Smith v The Queen

[2022] HCATrans 233

[2022] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2022

B e t w e e n -

RACHEL ANTOINETTE SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 1.30 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.C. HOLT, KC appears with MS Z.G. BRERETON for the applicant.  (instructed by Owens & Associates)

MR C.W. HEATON, KC appears with MR C.W. WALLIS for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J:   Mr Holt.

MR HOLT:   May it please the Court.  We require an extension of time, which my learned friend advises is not opposed by the Crown. 

GAGELER J:   Very well.  You may proceed.

MR HOLT:   Thank you, your Honour.  This case deals, of course, with the parity principle which was last considered on our researchers by this Court in Green in 2011.  As we have set out in the application, since Green, the approach to that principle – that is, to the parity principle – has taken different paths – quite diametrically opposed paths – in different States on a central question of how far an intermediate appellate court can reduce a sentence to comply with the parity principle.

As we have set out in Western Australia, New South Wales, Tasmania and the Northern Territory, what we respectfully submit is the correct position based on Green has been adopted; that is, that a sentence can be reduced to a level which would otherwise be manifestly inadequate, so long as it is not – to use the words this Court adopted in Green, taken from Chief Justice Street – an affront to justice, whereas, in Queensland and Victoria – sorry, your Honours, we appear to ‑ ‑ ‑

GAGELER J:   I can hear you again now.

MR HOLT:   Thank you, your Honour, we can now hear and see you.  I apologise.

I had indicated the position that had been taken in Western Australia, New South Wales, Tasmania and the Northern Territory, consistent in our submission with Green.  In Queensland and Victoria, quite straightforwardly, a very different approach has been taken; that is, that it is not appropriate to reduce a sentence, to comply with the parity principle, to one which is manifestly inadequate.  And, in our submission, even just that question alone with such a significant distinction between intermediate appellate courts on an important question of principle warrants special leave.  We understand the respondent’s position ‑ ‑ ‑

GAGELER J:   Do we actually get to that question?

MR HOLT:   I was just going to address that, your Honour.  There are two reasons why we say that we do get to that question.  The first is because there is, in our respectful submission, plainly unjustified disparity in this case, and so the question of what could then be reduced to becomes live.  But perhaps more importantly, we get to that point here because it was, on a proper reading, in our submission, a significant part of the Court of Appeal’s reasoning in this case, and I might deal with the second point first.

Can I invite the Court to go to the application book at page 42, please, where the Court will see – this is in Justice Applegarth’s reasons, most of which the other members of the court agreed with – at paragraph [75] where his Honour sets out the principle that a reduction cannot be justified to one which is “inappropriately low”, and then what is cited there are, tellingly, in our submission, only Victorian and Queensland authorities, and it cannot be reduced to one which is “wholly inappropriate or outside the range”, again citing Queensland authority.  But then if one goes to page 57 of the application book at paragraph [127], which is at page 51 – I apologise.  This is where Justice Applegarth was here dealing with this application itself, and specifically as part of that reasoning process held that:

The head sentence that the applicant’s counsel urges on this appeal, namely a head sentence of nine years, with parole eligibility set at one half involves, in my view, a head sentence that is inappropriately low in all the circumstances, including her mitigating circumstances and early plea.

And so, the reasoning was not simply there is not unjustified disparity.  Bound up in that essential part of that reasoning, in our submission, was the proposition that that which we were seeking, which was, of course, a very modest reduction in the head sentence to get it below 10, such that the non‑parole period could be at large, rather than set at 80 per cent, was thus available.

But the other basis that I indicated to your Honour Justice Gageler was that, in truth, there is unjustified disparity here, and so, one cannot avoid the question of reduction, especially given the critical pivotal importance of the 10-year mark in this kind of a sentencing regime.  Here, of course, we are dealing with a five-year difference in actual prison time between two people described in an agreed schedule of facts as being partners charged with the same trafficking over the same time period, and also, domestic partners.

There were differences which have been acknowledged throughout this process, one of age and one of some differential in role, but nothing like warranting a five-year difference in actual prison time which is, in our respectful submission, on its face, an affront to principles of equality before the law.  The reliance that the Court of Appeal and that the Crown here place on the small difference in the head sentence, in our respectful submission is apt to distract, we say respectfully.

Sentencing, of course, is a practical process with a punitive outcome, and then when it is talking about imprisonment, the notion that someone might lose liberty for the whole of a sentence to the head sentence is unrealistic.  The non‑parole period here is, in truth, almost certain to be the actual difference in the period of loss of liberty and a difference of five years is one which stands out, in our respectful submission, as being obviously unjustified.

The reliance that is placed upon what I call different sentencing regimes, in our respectful submission, is also apt to distract for this reason.  These were not different regimes in the sense that one might see that, for example, with a regime for the sentencing of a child versus an adult, this was simply a statutory consequence of a head sentence was 10 years or more of a non‑parole period on a mandatory basis of 80 per cent.  But that outcome itself, of 10 years, or nine years, or 10 and a half years is a product of an intuitive synthesis.

That outcome, that is the result in terms of the non‑parole period as part of the synthesis, the parity principle had to be applied in that setting, and the sentence that was imposed was literally on the boundary – that is, at 10 years, a day shorter, and the disparate outcome in this case would not have occurred; so it cannot be said that there is a substantial buffer – if I can put it that way – and contrary, in our respectful submission, to the conclusion that at least Justice Bond reached in his Honour’s reasons on this appeal, there was nothing in the reasons of her Honour the learned sentencing judge to indicate that parity was taken into account at all.

Indeed, for what it is worth, we have noted in paragraph 14 of the special leave application that in an exchange with counsel for Mr Cheers, her Honour had indicated that, in her Honour’s view, it would be wrong to take into account the parity principle.  That in itself was an error that warranted correction, in our respectful submission.  So, because this is, in our respectful submission, an obviously just unjustifiably disparate sentence, and because the reasoning of Justice Applegarth that I have taken the Court to used, at least to buttress, and probably more so in terms of the

intellectual reasoning process, the notion that the sentence that would be otherwise imposed would be one that was inappropriately low or outside of the range, the question of principle, which in our submission plainly arises in the disparate approaches taken by different intermediate appellate courts following Green is live in this case.

As will be obvious from the special leave application, our respectful submission is that President McLure in Beins – if I am saying it correctly – in terms of his Honour’s assessment of what Green stood for is correct, that is, that a court has the power to reduce a co‑offender’s sentence to a level that is manifestly inadequate but short of being an affront to the administration of justice in order to avoid disparity, and that is incapable of reconciliation with at least the Victorian position in Farrugia, which says it is well established that the application of the parity principle cannot result in a sentence that is manifestly inadequate, and that is a patent difference which, on an important point of principle, in our submission, warrants correction.  Unless I can assist the Court, those are our submissions.

GAGELER J:   Thank you, Mr Holt.  We will retire to consider the course we will take.

AT 1.39 PM SHORT ADJOURNMENT

UPON RESUIMING AT 1.44 PM:

GAGELER J:   Mr Heaton, we do not need to hear from you, thank you.

Having regard to the manner in which Justice Applegarth stated his conclusion on ground 2 of the appeal to the Court of Appeal, we are not persuaded that the application for special leave to appeal properly raises the question of principle argued to warrant the grant of special leave to appeal.  There will be an extension of time, but special leave will be refused.

The Court will now adjourn until 2.30 pm Eastern Daylight Saving Time.

AT 1.45 PM THE MATTER WAS CONCLUDED