeks to have that error of principle corrected.  Indeed, in order to obtain leave it must, consistent with the principles relating to Crown appeals against sentences generally, be able to demonstrate error of principle in the sense in which the cases have discussed that phrase.  To make that submission now is inconsistent with the attitude taken before the learned sentencing judge.

It follows that this Court really has no option but to refused leave to appeal.  To my mind this is an unsatisfactory result, but the weight of authority would seem to allow no alternative.

KIRBY J:   Now, at this level, we have to consider whether a miscarriage has occurred.  You are suggesting, essentially, a procedural fairness point, that the matter, having been conceded at trial at the sentencing, it ought not to have been changed?

MS MORRISH:   Yes, yes.

KIRBY J:   But that that would not have been a correct concession if it was indeed made, would it?  I mean, there is a matter of general deterrence against vigilantism that would properly be taken into account in sentencing.

MS MORRISH:   Well, we say that as a matter of law, that threshold question was never addressed, yes.

KIRBY J:   I realise you say that, but just assume the Crown can overcome the procedural fairness point, or that we do not agree with Howlett as an absolute rule, it would not be correct to say that a sentencing judge should not take into account general deterrence against this kind of action of taking the law into one’s own hands, to the point of a violent assault leading to death.

MS MORRISH:   We concede that general deterrence in vigilante cases is an important consideration.  However, what the court needed to consider that this is the third most senior prosecutor in the Office of Public Prosecutions, that his experience in these ‑ ‑ ‑

KIRBY J:   Yes, we know Mr Morgan-Payler well.

GUMMOW J:   No, no, no.

MS MORRISH:    ‑ ‑ ‑ yes, and that he made that concession, and that to permit such a ‑ ‑ ‑

GUMMOW J:   If the concession was made, it was made by counsel.  It does not matter which particular counsel.

MS MORRISH:   Yes, but all we are saying is that given this is a ‑ ‑ ‑

GUMMOW J:   You cannot run a legal system on that sort of ad hominem basis.

MS MORRISH:   Well, given that this was a Director’s appeal and there was, in effect, the final forum to agitate matters such as this, it is unfair as a matter of administration of justice that an appellant needs to come to this Court to set right a matter that was clearly addressed by him in the court below and was never met at all by the court below. 

The other arguments that we wish to make relate to the relevance of the reasonableness of the belief, the state of mind question, which touches two of our grounds.  That relates to the gravity of the offence.  Again, I suppose that is interrelated to the exercise of the discretion of the court and to whether or not the sentence was manifestly inadequate.

CALLINAN J:   But Ms Morrish, the big problem about everything you say, it seems to me, is that when one of the victims escaped, the two applicants continued to pursue the unfortunate man who was killed.  They pursued him out of the park, into the street, for some considerable distance.  He was a much older man who easily have been restrained; they made no effort to restrain him, they systematically bashed him.  Now, it seems to me, that on those facts which the Court of Appeal thought compelling, the consequence in the Court of Appeal was inevitable, regardless of any of these other matters to which you are referring.  Indeed, they seem to be the dominant considerations in the mind of the Court of Appeal.  But it had got beyond the stage of being vigilante, it was just a senseless and irrational bashing, far removed from the scene of an imagined crime.

MS MORRISH:   We say this is not a tariff case, we are relying on the recent authority of Dinsdale and we are not arguing that the sentence was outside range, the sentence that was imposed by the court below was outside range in the same way that that matter was raised in the recent matter of Dinsdale.  But what we say is that in the application of principle, to take your Honour Justice Callinan’s point about the state of mind, we say that to have made such a finding was contrary to the findings of the learned sentencing judge and ‑ ‑ ‑

CALLINAN J:   The learned sentencing judge found, in effect, that is was an almost inevitable consequence of an “unfolding tragedy”.  Now, with all due respect, I find it very difficult to accept that finding.

GUMMOW J:   It was not inevitable at all.

CALLINAN J:   It is a perverse finding, I would have thought, and the Court of Appeal was therefore entitled to interfere with it.  How could you say that it was an inevitable consequence when the man was on  his own by this stage and being pursued down the street, held by two much stronger and younger men and senselessly bashed to death?  Nothing inevitable about that.

MS MORRISH:   Your Honours are accepting the court below’s interpretation that his Honour did not find that each of the applicants were responsible for their own actions?  I am sorry, I am not sure?

GUMMOW J:   His Honour fixes on this word “inevitable”.  It is just nonsense, to put it in colloquial language.

MS MORRISH:   Well, true, his Honour had a particular literary style, but his Honour accepted the gravity ‑ ‑ ‑

GUMMOW J:   It is not a question of literary style.  There is much more involved here than literary style.

MS MORRISH:   We say that his Honour correctly balanced, taking into account the concessions that were made, the factors personal to the accused, against the factors that he was required to take into account under general sentencing principles.  That notwithstanding the gravity of the offence - and one has to remember, in our respectful submission, that true it is that there was a bashing, that the acceptance of ‑ ‑ ‑

GUMMOW J:   It is not bashing, there was a killing.

MS MORRISH:   Yes, but the killing was unintended and unexpected, and the Crown accepted that, and no doubt had the Crown wished to say that the intention was to cause serious injury as a result of that assault, it could not have accepted a plea to manslaughter.  But the acceptance of the plea to manslaughter must take with it a state of mind falling short of an intention to kill or an intention to do serious injury.  In this case, what the sentencing judge gave weight to was the state of mind, namely, why did the applicants do what they did, and they each entertained a belief that the victim had, in fact, raped Tsionis. 

KIRBY J:   This was a finding made by the primary judge in your clients favour, and his finding was that their belief was reasonable, I think?

MS MORRISH:   Yes, the finding was that the belief that Tsionis had been raped was reasonable, but he did not deal with the reasonableness of the belief that, in fact, the deceased was the rapist.  We say his Honour was right not to embark into that exercise.  Once the belief is held, it needs to be taken into account from two points of view, firstly on the question of the gravity of the offence, but secondly, on the factors that are personal to an accused for the purposes of mitigation.  On the question of factors personal to the accused going to mitigation.  If the state of the unreasonableness of the belief is to be taken into account, then that, we say, superimposes a layer that just is not there in section 5 of the Sentencing Act.  That is an objective test.  So, the sentencing court ‑ ‑ ‑

KIRBY J:   Your best point, and your only point, as it seems to me, is the procedural fairness point, that given the concessions of the Crown before the sentencing judge, that you do not get to the large questions of the reaction to inadequacy of the sentencing judge’s sentence unless you can overcome the Crown’s concession that general deterrence was not a factor in this case.

MS MORRISH:   Yes.

KIRBY J:   But put against that is that there are lots of other considerations, apart from general deterrence, and in any case, that a Court of Criminal Appeal must ultimately look at the final sentence after going through all the principles, and say, is this sentence manifestly inadequate or manifestly excessive.

MS MORRISH:   Yes, really, we base this on the fundamental point that procedural fairness was denied and that this is one sort of case where procedural fairness ought to be accorded, given the circumstances in which each of the appellants found themselves before the court below and were thereby denied any opportunity to address that issue.  It might be, had they had that opportunity, the Court might have come to the conclusion - we say as a matter of law, would have come to the conclusion - that it ought decline its discretion to intervene, notwithstanding it came to the conclusion that the sentence was manifestly inadequate. 

KIRBY J:   But it could not have affected evidence, could it?  All the evidence relevant to sentencing was before the judge.

MS MORRISH:   Yes.

KIRBY J:   It is not as if the concession closed off the adducing of any particular evidence relevant to general deterrence or the inadequacy of the sentence?  It is not an evidence point?

MS MORRISH:   That is right, no, it could not have affected ‑ ‑ ‑

KIRBY J:   So, in that sense, if the Court of Appeal were of the view that the concession was wrong, or to be narrowly construed, or not applicable, they were in as good a position as the sentencing judge when they found error to substitute the sentence that they thought was appropriate.

MS MORRISH:   We say Howlett is not the only authority on the point, that there are other authorities on the point which make it clear that that

discretion is a very valuable or jealously guarded right that a respondent in a Crown appeal has.  I do not that I can be of further assistance.

GUMMOW J:   Thank you.  Yes, Mr Flatman.

KIRBY J:   What do you say about this concession point, Mr Flatman.

MR FLATMAN:   If it please the Court.  Yes, it is our submission, your Honour, that to call the comments conceded by the prosecutor a concession is not a fair reading of what took place.  His Honour the learned sentencing judge had a view of vigilante behaviour which was a fairly tight definition in the sense that he interpreted it in terms of premeditated behaviour, as opposed to something that got out of hand and they lost control at the end.  That is apparent right in his very early sentencing remarks.  It is apparent in both judgments of the Court of Appeal.  It was raised by his Honour in the course of argument with senior counsel for the Crown that this was not a case where the two accused set out to reek vengeance or simply in a premeditated way attack the victims. 

He then said it would not be appropriate to give extra - “extra” is in there - weight to deterrence because of this.  That was conceded by counsel for the Crown who always took the position and it has always been the position of the Crown that whatever good intentions the applicants might have had, they had been abandoned at the time they took chase after the two victims, and particularly at the time the utterance was said in relation to the victim, Campbell, and that thereafter they acted to punish the deceased, not to apprehend him.  His Honour the learned sentencing judge accepted that as an essential feature of the gravamen of the criminality.  That was taken up by both judges - of the judgments in the Court of Appeal.

In the judgments of the Court of Appeal, both judges referred to the fact that whilst his Honour in one sense was right that it was not vigilante behaviour, in another sense it was.  The learned Crown Prosecutor at the time of the plea made his position quite clear because he said, “This is at the upper end, this is a serious case of manslaughter”, and he specifically said in the course of his remarks to his Honour, “It would not be a question of a suspended sentence because the sentence would be beyond that”, and that is quite clear and it is articulated in no uncertain terms.  When you look at the whole of the material in the course of the plea, my friend’s submission is not a fair reading of what took place and what is to be inferred from the particular passage.  What has occurred here is that a particular passage is taken in isolation. 

The essential ground of appeal was that the learned sentencing judge had misconstrued the gravity of the offence.

CALLINAN J:   Mr Flatman, can I just confirm one matter with you?  The appeal was decided whilst they were still in prison, is that correct?

MR FLATMAN:   No.

KIRBY J:   Yes, they were.

CALLINAN J:   Yes, I think the appeal was decided within about two months of the sentence, was it not?

MR FLATMAN:   Yes, it was brought on very quickly.

CALLINAN J:   So, it was not a case of their having been released, having served their term and then of having been reincarcerated?

MR FLATMAN:   No, they were released.

CALLINAN J:   But, that was on an application of some kind?

MR FLATMAN:   No,  they were released because the sentence imposed by the learned sentencing judge suspended the balance ‑ ‑ ‑

KIRBY J:   I think he says that, did he, “You will be free to go from the court and return to your families”.

CALLINAN J:   Yes.

MR FLATMAN:   The Director’s appeal was then brought on expeditiously as a matter of special expeditious ‑ ‑ ‑

CALLINAN J:   Yes, brought on within about two months and determined within about two months.

MR FLATMAN:   Yes, and determined, yes.

KIRBY J:   Upon one view, the sentence imposed by the Court of Appeal in resentencing was at the low end of what might have been imposed by a primary judge taking the view of the seriousness of the offences that you are urging upon the Court, and that would be consistent with the principle in Crown appeals?

MR FLATMAN:   Yes, your Honour, yes.

KIRBY J:   Just this matter:  you said somewhere in your written submissions that Director appeals are rare in Victoria.  Did I misunderstand that or not?

MR FLATMAN:   I did not recall that I was specifically suggesting they are rare in Victoria, but what I was saying is that Directors’ appeals should be rarely brought.  The answer to your Honour’s question is that in the year 1999 to 2000 there were 11 appeals.

KIRBY J:   That is much lower than New South Wales, I suspect.

MR FLATMAN:   So far this year, there have been 9 appeals, and I believe that over the last 6 years, the average has been approximately in the area of 10 to 12 to 14.  That comes down from a previous figure some years ago of 25.  But it varied in other years too, but it is a principle of law that Director’s appeals should be rare and I think what I was saying in that outline that Director’s appeals should be rare and are rarely brought.

KIRBY J:   Yes.

GUMMOW J:   We do not need to hear you any further, Mr Flatman.

MR FLATMAN:   Thank you, your Honour.

GUMMOW J:   Yes, Ms Morrish.

MS MORRISH:   Your Honours, could I deal with the point that is made against us, that is, that the concession that we say was made is not a fair reading of the concession which is a submission that is made here also for the first time.  Could we just draw the Court’s attention to the actual passage of transcript.  Unfortunately, you do not have it because I did not know that this was going to be in dispute, but at page 51 of the transcript before the learned sentencing judge, his Honour asked the prosecutor:

what about the principles of sentencing?  The aspect that has troubled me in this, the court rightly sets its face against vigilante behaviour and I have previously spoken about that in sentences and imposed sentences with the element of general deterrence centrally in mind to prevent vigilante behaviour in the community.  On the other hand, I wonder whether in this case it is right to impose a penalty to emphasize general deterrence against vigilante behaviour because tragically I would have thought that the facts of this case speak for themselves and one wouldn’t need an extra element of deterrence to emphasize how dangerous and unacceptable such behaviour is.

In direct response to that, the very next thing the prosecutor says is: 

I don’t want to put a contrary view to the views your Honour has expressed.

So, it is hard to say, we submit, that the concession is not exactly what it means.  To try and relate that to some earlier passage, we would say if that was the Director’s view, he ought to have given us notice that that is what he said about our submission. 

By making the onus now on the applicant to demonstrate that the court fell into sentencing error is to reverse the ordinary onus in Director’s appeals, that we have to come to this place and discharge an onus that the court below went wrong when, really, the shoe should have been on the other foot in the court below.  It should have been the onus on the Crown, as a matter of law.  The Crown fails to discharge onus because it does not say anything at all.  Therefore, procedural fairness, therefore, this issue ought never have come up.  Those are the only matters we wish to respond to.

GUMMOW J:   Thank you.

MS MORRISH:   If the Court pleases.

GUMMOW J:   The applicants have not demonstrated any error by the Court of Appeal in its understanding or application of the principles governing appeals by the prosecution against sentence, nor do we consider that the argument of procedural fairness alleged is sufficiently established or that the sentence imposed by the Court of Appeal involved any miscarriage of justice.  Accordingly, each application is refused.

The Court will adjourn to reconstitute.

AT 11.33 AM THE MATTER WAS CONCLUDED