Sullivan v Director of Public Prosecutions

[2000] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M65 of 2000

B e t w e e n -

PAUL KENNETH SULLIVAN

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for bail

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 28 SEPTEMBER 2000, AT 2.17 PM

Copyright in the High Court of Australia

MR D.A. DANN:   If your Honour pleases, I appear on behalf of the applicant, Mr Sullivan.  (instructed by Galbally & O’Bryan)

MR J.D. McARDLE, QC:   May it please your Honour, I appear with my learned friend, MR G.M. HORGAN, for the respondent.  (instructed by the Solicitor for Public Prosecutions)

HIS HONOUR:   Mr Dann, I have received your outline of submissions and also the respondent’s outline of submissions.  I have read those and I have read the judgment of the Court of Appeal and I have reread Everett and similar cases.  I think that what would assist me most is if you turned first to why this case would have sufficient prospects of success for a grant of leave.

MR DANN:   Yes, your Honour.  Your Honour, if I can turn to the outline of submission and this issue is taken up at page 3, the third paragraph, where it is submitted that, in fact, the application does have merit and a reasonable prospect.

Now, what is, in fact, put is that this case, Mr Sullivan’s case, his application for special leave, has a real similarity to the circumstances of Everett’s Case in the sense that although Everett’s Case was dealing with an application for special leave – and your Honour will understand what I mean by that in terms of the court in Tasmania – what the High Court looked at was the significance, or lack of significance, that had been attached to the conduct of the Crown before the sentencing judge in the Court of Appeal and for various reasons the Court of Appeal in Tasmania had not given proper significance to the fact that the Crown in that case before the sentencing judge had made no submission as to the inappropriateness of the particular sentencing option.

We say in Mr Sullivan’s case that it was always the position, it was always put that the sentencing judge was being asked to consider a non‑custodial disposition, disposition that would not involve immediate gaol and it is put that the Crown, similarly as they were in Everett’s Case, were on notice that his Honour the sentencing judge was considering just that, imposing a non‑custodial sentence.  Your Honour will remember that the plea went over a number of days.  On the first day the judge called upon or asked the prosecutor – I think the expression was, “All options are open, aren’t they?”  And the prosecutor’s response was along the lines of, “I don’t have submissions.  I am not going to argue for any particular disposition.”

Now, that response was made on the first day and, as your Honour will see, the plea continued over another three days before it was finally disposed of.  We say in that context and in light of what his Honour was trying to by giving the applicant an opportunity to put in place something that would address his drug problem at that time – and that is the reason why the matter kept being adjourned – in light of those adjournments, in light of what his Honour was saying, the Crown were clearly on notice that he was contemplating a non‑custodial disposition and made no suggestion to the contrary.

HIS HONOUR:   Now, what stage of the plea process is 21 June 1999?  Which day is that?

MR DANN:   That is the first day.

HIS HONOUR:   In the respondent’s summary of argument filed in respect of the leave it is asserted at paragraph 2.2.5 that counsel for the Crown stated that he did not have specific instructions as to the sentence and there is then a quote purporting to be a quotation of what counsel said to his Honour.  Do you see that?

MR DANN:   “But it is the sort of matter that your Honour ‑ ‑ ‑”

HIS HONOUR:   Yes, that quote.  May I act on the basis that that was said at the plea on day one?  It would seem simply I do not have a transcript of the plea and I would have thought it was a matter of record but ‑ ‑ ‑

MR DANN:   Yes, we do have a transcript and I believe that, in fact, the transcript will bear that out as accurate, but I am in a position to have that clarified.

HIS HONOUR:   Yes.  What was the judge, that is the primary sentencing judge, to understand by the reference to “high regard to general deterrents”?

MR DANN:   Well, that as a consideration in the sentencing process, as a matter that he would have to consider, general deterrents would be a matter that he would have to have regard to and high regard to.  I mean, that submission certainly was put, but we say that that is a different thing, a far different thing, from suggesting to the judge that there was only one appropriate option.

HIS HONOUR:   I understand that those words were not used, that a difficulty I have which I want to expose so that you may deal with is that reading those words presently divorced from the balance of what happened at the plea – I must say if I had heard those I would have read them as or would have heard them as a suggestion that custodial disposition was most likely appropriate, but, as I say, that is the difficulty I have and I want to expose it so that you may answer it as you see fit.

MR DANN:   Well, in dealing with that, your Honour, I think that type of argument was, in fact, raised in Everett’s Case where there was, as I understand it, at one point a reference by the prosecutor to a – the prosecutor at the sentencing hearing put before the court a particular case ‑ ‑ ‑

HIS HONOUR:   Tol, yes, and it is referred to at 301 of Everett.

MR DANN:   Yes, where, as I understand it, a custodial sentence had been imposed for that particular offence and the Court went on to say in Everett, as I understand it, that be that as it may, be that the fact that that submission was made and reference was made to that case, that would not amount to, it could not be seen as amounting to a submission that suspension of the unexpired term of imprisonment would be inappropriate and I say on behalf of Mr Sullivan, similarly here, that to refer to concepts of general deterrents and having a high regard to general deterrents cannot be construed as a submission that the only appropriate sentence was a custodial sentence, particularly in light of the fact that it was really, in my submission, plain for all to see what was happening throughout this sentencing process.

HIS HONOUR:   Am I right in understanding that the ultimate disposition adopted by the primary judge was a more lenient disposition than that for which the accused, or the then prisoner, had contended?  The prisoner had contended, had he not, for a combination of suspended term and a disposition that could have conditions of, in effect, treatment attached to them?

MR DANN:   Yes.  The primary submission made was for a non‑custodial sentence.  Alternatives were explored, the alternatives being put before the judge at that a time an intensive corrections order, a community‑based order combined with a suspended sentence, and it was pointed out that in terms ‑ ‑ ‑

HIS HONOUR:   You did better than those submissions or am I being unduly charitable or uncharitable probably, I fear, Mr Dann?

MR DANN:   In one sense ‑ I mean, what was pointed out to the judge is that the community‑based order had with it a period of two years that could be attached to it whereas the intensive corrections order had only one year.  So, I mean, in one sense one could see perhaps what his Honour was trying to do by imposing a greater period of time.

HIS HONOUR:   But what was notable was there was no suspended sentence included.

MR DANN:   That is right.

HIS HONOUR:   Then let me go a stage further.  There may or may not be difficulties about these stages we have just been considering.  What is the consequence that you attach to the failure of the Crown at initial sentencing to either sufficiently raise the prospect of custodial disposition or, as you would have it, not even to raise it at all?  What consequence do you say follows from that assumed state of facts?

MR DANN:   Well, a number of consequences, your Honour, at different levels.  Before the judge – I mean, I think this was referred to in the reply.  I am not sure whether your Honour ‑ ‑ ‑

HIS HONOUR:   Perhaps I should refine my question.  What consequence followed for the Court of Appeal?

MR DANN:   Well, in our submission, that is a difficult question, because it does not seem that the Court of Appeal took the matter into account.

HIS HONOUR:   Which leads to separate questions about how it was raised or whether it was raised there.  Let us leave those aside for the moment.  What do you say should have followed in the Court of Appeal as a consequence of how you would say the plea proceedings are to be understood?

MR DANN:   Well, in my submission, your Honour, as the authorities indicate, there are separate questions as to whether the sentence is adequate.  That may be one question.  Even if the Court came to the view the sentence was inadequate, then, in the exercise of the Court’s discretion, there were matters to consider, and this obviously was one of them, the attitude of the Crown in the court below, and if the Court took that matter into account and gave it the significance that the authorities indicate it should be given, then certainly a different – well, the decision to exercise a discretion to allow the appeal may not have been made or, secondly, the decision to impose an actual custodial sentence as opposed to a suspended sentence or another sentence may also have been not made.

HIS HONOUR:   See, the point that I am struggling with at the moment is, if the Court of Appeal could properly, notwithstanding what happened below, form the view that there was manifest inadequacy, it would follow that the sentencing discretion would fall for it again and an appeal to this Court would then focus upon the way in which that discretion had been exercised.  That is not a very likely candidate for leave.  Other considerations might perhaps have intruded if because of what happened at plea it was not open to the Court of Appeal to conclude manifest inadequacy and for the moment, at least, I cannot see that that second form of proposition is tenable.  That is, I cannot see that what happens at plea – let us take a hypothetical which may point up the difficulty I am having.  Let it be assumed at plea the judge positively asks the prosecutor, “Is a non‑custodial sentence appropriate or available in a case like this?”  Let it be assumed counsel for the Crown says, “Yes, it is open.”  Not this case - different.  Would that course of events mean that, on a Director’s appeal to the Court of Appeal, that court could not properly conclude manifest inadequacy?

MR DANN:   Your Honour, the submission would be that, although the Court of Appeal could conclude manifest inadequacy, the court would still have to then come to the decision-making process in the exercise of discretion, even in light of manifest inadequacy, whether to allow the appeal, because that is the very thing about Director’s appeal, that they need to be exceptional circumstances for a Director’s appeal to be allowed, and the authorities that are canvassed in the submissions deal with such situations, where the court comes to the view, “Well, it was an inadequate sentence but because of what happened and giving the proper significance to what happened, even though we think it was inadequate, we will not allow the appeal.”

HIS HONOUR:   I think that it may well be an unresolved question about legislation in the Victorian form where the Director has a right.  Let it be assumed for the moment though that that question were to be resolved in your favour.  If the Court concludes manifest inadequacy, the sentencing discretion falls to it again.  In disposing of the matter it may well be arguable, it would seem to me, that the Court, taking account of the course of events below, should nevertheless say, no different sentence should be passed in the circumstances of this case, notwithstanding its manifest inadequacy.  That is a tenable point of view.

Assuming that point of view were adopted, assuming it were right, it concerns, one, the way in which the Court of Appeal re-exercises the sentencing discretion; two, it directs attention very closely to the way in which the appeal, as opposed to the plea, was conducted, and whether, on the hearing of the appeal, the course of events below was seen as a real and lively issue.  Now I am struck at the moment, Mr Dann, by the complete absence of any reference in the reasons of the Court of Appeal to any such matter having been argued.

MR DANN:   Well that is the very ‑ ‑ ‑

HIS HONOUR:   I know you say, there is the error, but why do I conclude that it was a real and lively issue that was, in fact argued, as opposed to could have or should have been argued, before them?

MR DANN:   Without wanting to give evidence, I can tell you that, because I appeared for the applicant before the Court of Appeal, I have a written note of the submissions that were made, I handed all the authorities in this area to the court.  It was put at a number of different levels that this conduct of the Crown was significant in the exercise of the court’s discretion, not only to allow the appeal, but when it came to re-sentencing, and issue is taken most strongly, with the suggestion by the Crown, that the point, - I think the reference was, it was raised only fleetingly, the strongest possible issue is taken with that ‑ ‑ ‑

HIS HONOUR:   Yes.  Well then, can I just think aloud a moment so that again you may deal with it.  A tenable point of view seems to me at the moment to be that the question which lies at the heart of your complaint is a question about the way in which the Full Court re-exercised the sentencing discretion and, in particular, whether it gave due weight – I think you may go so far as to say whether it gave any weight – to the course of events below, thereby revealing error on its part in the exercise of that sentencing discretion.  Now, do I capture, sufficiently at least, part of your contention?

MR DANN:   Yes, you do, your Honour, but I do not ‑ ‑ ‑

HIS HONOUR:   But is there more to it?

MR DANN:   ‑ ‑ ‑ I do not abandon the proposition that even at the stage of the decision to allow the appeal, even at that stage ‑ ‑ ‑

HIS HONOUR:   Leave aside allow or disallow the appeal; at the question of conclusion of manifest inadequacy.

MR DANN:   Even at that conclusion a discretion, in my submission, still remains as to whether the court will allow the appeal because the appeal has to be allowed before the resentencing process is embarked upon, but what your Honour ‑ ‑ ‑

HIS HONOUR:   No.  What triggers the resentencing is the conclusion, the finding of manifest inadequacy.  Whether the appeal is to be allowed is dependent in part upon, one, the attribution of error; two, resentencing, and that involves whether on resentencing some other sentence ought to be passed or no.  Appeal allowed or dismissed is the order that is the result of the reasoning and at the moment I am concerned to focus upon the order of reasoning.

MR DANN:   What your Honour says about that stage, where the court exercises its discretion in terms of resentencing, yes, you have captured what I am trying to put to the Court.

HIS HONOUR:   Yes.  What do you say is the relevant hurdle, what is the height of the hurdle you have to pass over in my deciding that bail should be granted?  What degree of prospect of success on your leave application should I be persuaded of?

MR DANN:   In my submission, your Honour, in the words of Justice Dawson, I think it is in Peters’ Case, that there is an arguable point or an arguable case for special leave.

HIS HONOUR:   I think other dicta - other members of the Court, notably Justice Gaudron in Frugtniet’s Case (1996) 71 ALJR 311, her Honour said, Bail pending, a grant of special leave will only be granted in most exceptional circumstances and, of course, only if it is necessary to preserve the subject matter of the application and, in addition, if it appears that a grant of special leave is likely”. I think there are different formulations of the height of the hurdle. The truth may well be that there is no single view, but you say it is enough if I were persuaded that it is unarguable?

MR DANN:   Yes, your Honour.  I mean, combined with the other factors that we seek to put to you.  I mean, the circumstances of each application would have to be considered separately, and what we ask the Court to consider is that the combination of circumstances, the arguable case for special leave being one factor in the combination.

HIS HONOUR:   Yes.

MR DANN:   Now, if your Honour would be assisted by me taking you to those matters which we say in combination establish exceptional circumstances, I will do that now.

HIS HONOUR:   As I would understand it, the exceptional circumstances are essentially that the custodial portion of the sentence will largely, though not entirely, have expired by the time the leave application can be brought on.  Is that the nub of it?

MR DANN:   Yes, and, your Honour, there is a very real distinction to be drawn between a sentence involving a non‑parole period or a head sentence and minimum period.  I mean, there are number of cases where that

submission has been put in respect of such a sentence and the Court has held that that circumstance in itself would not amount to an exceptional circumstance, but the position is different, in my submission, very different, in respect to a person in Mr Sullivan’s position subject to a partly suspended sentence and the Court has recognised that in Victoria and, indeed, it is referred to in the respondent’s outline of submission, Pennant’s Case.

HIS HONOUR:   Well, it may perhaps be more convenient, I think, Mr Dann, if I hear you on any question about futility and exceptional circumstances after I have heard from Mr McArdle and it may refine the way in which the argument proceeds if you are heard in reply on those matters if they emerge as important considerations.

MR DANN:   If your Honour please.

HIS HONOUR:   Are there other matters you would wish to add though?

MR DANN:   No, your Honour.  It was the four matters to be taken in combination.

HIS HONOUR:   Yes.  Yes, thank you, Mr Dann.  Yes, Mr McArdle.

MR McARDLE:   Your Honour, there are two essential issues.  One is the prospects of success.  The second one, which would be less arguable, is the significance of the custodial aspect of the sentence being almost exhausted by the time the appeal comes on.  For those purposes we assume the accuracy of the estimate of the matter coming on in February rather than the next special leave sittings, which I think is in December, and, secondly, the arithmetical assumption that the nine months concludes at the end of February of this coming year.

HIS HONOUR:   I think there was only eight days taken, was there not, pre‑sentence potentially?

MR McARDLE:   Was there?  I missed that, but I think we have said towards the end of February.

HIS HONOUR:   Yes.

MR McARDLE:   Now, so far as the prospects of success are concerned, the test in Peters was expressed by his Honour Justice Dawson as being “a reasonable prospect of success” and your Honour has noted at least another expression of the test.  Whatever it might be said, we contend that that does not exist in this case, and it does not exist for a number of reasons.  In the first place, it is submitted that there is, on inspection of the reasons in the Court of Appeal, nothing obviously wrong.  It was a reserved decision.  It was argued, I think, on the 29th and the decision was given on the 30th.  The inference you might draw is that it was reserved overnight or, at the very least, the judges had the opportunity of discussing the matter before judgments were delivered.

Secondly – and this is a point reflected really in Kostikidis, which is one of the cases that I have left with your Honour – it is this, that his Honour Justice Dawson again in that case – which has about it a lot of similarities to this, it being a Crown appeal – made these observations, that he thought that the likelihood of success would, of course, have to be taken into account; that it was a sentencing case.  While it is not a rule of universal application, of course, but this Court, it is submitted, does not often give special leave in sentencing cases.  Secondly, there was nothing obviously wrong in relation to the judgment of the Court of Appeal.

Now, aside from what is said in Kostikidis and Mpehelevanas, there is another consideration and it is submitted a very important one considering the position of this Court, and it is this, that there is no discussion of the issue in the judgment of the Court of Appeal.

HIS HONOUR:   Well, that is said to be the core of the complaint.

MR McARDLE:   Well, if there was a complaint – that, it is submitted, does not happen.  It might leave my learned friend with a grievance at best, but if there is a complaint, it should have been taken up there and then with the court.  At the time of delivering judgment the point should have been made in whatever terms to the effect, “Your Honours have overlooked a very significant matter that I sought to raise in the course of this hearing.”

It is not my wish, nor is it appropriate, to engage in debate with my learned friend as to what I understand the significance of this issue to be in the Court of Appeal.  I was not there; he was.  Proceedings are not transcribed.  I have inspected the outlines of argument.  It was there.  I say nothing more than that.
           But in any event, if it was a significant issue – and it is really the thing that is the essence of the special leave application, the point is said to be of universal importance, et cetera ‑ if it was there, it should have been raised with the court immediately they delivered their judgment, because if this Court was to consider a further discussion of the prosecutor’s obligations, in light of the fact that Everett, for example, is such a discussion, notwithstanding that, if it was it would not have the benefit of the views of the intermediate appellate court and that in itself ‑ ‑ ‑

HIS HONOUR:   Well, again for the purposes of argument only, assume that that were a matter to take to account in deciding generality of application, what would you say about the complaint that there is a miscarriage of justice, that the point for leave becomes not so much the point of general application as a point of particular injustice to this accused?

MR McARDLE:   In this particular case?

HIS HONOUR:   In this case.

MR McARDLE:   Yes, of course.  Well, your Honour, I would say that that is by no means immediately apparent or apparent at all.  Now, where has the injustice occurred?  At the Court of Appeal?  Well it has to be the source of it if it comes here.  There is no complaint about what happened in the County Court.  It did better than his counsel suggested or submitted.  If there is an injustice it is, in the first place, not immediately apparent and if it was such a misjustice it would be sufficiently striking for his counsel, or whoever represented his interest at the delivery of judgment, to raise the matter there and then.

HIS HONOUR:   The other thing that occurs to me is that the miscarriage of justice may well invite attention to the overall outcome, in particular whether imposition of a custodial term in the form that this took, on a person who, at least as I understand the papers, by all accounts was a retail drug dealer.

MR McARDLE:   Yes.

HIS HONOUR:   Whether that is a sentence that is not properly imposed.

MR McARDLE:   Well, your Honour, these things do not admit to much argument.  We contend that there is nothing obviously wrong with it.  It is to be remembered in relation to this that while he is a retail drug dealer, one of the things he admitted to – or two things – one was a knuckle-duster, well there is a certain level of mystery about that; the other thing was a stun gun.

HIS HONOUR:   Yes, we are dealing with him on the drugs are we not, Mr McArdle?

MR McARDLE:   Yes.

HIS HONOUR:   Old habits, I know, die very hard, but we are confined at the moment to the drugs, are we not?

MR McARDLE:   It is a surrounding circumstance nevertheless, your Honour.

HIS HONOUR:   Yes, surrounding and should be put into the background for the moment.

MR McARDLE:   Well, if it has reached the background I will leave it there.  Your Honour raised some issues, I am not sure if they are pertinent, the way the argument has gone, concerning supposing whatever it is that the Crown Prosecutor did or did not do is somehow erroneous, the Court of Appeal in Director’s appeals has, of course, an overriding discretion, even in the event that mistake is there, not to allow the appeal.  I think that follows from authorities such as Clarke and such, which set out that.  It may be that - it might even be, for example, if the prosecutor got it completely wrong, misjudged the situation – that is not impossible at all – then if that is the situation, they may take the view, of course, that it is manifestly inadequate, that notwithstanding that, that a favourable exercise of that discretion to the accused, to decline to allow the appeal; that may or may not occur.  I cannot produce authority on an occasion where that has occurred, nor does my memory allow me to offer your Honour an example, but it may well be a possibility. 

You might think, your Honour, that the court would have no difficulty in concluding that this was manifestly inadequate – the good behaviour bond.  Your Honour, that being the situation, leaves us with the issue of the custodial part of the sentence almost expiring.  The authorities suggest that that by itself might not be an overwhelming consideration or it might not by itself establish the exceptional circumstances that are required for a favourable decision in relation to these applications.  The Court of Appeal, as your Honour would know, tends to treat suspended sentences a little differently from sentences involving a minimum period, with the exception of possibly Peters, which is a case which might be considered, although it is a Commonwealth case, as being a partially suspended-type sentence.  There is very little discussion of other cases that I have been able to come across in relation to that.

HIS HONOUR:   Peters was admitted to bail, was he not?

MR McARDLE:   Yes, he was.

HIS HONOUR:   And his appeal ultimately succeeded, did it not?

MR McARDLE:   It did.

HIS HONOUR:   Yes.

MR McARDLE:   And he had some pretty good points there.  Certainly they appealed to Justice Dawson, and he had quite a substantial complicated argument there as to ‑ ‑ ‑

HIS HONOUR:   That was the dishonesty case, was it not?

MR McARDLE:   Yes.  It involved the Victorian cases, as I understood it, together with the English case, overlayed with the Commonwealth conspiracy offences and the argument was awarded by extensive judgments and, as I recollect, a level of disagreement.

HIS HONOUR:   I am surprised you find that a matter for remark, Mr McArdle.

MR McARDLE:   A passing observation, your Honour.  Your Honour, I think that probably concludes what I desire to say in relation to the matter, if the Court pleases.

HIS HONOUR:   Yes, thank you, Mr McArdle.  Yes, Mr Dann.

MR DANN:   Your Honour, the point that is made in respect to the matter not being raised at the time which the judgment was delivered, in my submission, your Honour, that that occurred is not fatal to this appeal, leaving aside the question of bail for the moment and just dealing with the prospects of success of the special leave application.  It is by no means fatal to the application for special leave, because any such point, if it is made, has to be made in the context that there was considerable submission put to the Court of Appeal on this very point and, in one sense, the applicant’s counsel cannot do much more than make the point, hand up as many authorities that can be mustered in the area, and make the submissions.

Now, in that context, if it is suggested that then, at the time the judgment is delivered, a failure to get up and say something then is fatal to a special leave application and hence fatal to this bail application, in my respectful submission, your Honour, that is not the state of the law and general concepts of fairness to the applicant, or to any person in the applicant’s position, would indicate that that cannot be the position.

HIS HONOUR:   Yes.

MR DANN:   Your Honour invited me to deal with the situation of futility and that is exactly the position that we say that this special leave application will be left in if the applicant is not granted bail, because ‑ ‑ ‑

HIS HONOUR:   I think I would be prepared to assume in your favour, Mr Dann, that futility was established.  The more immediate focus of my attention remains upon the question of prospects.

MR DANN:   Well, the point that is really put to you in regard to prospects is that nothing was said at the time of the judgment and I have said - I have made the submission in respect to that, and I do not understand the law to be, particularly when the submission is made during the course of the appeal, that because there nothing is said at the time of the judgment that that then leaves the special application doomed or the appeal doomed.

MR DANN:   Now, your Honour, they are the matters that I wish to put in respect to the – I mean, you understand the futility point. 

Your Honour, the remaining points I will not elaborate on.  They are covered in the outline of submissions.  They are to be taken in combination, not on their own, but I would maintain, your Honour, in respect to the question which we seem to have concentrated on, prospects of success, what I started out saying is that this case really is not much different from the circumstances of Everett’s Case.  What these cases deal with and what they are concerned with are concepts of fairness, because what happens when a sentencing hearing is conducted and a person is given or placed on a community-based order for a period of time, what happens is that person, having faced the prospect of deprivation of liberty, having heard no argument for the Crown that that should occur, is placed on a community‑based order, undergoes one form of sentence, then eight months later, for the first time, it is put to the Court of Appeal that this man must go to gaol.  He faces the deprivation of liberty again.

All the authorities indicate that a court has to be – well, it has been put as highly as exceptional circumstances would need to be shown before a court would allow the Crown to take a different stance on appeal that was taken in the court below.  Here, although an attempt was made to draw the court to that type of authority, the court proceeded in a way which, on the basis of authority, on the basis of Everett’s Case; Economides and the other cases that are listed, involves an error of principle and involves great unfairness to the applicant.

Now, they are the matters that I wish to put on the applicant’s behalf, your Honour, unless there is anything specifically you want me to deal with.

HIS HONOUR:   One matter, Mr Dann:  was there, as I assume there was, a contention on the hearing of the appeal in the Court of Appeal that the sentence was not manifestly inadequate?  Did your side submit that the sentence was not manifestly inadequate?

MR DANN:   The way the appeal was conducted on behalf of the applicant was divided into three areas:  one, whether the sentence was inadequate and it was put that, yes, this is a merciful sentence but a merciful sentence does not necessarily equate to an inadequate sentence and what I said about the two years community-based order as opposed to the 12 months intensive corrections order was put.  And then it was put, well, if you reach the stage where you think it was inadequate, then there is still the exercise of discretion as to allow the appeal.  If you allow the appeal, then there is still the exercise of discretion in terms of re-sentencing and at each stage of the exercise of discretion this aspect has to be taken into account.  That is what the authorities indicate; it was not.  So, the prospects for special leave as indicted in Everett’s Case are good.  If your Honour pleases.

HIS HONOUR:   Yes, thank you, Mr Dann.

On 21 June 1999, the applicant pleaded guilty in the County Court of Victoria to two counts of an indictment alleging, first, that between 22 August 1997 and 22 October 1998 he had, without being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) or the Regulations thereunder to do so, trafficked in a drug of dependence, namely, cannabis L and, second, that on 22 October 1998, without being authorised by, or licensed under, that Act or the Regulations to do so, he had in his possession a drug of dependence, namely, methylamphetamine.

The facts surrounding the commission of the offences were largely, if not entirely, undisputed.  The applicant was found in possession of 767 grams of cannabis in packages of a kind consistent with their having been prepared for sale and was found in possession of 2.5 grams of amphetamines.

It seems that the view taken of his conduct is accurately reflected in the judgment of the Court of Appeal, in the appeal to which I will have to come, where it was said that he carried on a general retail business supplying cannabis to all comers.

On 23 September 1999, some months after his plea, the applicant was sentenced to a two year community-based order in respect of count 1 and was convicted on count 2 and ordered to enter a good behaviour bond in respect of that offence.  On 21 October 1999, the Director of Public Prosecutions, Victoria, appealed against the sentences thus imposed.  That appeal came on for hearing by the Court of Appeal of Victoria on 29 May 2000.  The court allowed the Director’s appeal, quashed the sentences that were imposed by the primary judge and in lieu, ordered that on count 1 the applicant be sentenced to 30 months imprisonment and on count 2 it directed that the order made by the primary judge adjourning that offence for two years should remain but without the special conditions which the judge had attached to that order.  The Court of Appeal further ordered that 21 months of the sentence of 30 months was to be suspended for a period of 30 months from the date of its imposition. 

The applicant has applied for special leave to appeal to this Court.  He now seeks bail pending the hearing and determination of that application for special leave.  The ground given in the application for special leave to appeal to this Court is that the Court of Appeal “erred in law in failing to take into account the fact that the Crown had made no suggestion before the learned sentencing judge that a community-based order as a non‑custodial sentence would be beyond the judge’s sentencing discretion in the circumstances of the case.”

It is clear that bail, pending the grant of special leave to appeal to this Court, will only be granted in exceptional circumstances.  It may be granted if it is necessary to preserve the subject matter of the application for leave, that is, if not to grant bail would render the application for special leave futile.  I will assume, without deciding, that the fact that most of the custodial portion of the applicant’s sentence will have been served before the application for special leave can be brought on for hearing is properly regarded as so diminishing the practical utility of his application for special leave as, in effect, to render it futile.

This conclusion, which I assume, is however not the only matter which must be taken into account in considering the application for bail.  The decision which the applicant seeks to challenge is a decision which itself has not been subject to appellate review.  In that respect it stands apart from some circumstances in which a convicted prisoner seeks bail pending hearing of an application for special leave.  In deciding whether bail should be granted, it is important to consider what prospects the applicant has of obtaining the special leave which he seeks.  It is clear that bail should not be granted unless there is a sufficient prospect that leave will be granted.  In that regard it is important to note that the applicant and the respondent have each filed their arguments respectively in support of and opposing a grant of special leave.  The area for debate between the parties has therefore been defined.

What emerges is that the central complaint which the applicant seeks to make is one which focuses upon the process that has been followed in arriving at the sentence he now is serving and upon the way in which discretions reposed in the Court of Appeal in considering the Director’s appeal have been exercised.  The complaint which the applicant makes does not focus, at least primarily, upon the conclusion of the Court of Appeal that the sentence imposed upon the applicant by the primary judge was manifestly inadequate.

The essence of the applicant’s complaint is that in the proceedings before the primary judge counsel then appearing for the prosecution did not, or did not with sufficient clarity, submit to the primary judge that this was a case which merited imposition of a sentence of immediate imprisonment.  The parties are at odds about the significance that should be attached to comments made by counsel then appearing for the prosecution on the hearing of the plea in mitigation, although there appears to be no dispute that the judge was informed by counsel for the prosecution that while he had no specific instructions about the form of sentence that should be imposed, the matter was “the sort of matter that, your Honour” [the primary judge] “must have a high regard to general deterrence.”

In Everett v The Queen (1994) 181 CLR 295, the Court emphasised the importance of the course taken by the prosecution at the original sentencing of an offender in considering a later prosecution appeal against that sentence: Everett v The Queen (1994) 181 CLR 295 at 301 to 303 per Justices Brennan, Deane, Dawson and Gaudron, at 307 to 308 per Justice McHugh.

I leave aside for the moment whether what was said in Everett can automatically be transferred from cases, of which Everett was one, in which the prosecution needed leave to appeal against sentence to cases like the present where the prosecution appeals as of right.  For the moment I assume, without deciding, that that transfer can be made.

The decision against which special leave to appeal is sought was a unanimous decision of the Court of Appeal given after consideration overnight.  The decision makes no reference at all to arguments of the kind which it is sought to deploy in this Court.  The applicant points to the absence of such reference as demonstration of the validity of his contention that the court failed to take account of a relevant consideration in exercising its discretion to allow the appeal and to take it to account in re-sentencing the applicant.  By contrast, counsel for the respondent point to the absence of reference to these matters as indicating that they were matters that did not loom large in the course of debate before the Court of Appeal.

Essentially, the application for special leave is one which the applicant contends requires the Court to apply well-established principles clearly identified in Everett’s Case.  It is apparent then that the application is one which would turn largely, if not exclusively, upon an understanding of the particular course of events, both at the original sentencing of the applicant and on the hearing of the prosecution appeal to the Court of Appeal.

In these circumstances, I am not persuaded that the application for special leave enjoys sufficient prospects of success to warrant admitting the applicant to bail.  The application is refused.  I will certify for the attendance of counsel at chambers. 

Unless counsel has anything else they desire to raise, I will adjourn.

AT 3.24 PM THE MATTER WAS CONCLUDED