Soltan v Director of Public Prosecutions; Paranihi v Director of Public Prosecutions

[2011] HCATrans 305

[2011] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M31 of 2011

B e t w e e n -

DANIEL WAYNE SOLTAN

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Melbourne  No M61 of 2011

B e t w e e n -

HOANI PARANIHI

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Applications for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 12.25 PM

Copyright in the High Court of Australia

____________________

MR T. KASSIMATIS:   May it please the Court, I appear with my learned friend, MS H. SPOWART, for the applicants.  (instructed by James Dowsley & Associates)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondents.  (instructed by Solicitor for Public Prosecutions (Vic))

HAYNE J:   Yes, Mr Kassimatis.

MR KASSIMATIS:   Your Honours, in the applicants’ submissions two matters of principle are raised by these applications.  The first is whether and to what extent an intermediate Court of Appeal can on an appeal brought by the Director of Public Prosecutions look to the sentence imposed, being in this case imposed by a different judge to the respondent’s before the Court of Appeal, so as to ascertain or inform the range of sentences pursuant to which a determination of manifest inadequacy might be made.

Taking your Honours then to application book 233, which is the commencement of the Court of Appeal’s judgment below, your Honours will see at application book 211 at paragraph 11 of the court’s judgment that the court acceded to a submission made on behalf of the prisoner, Adams, in his own appeal, that a sentence of five years with a non‑parole period of three years be imposed upon the successful outcome of that prisoner’s appeal. 

At paragraph 76 of the judgment, which appears at application book 223, their Honours, responding to a submission made by counsel below that parity was the province exclusively of the prisoner, in the applicant’s submission, sought with the one hand to eschew any reliance upon parity and with the other did indeed the opposite.  In our submission, the sentence imposed on Adams had no role, no business in determining whether the sentences imposed upon Paranihi and Soltan were manifestly inadequate. 

That, in turn, leads to the second issue raised by this application, with respect, which is this.  Following this court’s, that is, the Court of Appeal, decision in R v MacNeil‑Browne & Piggott, it has become the practice in this State for prosecutors to be asked for and/or to provide numerical ranges beyond or below the parameters of which it is said if the judge imposes sentence he or she would be falling into error.  The vice of that procedure has been compounded in this case because in this case what has always thought to be anthema was permitted, namely, the Crown Prosecutor offered an opinion about the precise sentence that ought to have been imposed on Adams, and the court acceded to the submission and indeed imposed that very sentence. 

That sentence was then said – I am not being facetious – somehow to inform the range of sentences against which Mr Paranihi’s and Mr Soltan’s sentences at first instance could be compared.  It is a procedure which turns on its head, in our submission, this Court’s guidance most recently in Hili v R and Jones v R.  It is a procedure which, perhaps not by design but by reason of outcome, focuses the attention of the sentencing judge on the outcome rather than the application of principle and the sound application of principle.

HAYNE J:   Now, assume for the purposes of argument that some of the defects or any of the defects to which you refer could be established, why would one conclude that the Court of Appeal was wrong to hold there was manifest inadequacy and why would this Court conclude that the sentence in fact imposed on these applicants was not right?

MR KASSIMATIS:   Because as a matter of logic, with respect, a precondition of both those determinations, one, the fact that there had been error and, two, the resentencing, a precondition of both, was the defect to which your Honour makes reference, that is, the defective of looking toward Adams’ sentence as somehow informing the range of sentences properly available, and just like ‑ ‑ ‑

HAYNE J:   But should we bring these matters to this Court if the actual orders made by the Court of Appeal are right – leave aside the reasoning, but if the orders made are right.

MR KASSIMATIS:   The orders are, at the very least, called into question because they are inextricably informed by the sentence imposed upon Adams.

HAYNE J:   Can I just get the numbers right in my head.  At first instance the applicants were given what?

MR KASSIMATIS:   They were given different sentences.

HAYNE J:   What were they at first instance?

MR KASSIMATIS:   Application book 253, your Honours.  Mr Soltan was given a total effective sentence of five years imprisonment with a non‑parole period of two years, one month.

HAYNE J:   Mr Paranihi, four, five with one, nine on the bottom.

MR KASSIMATIS:   Yes, that is so.

HAYNE J:   And after the appeal it was seven, five and six, three with four, three on the bottom.

MR KASSIMATIS:   That is so.  Big numbers.

HAYNE J:   A lot of offending.  Let us not go down that path.

MR KASSIMATIS:   No.  True enough, but even as against this offending, these men are entitled to be sentenced according to law.

HAYNE J:   Of course they are.

MR KASSIMATIS:   Your Honour, I do not want to be descending into dramatics, but the practice of plea hearings and sentencing in this State is at a crisis and we make no apology for the applications we bring.  Only this Court can fix it.  Those are the matters, with respect.

HAYNE J:   Yes.  Yes, Mr Silbert.

MR SILBERT:   If the Court pleases, just taking the last point raised ‑ ‑ ‑

HAYNE J:   Just forgive me, Mr Silbert, I will say for the benefit of counsel in the succeeding matter, that matter will not be taken before 2.00 pm.  2.00 pm for the last matter in the list.  Yes, Mr Silbert.

MR SILBERT:   Making the assumptions that your Honour has made, if the orders are wrong and the ‑ ‑ ‑

HAYNE J:   You will have to tell me what assumptions I have made, Mr Silbert.

MR SILBERT:   Even assuming that the parity was used as a process of reasoning in reaching these final bottom line figures, and the submission is it was not, but even contending it was, for the purposes of simplifying the argument, it is submitted that these orders are right, the sentences are right, the submission made in the respondent’s outline at page 300 of the application book is that there was no miscarriage of justice, the substituted sentence, it is submitted, is plainly within the range and on the basis that if that be so, then there is absolutely no basis for granting special leave in a sentence appeal such as this.  It raises no matter of principle.

My friend tries to insinuate MacNeil‑Browne into the appeal, whereas, in the Crown’s submission, it simply is irrelevant to the bottom line figures ultimately imposed on both of these applicants.  The reasoning did not involve reasoning from the Adams’ sentence and that is the only way that MacNeil‑Browne quotation gets a run.  The submission is that it does not when one analyses the sentence, the seven with the five and six years, three months with four years, three months, that those are well within the range open to the Court of Appeal to find inadequacy on the basis of the Director’s appeal and that there is no point of principle that arises.

HAYNE J:   Implicit in that is the proposition that no question arises about the operation of Division 3 of Part 6.3 of the Criminal Procedure Act, that is, no question arises about the Crown appeal provisions.

MR SILBERT:   Yes, your Honour, that is implicit in that.  It is submitted that no question does arise in relation to that, that this was a standard Director’s appeal brought under 6.3 of the Criminal Procedure Act and that no point of principle arises in relation to that.  So the respondent’s submission, your Honours, is a simple one, namely, the ultimate figures imposed, there is not miscarriage of justice, there is nothing outside the applicable range, the Court of Appeal was entitled to resentence, as it did, under 6.3 of the Act and that there is nothing untoward that would warrant the interference of this Court.  If your Honours have questions of me, I am happy to answer them, but there is no further I can take it.

HAYNE J:   Yes, thank you.  Yes, Mr Kassimatis.

MR KASSIMATIS:   Your Honours, one can have confidence in the final outcome only when one has confidence in the process of reasoning one engages in to arrive at the final outcome.  This judgment below is beset by a number of errors.  The first was the invitation to the prosecutor to provide an opinion about how Adams should be resentenced.  That was done and the court, somewhat surprisingly, acceded to that submission and said very little more about it.  It is said by my learned friend that Adams’ sentence had no role to play in the sentences imposed upon the two applicants.  That is of course not so.  The gravamen on paragraphs 76 to 78 of the judgment is to the contrary.  Mr Adams’ sentence was indeed a centrepiece, according to their Honours, for determining the range of sentences.

HAYNE J:   Where do we find that most conveniently in those paragraphs that you have identified?

MR KASSIMATIS:   At 76 itself, your Honour.

HAYNE J:   Lines?

MR KASSIMATIS:   Commencing halfway down, so 25:

Assuming, without deciding, that the principle of parity cannot be invoked by the Crown as a basis for increasing a sentence to bring it into conformity with a co‑offender’s sentence, and assuming also that there was no error in the co‑offender’s sentence –

I pause there.  Of course, their Honours determined that there was error in the co‑offender’s sentence and that he be resentenced –

notions of equal justice and consistency required that it be given weight as a comparable case in informing the range of sentences that are applicable.

That, with respect, is parity by another name.  The weight given to Adams’ impugned sentence, handed down by a different judge than the judge who sentenced the applicants, can have had negligible legitimate influence on the range against which the applicants were to have their sentences assessed –

The fundamental principle of equal justice that inheres in the exercise of judicial power requires some relativity between the sentences imposed upon co‑offenders.

Moving on over the page at paragraph 78:

The Crown submitted that there was no discernible rational explanation for what otherwise appears to be an inconsistent sentence which was not within the range that was reasonably open to his Honour.  In our opinion, the Crown’s submission is correct.

What their Honours found was, if Adams’ sentence was within the range – they said as much – it followed that the applicants’ sentences were not within the range.  That phrase “the range” is now one which has lost the precision with which it was earlier used.  In our submission, this is an appropriate vehicle to put before this Court the utility of sentencing judges proceeding from a position where the numerical parameters of a particular outcome are identified with precision and then a sentence is somehow discerned from within those parameters by reference to what are now called, unhelpfully, comparable cases.  Those are the matters, with respect.

HAYNE J:   Thank you, Mr Kassimatis. 

The actual orders of the Court of Appeal are not attended by doubt.  The questions of principle that the applicant seeks to agitate would not fall for consideration.  Special leave is refused.

MR KASSIMATIS:   If the Court pleases.

AT 12.42 PM THE MATTER WAS CONCLUDED