Taleb v The Queen

[2014] HCATrans 292

[2014] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M53 of 2014

B e t w e e n -

SAMMY TALEB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 11.55 AM

Copyright in the High Court of Australia

MR A.C. IMRIE:   May it please the Court, I appear on behalf of the applicant.  (instructed by Melasecca, Kelly & Zayler)

MR G.J.C. SILBERT, QC:   May it please your Honours, I appear with my learned friend, MS S.A. FLYNN, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

CRENNAN J:   Yes, Mr Imrie.

MR IMRIE:   Your Honours, there is an ongoing and unresolved difference, of opinion, both within Victoria and around the country, as to the correct application of the principle of parity in sentencing, specifically, the question of whether it is required to reduce a sentence to one that is manifestly inadequate ‑ ‑ ‑

CRENNAN J:   To satisfy parity.

MR IMRIE:   ‑ ‑ ‑ in order to satisfy parity.  The Court of Appeal in this case acknowledges that dispute at paragraph 39 of its judgment which is in the application book at 225 and purports to resolve that question of opinion by answering the question in the negative.  That resolution can be found at paragraph 48 of the decision below and also applied at paragraph 52 of the decision below.  The applicant’s position is that that conclusion was in error.

CRENNAN J:   What about the first sentence of paragraph 53, just over the page from where you were, at 232.

BELL J:   It is the court’s conclusion that as a matter of fact there was not “unjustifiable disparity between the sentences imposed”.  That, it would seem, rather takes the ground from under you in terms of what is left of the point that you seek to agitate.

MR IMRIE:   Well, yes, your Honours, and that is ground 2 of the application.  Before dealing with the substance of ground 2, there are two fundamental critical propositions.  The first is that the single paragraph of the Court of Appeal’s judgment that deals with the issue of whether or not there is a justifiable sense of grievance has to be seen in the context of the judgment as a whole.  The court has spent considerable time endeavouring to resolve the difference of opinion about the correct application of the principle of parity.

BELL J:   No doubt the court was responding to the arguments that were put, but at the end of the day, Mr Imrie, your client and the man, Ahmad, were both charged with a count involving commercial trafficking ‑ ‑ ‑

MR IMRIE:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ in a prohibited drug, a count carrying a maximum sentence of 25 years.  The sentence imposed on the more senior of the two was twice the sentence imposed on your client and your client’s involvement was seen as significant.  Now, minds might differ about the degree to which one differentiates the one from the other, but to contend that there exists a justifiable sense of grievance when a differentiation of that order, having regard to the sentence imposed on the more senior of the two, by which I mean a relatively short sentence, seems to me to be a very difficult argument for you to make good.

MR IMRIE:   Well, your Honour, this, in my submission, was an exceptional case and the mere fact that the applicant received a sentence that was half that of his older brother does not end the question of whether appellate intervention is required to remedy a justifiable disparity.  That is, the sentencing judge described the applicant as a singularly impressive man.  Your Honours, he could not have been any more different from his older brother, the co‑offender, in terms of the circumstances of his involvement in this offending and also in terms of his personal circumstances. 

They were, with respect, your Honours, polar opposites and the differing levels of criminality is a matter that was canvassed by the Court of Appeal at some length.  The older brother was the sole principal of a drug trafficking enterprise encompassing some 46 times the commercial quantity.  The applicant was a subordinate associate.  The analogy has been of a wheel, the co‑offender is the hub, with the applicant as one of the spokes of the wheel.

BELL J:   I am familiar with the analogy.

MR IMRIE:   As your Honour pleases.  The applicant made a concession to commercial quantity to the bare minimum at the very bottom of that quantity.  Then there are strikingly different extenuating circumstances through which these two men can to this offending.

BELL J:   Into the mix one has to throw the findings respecting the mental health difficulties, albeit not of a major order, as I understand it, relating to the older brother.  One comes back to this, Mr Imrie.  Your client was sentenced to a term of imprisonment that might be characterised as relatively lenient, having regard to the offence of which he was convicted, notwithstanding the amount involved, and it was half the order of the sentence imposed on his older brother who had significantly different circumstances in relation to his role in the enterprise and so forth, but matters that affected his sentence in a mitigatory way as well.

MR IMRIE:   Well, your Honours, the submission is that the differentiation is demanded – not justified, but demanded – the current differentiation is demanded by the differences in the circumstances of the offending and the further differentiation based on the circumstances of each offender mandated further differentiation due to the exceptional nature of those circumstances.  Further to that, I can draw out some of those points, your Honours.  My client, the applicant, had left no stone unturned in his determination to rehabilitate himself.  That was the observation of the sentencing judge.

BELL J:   Mr Imrie, it is the function of the Court of Appeal of Victoria to review sentences and it is not the function of this Court to take up a matter by a fine analysis of the facts subjectively favouring a lenient disposition or the like.  The point of principle you seek to agitate is an issue which, if not laid to rest in the majority reasons in Green where it is noted that one cannot reduce a sentence below that which is proportionate if the statute does not admit of that consequence - you seek to agitate what is left of the debate about the extent to which, on a parity issue, one can reduce the sentence of a co‑accused to a sentence that would otherwise be seen as disproportionate, but against a finding by the Court of Appeal that there was no unjustifiable disparity in giving your client a sentence of only half that which his older brother received.  Now, the point of principle having gone, you are inviting this Court to analyse the appropriate sentence.  This Court is not as well placed as the Court of Appeal to do that.

MR IMRIE:   Well, your Honour, the submission is that this is an appropriate vehicle for dealing with the special leave question that your Honour has just described, and it is an appropriate vehicle because the application of principle as to whether or not there was a manifest disparity, a justifiable sense of grievance, was misapplied in this case and there has been a tangible injustice in terms of the extent of the disparity between the two offenders. 

The submission is that that is a point of principle and it goes to the administration of justice in this particular case and, seen in the context of the special leave question which goes to very important issues as to the administration of criminal justice around the country, the submission is that this is an appropriate vehicle with which to resolve that question, your Honours.  If your Honours please.

CRENNAN J:   Thank you, Mr Imrie.  We will not trouble you, Mr Silbert.

The decision of the Court of Appeal of Victoria is not attended by sufficient doubt to warrant a grant of special leave to appeal.  We are also not persuaded that the interests of justice would require a grant of special leave.  Special leave to appeal is refused.

AT 12.05 PM THE MATTER WAS CONCLUDED