The Queen v Olbrich

[1998] HCATrans 426

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 1998

B e t w e e n -

THE QUEEN

Applicant

and

REINHOLD ERHARD OLBRICH

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 10.50 AM

Copyright in the High Court of Australia

MR B.R. MARTIN, QC:   May it please the Court, I appear for my learned friend, MS M.M. CINQUE, for the applicant.  (instructed by the Commonwealth Director of Public Prosecutions)

MR T.L. BUDDIN, SC:   May it please the Court, I appear together with my learned friend, MS R.W. BURGESS, for the respondent.  (instructed by Mr T. Murphy, Legal Aid Commission)

GAUDRON J:   Mr Martin.

MR MARTIN:   Thank you, your Honour.  Your Honours, there are four bases upon which we say there is a special point, an important point, that deserves special leave.  The first is that the Court of Criminal Appeal has created, in our submission, a new and erroneous principle of sentencing to be superimposed upon the existing principles.

GAUDRON J:   What do you say the relevant existing principle is?

MR MARTIN:   The existing principles have been that when it comes to a circumstance of aggravation, the fact relied upon must be proved beyond reasonable doubt, inevitably, the burden resting upon the Crown.  When it comes to a circumstance of mitigation, that fact must be proved on the balance of probabilities, the practicalities being that it rests on the offender to prove those principles.  What has happened in this case is that with respect to importations, and only importations, but with a potential to apply it in a wider context, the Court of Criminal Appeal has imposed upon the Crown a general burden beyond reasonable doubt to prove the involvement of the importer in the course of events prior to, or subsequent to, the actual act of importation.

GAUDRON J:   It is really to prove the level of involvement, is it not?

MR MARTIN:   Well, the level or the degree of involvement, that is correct, your Honour.

HAYNE J:   What does that mean?

MR MARTIN:   It means this, sir:  that in the absence of proof the offender is entitled to be sentenced on the most favourable basis ‑ ‑ ‑

HAYNE J:   I understand that, but what does it mean to say that the Crown must prove the level of his involvement?

MR MARTIN:   Well, your Honour, I guess it means this:  that the plea simply establishes that the person imported, that is brought the drug into the country.

HAYNE J:   It is an admission of all of the elements?

MR MARTIN:   It is.

HAYNE J:   Yes?

MR MARTIN:   Beyond that the court knows nothing.  It is said, in this type of case, the Crown must lead evidence to prove that the person, perhaps, assisted with the obtaining of the drug, assisted with the travel arrangements, or, at the other end, was a financier, that this was this person’s own venture, who organised it all themselves, a whole range of circumstances.  And what, with respect, the court has done is made the mistake of saying it is so essential to determine the role – and that is the role in the ultimate supply to citizens in Australia – they have taken that concept and said because that is so important to sentencing, if the Crown cannot prove it, then the person is entitled to be sentenced on the most favourable basis possible.

And can I come back and take the Court through the judgment briefly on that.  And I just move to say there are three other matters of importance.  This decision is in clear conflict with the decision in Victoria in which your Honour Justice Hayne was a member of the Bench in The Queen v Storey, where it was clearly held that there is no general burden of proof with respect to the facts on the Crown.  Second, it leads to unfair and absurd results, unfair in the sense that it is the offender who knows the role truly, not the Crown, but yet if an offender stays silent, on this test, the offender is entitled to be sentenced on the most favourable basis possible.  And the absurd result comes about in this fashion:  that if the offender, as in this case, claims to be a courier, which is the least culpable in one’s general consideration of the range of culpability, but the ‑ ‑ ‑

GAUDRON J:   Is not the problem in this case that the role seems to have crept in as an indication of the level of culpability?  In one respect, the only relevant consideration may be the quantity.

HAYNE J:   The offence is importing.

MR MARTIN:   Yes, it is.

HAYNE J:   It is not conspiracy.  It is not knowingly concerned in.

MR MARTIN:   That is so.

HAYNE J:   The offence is importing, and that is what the court is sentencing the offender for.

MR MARTIN:   Precisely, but the difficulty we face here is that the Court of Appeal has not recognised that fact, and has said that because beyond the mere fact of importing, the role is so critical to the level of ‑ ‑ ‑

GAUDRON J:   Is that not the error?

HAYNE J:   I do not know what that means for the moment.  No doubt I will be told, but I do not know what that means.

MR MARTIN:   It is an error.  In effect, it is letting the tail wag the dog, with respect, and it is an error, and it can lead to absurd results because as was pointed out in Storey, if an offender attempts to mitigate, gives evidence and is rejected by the judge, but the Crown is not able to prove a role beyond reasonable doubt, the judge may be left with having to sentence on the basis that he has rejected.  That is the ultimate effect of this principle.  And finally, the sentencing judge, in our submission, had it right.

GAUDRON J:   What if one comes to the view that the sentencing judge did not have it right, but the Court of Criminal Appeal did not have it right either?

MR MARTIN:   Your Honour, the matter should be resolved by this Court.  This is an ideal vehicle.  It is the first time this principle has been enunciated in ‑ ‑ ‑

GAUDRON J:   But it is Crown appeal, or an application for a Crown appeal.

MR MARTIN:   Yes, it is, your Honour.  Yes, we acknowledge that, and it is a rarity in connection with sentence.  What we have at the moment is conflicting decisions on a Commonwealth law between the States, which will create great difficulties in sentencing in the future.  This is a pure question of law that can be dealt with relatively simply on the sentencing remarks, the judgment of the Court of Criminal Appeal.  It does not involve an assessment of any of the evidence whatsoever, and it can be resolved by this Court.  If it is not, we have different approaches in different States.  Victoria and South Australia ‑ ‑ ‑

HAYNE J:   Just one question, Mr Director.  Are you able to point to any other case in which a Court of Criminal Appeal in this country has remitted

a question of sentence for determination by the sentencing judge rather than the Court of Criminal Appeal itself determining the sentence that ought to be imposed?

MR MARTIN:   No, your Honour, normally the Court of Criminal Appeal would have imposed sentence itself.

HAYNE J:   That struck me as an oddity.  Nothing, perhaps, turns on it in this case, but ‑ ‑ ‑

MR MARTIN:   We agree that is most unusual.  I will stand corrected if my learned friend’s memory is better than mine.

HAYNE J:   All I will say is in the Court of Criminal Appeal in Victoria there were times when I wished one could have done it.  It is a separate question.

MR MARTIN:   Yes, quite.

GAUDRON J:   I do not think we need to trouble you further at this stage, Mr Director.  Yes, Mr Buddin.

MR BUDDIN:   If the Court pleases.  In one sense this was something of an unusual case in that the respondent endeavoured to persuade the court that he was “a mere courier”.  Issue was then joined, and the Crown apparently had assumed the burden – and I do not mean that in a technical sense – of establishing that not only was he not a mere courier, but that he was a principal, and the judge so found.

GAUDRON J:   But what does that mean?  We are assuming a ring, a conspiracy in which other people are guilty, are we?  And although they have not been convicted, we are to presume them guilty and give them a hypothetical range of sentences against which we measure this one, when the offence is simply importation.

HAYNE J:   And we are to sentence this man for conspiracy when he is charged with importing, are we?

MR BUDDIN:   Well, absolutely not.

HAYNE J:   Just so.

MR BUDDIN:   Absolutely not, and there ‑ ‑ ‑

HAYNE J:   Yes, and is that not the result of what the Court of Appeal has said?

MR BUDDIN:   Well, with respect, the Court of Appeal has simply intervened to correct the error that his Honour made at first instance in moving from a rejection of his being a mere courier, without more, to finding positively that he was a principal with all the attendant ‑ ‑ ‑

GAUDRON J:   Well, he did not find that, that was the problem was it not?  He said he will assume he was a principal.  If he rejects the courier notion, he must proceed on the basis that he is a principal, without making a finding.

MR BUDDIN:   Well, with respect, his Honour said that, having rejected the suggestion that he was a mere courier, there was no alternative open to him, and, therefore, he was a principal, but in any event, when one goes through the process, it is quite clear that the sentence imposed reflected the view that one can divine that his Honour was sentencing him, in truth, as a principal.

GAUDRON J:   But he was a principal.

MR BUDDIN:   I beg your pardon?

GAUDRON J:   He was a principal in terms of the offence.  His liability was not accessorial.  He was an offender.

MR BUDDIN:   Well, perhaps there is a sense in which it is less than useful to use tags such as “courier” and “principal”.

HAYNE J:   And “role”.

MR BUDDIN:   And “role”.  I accepted this ‑ ‑ ‑

GAUDRON J:   And perhaps irrelevant.

MR BUDDIN:   Perhaps even irrelevant.  As I understand his Honour’s process of reasoning and the remarks that he made that underscore them, what he was really saying was that this man’s participation was something in the nature of being entrepreneurial.  In other words, it was as far removed as one could get from the addict who comes in clearly importing on his or her own account, but, nonetheless, able to indicate and bring him or herself within section 235(3) of having a non-commercial purpose.  The ‑ ‑ ‑

HAYNE J:   But, Mr Buddin, if the Court of Criminal Appeal judgment stands as it is, does this not invite the conducting of wide-ranging inquiries pre-sentence, and are we coming then to the point of, in effect, a second trial or a trial if there is a plea of guilty.

MR BUDDIN:   Well, with respect, not.  Most matters, in fact, are resolved without contest.  It is unusual, in our respectful submission, to find a case such as this in which the accused seeks to persuade the court that he is a mere courier, and the Crown goes beyond simply joining issue and seeks to assign a more significant role, that is the first thing.  And secondly, I think it was in the Queensland case of Morrison that is referred to by my learned friend, where the joint judgment of Justices Pincus and Fryberg – do your Honours have that material, it was referred to in my learned friend’s list of authorities.

GAUDRON J:   Yes we have that.

MR BUDDIN:   Their Honours, in fact, dealt with this issue.  You might simply say that ultimately – perhaps I had better refine the context.  The question was whether or not Queensland should come into line with the rest of Australian authority.

GAUDRON J:   That is a radical step, is it not?

MR BURTON:   Well, your Honours, my learned friend and I were simply having a debate this morning about whether the cricket was going to start at 11.00 o’clock Sydney time or Brisbane time, and this a matter of great moment to us.  I understand what your Honour is saying, and I assume that your Honour makes the remark in the context of it simply being a question of chronology, rather than anything broader than that.

Nonetheless, in the last two years four Australian courts have constituted a Bench of five to deal with issues similar to this:  Storey in Victoria. Langridge in Western Australia – and might I indicate whilst I am referring to Langridge, to answer your Honour Justice Hayne’s question of my learned friend, Langridge was a case in which exactly the same thing happened, that there was a remitter by the Court of Criminal Appeal to the first instance judge because Anderson had not been properly applied.  The ‑ ‑ ‑

HAYNE J:   At some point there might have to be consideration of by what power there is such a remitter.

MR BUDDIN:   There is power under the Criminal Appeal Act of New South Wales.  There are supplemental powers, I think it is section ‑ ‑ ‑

HAYNE J:   Let me not distract you with that issue, it is simply something that interested me.

MR BUDDIN:   The other jurisdictions which have grappled with similar matters are Victoria in Storey’s Case, and then finally, Queensland in Morrison.  And the effect of the decision of Morrison was to apply the Storey principle, and ultimately the court, or particularly the joint judgment that I was referring to, decided to embrace the Storey principle, notwithstanding a concern about the potential for blowing out sentence proceedings, because the issue was thought to be so important where a determination adverse to the interests of the offender was concerned.

It appear that, certainly in this State, it is not unusual for there to be triable issues on sentence where there is a contested issue of fact, but that may well be the inevitable consequence of the sort of maximum penalty to which an offender is exposed by way of the plea of guilty.

My learned friend suggests that an impossible burden is now cast upon the accused.  It would appear that he is inviting the Court to embrace the suggestion made by the primary judge.

GAUDRON J:   Why does not one just say, “This man or woman has imported a quantity of heroin, the quantity is this much, it is a large quantity or it is an insignificant quantity, or it is an enormous quantity, that is the end of the matter”.

MR BUDDIN:   Because there are other indicators that go to the question of criminality beyond the question of quantity.  I am not suggesting for a moment, your Honour, that it is not one of the significant indicators.  But there is more, and the question of the degree of professionalism, for example ‑ ‑ ‑

HAYNE J:   And if the Crown essays to prove such matters, fine, let them be decided.  If the Crown does not seek to prove them, why should the judge concern him or herself with them?  If the accused tries to mitigate, the judge must decide them.  If the accused chooses not to mitigate, why should the judge be concerned to inquire?  Is not the Court of Appeal saying that the Crown must put on evidence directed to what is described to what is described as “the role”.

MR BUDDIN:   No, with respect.  That is reading what the court said rather too narrowly.

GAUDRON J:   But it has been sent back, it would seem, for the judge to make findings as to the role of this man.

MR BUDDIN:   Well, with respect ‑ ‑ ‑

GAUDRON J:   That seems to have been the basis of the remitter.

MR BUDDIN:   The basis of the remitter was simply, with respect, that the principle in Anderson had not been applied, namely that if it was asserted that this man’s role was going to be aggravated, that is beyond being a mere courier, then it was ‑ ‑ ‑

GAUDRON J:   You keep saying that, but as I understand the use of aggravation, it is some additional element specified in the statute which attracts a higher penalty, is it not, usually?

MR BUDDIN:   That is not as I understand it.  As I understand it, it is about using the Storey principle whether or not it is a matter that is going to be adverse to the interests of the offender in the sense that he or she is exposed to a greater penalty.  Now, clearly, if a person is a mere addict bringing it in for their own use, they stand in a very different position ‑ ‑ ‑

GAUDRON J:   Why?  Still committing the offence.

MR BUDDIN:   Well, because such a person can avail themselves of section 235(3).

GAUDRON J:   All right, we there have a statutory matter that bears on it.

MR BUDDIN:   Which indicates that the statutory maximum is 2 years, significantly different from 25 years, so I seek to invoke that analogy.

GAUDRON J:   Very well, but we are operating within a statute.  That is not relevant to this.  This it is said he brought it in for money, because he needed money and somebody asked him to.  There are bigger fish out there.

HAYNE J:   And the point that troubles me is application book page 31, lines 21 to 26:

The identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process.

MR BUDDIN:   I am sorry ‑ ‑ ‑

HAYNE J:   On page 31 of the application book, lines 21 and following, that sentence there, at least on its face, appears to be directing sentencers that they must find the precise nature of involvement.  It seems to me, at least on its face, to introduce a principle not hitherto accepted.

MR BUDDIN:   With respect, it is in the context of what the primary judge had done, and I return to the point at which I started.

GAUDRON J:   He may well have wrong too.

MR BUDDIN:   With respect, his Honour was wrong.  His Honour has, with respect, now got the chance to simply, in accordance with what the Court of Criminal Appeal said, as I read it, with respect, there are a number of indicators out there that would have entitled his Honour to have come to a conclusion that he played a more important role.

GAUDRON J:   Yes, but I still say the fundamental question is why has “role” got anything to do with it?

MR BUDDIN:   Because the ultimate vice is those that involve themselves in the drug trade for profit ‑ ‑ ‑

GAUDRON J:   This man clearly did that.

MR BUDDIN:   Yes, but it is a question of whether or not he is at the top of tree, the bottom of the tree.

GAUDRON J:   Why?  Why is it?  This all assumes ‑ ‑ ‑

HAYNE J:   I do not know what it means either.

GAUDRON J:   This assumes things that are foreign to the offence.

MR BUDDIN:   I accept that.

HAYNE J:   He is not charged with conspiring, and we are not concerned to rank conspirators.  This man is charged with importing, he took it over the line.

MR BUDDIN:   I agree, and he should be sentenced on no basis other than that.  But the effect of the primary judge’s approach, both in what he said and in the result, was to markedly increase the penalty that he was imposing upon him in a sense such as in Storey in a way that was adverse to the interests of the offender.  And because the primary judge has made error and the matter is going to be remitted to him, it may well be, at the end of the day, that absolutely no different sentence is imposed upon this offender.  And for no other reason, this is not an appropriate vehicle for the testing of the matter that my learned friend raises.  And unusual as it may be, it has been remitted to him.

GAUDRON J:   In many respects that seems to be because of the Court of Criminal Appeal’s view that there needed to be precise findings.

MR BUDDIN:   If I can just take the Court to that part, to page 25 ‑ ‑ ‑

GAUDRON J:   And, indeed, one of the consequences of this approach might be that that is, in fact, what happens if an appeal is subsequently allowed ‑ ‑ ‑

MR BUDDIN:   I am sorry?

GAUDRON J:   Yes, one of the problems might be if findings are made that are not open, it will go to the Court of Criminal Appeal, for example, back it goes to make more findings, and so forth and so on.

MR BUDDIN:   In the light of the what the court said at page 25, his Honour the Chief Justice said, at line 15:

There were a number of matters which could have justified a finding by his Honour that the applicant was involved in the importation to a much higher level than being a mere courier.  These included –

and then listed a whole series of matters.  And then at page 32, line 41:

There was a body of relevant evidence available in this case, but it was not dealt with appropriately.  His Honour failed to apply the correct principles because he did not accept that the Crown bore the onus of proof, to the criminal standard, on the issue of the applicant’s degree of involvement.

But they have foreshadowed what it is that his Honour had open to him, and that was a fairly broad hint, one would have thought, to the primary judge as to those findings of fact that he could make.  It is simply that he should apply “beyond reasonable doubt” as the standard to those matters.  It is really no more difficult than that, in our submission, and, therefore, it is well and truly open, without making a prospective concession, that his Honour will come to exactly the same result, and, therefore, this is not an appropriate vehicle for the grant of special leave.

Could your Honours just pardon me for a moment.  Yes, they are the submissions, your Honour.

GAUDRON J:   Yes, thank you, Mr Buddin.  We need not trouble you further, Mr Martin.  There will be a grant of special leave in this matter.

AT 11.15 AM THE MATTER WAS CONCLUDED