Trice v The Queen

[1992] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S156 of 1991

B e t w e e n -

KENNETH JAMES TRICE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

Trice 1 4/8/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 9.30 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, OC:  May it please the Court, in that matter

I appear with my learned friend, MR R. KELEMAN, for

the applicant. (instructed by Leigh Johnson)

MR M.S. WEINBERG, QC:  If it please the Court, in this

matter I appear together with my learned friend,

MR T.L. BUDDIN, on behalf of the respondent.

(instructed by the Commonwealth Director of Public

Prosecutions)

MASON CJ: Yes, Mr Hidden?

MR HIDDEN:  Your Honours, this application concerns Part lB

of the Commonwealth Crimes Act which substantially adjusted the sentencing procedure for Commonwealth offences and was introduced into the Act in July of

1990. In particular, Your Honours, it concerns the

effect of section 16G of the Act dealing with the

adjustment required to be made by a court

sentencing a Commonwealth offender in a State where

there is no remission system.

Your Honours, shortly the applicant, in

respect of some matters of fraud, had been

sentenced prior to the corning into effect of

Part lB effectively to a head sentence of four

years with a non-parole period of three years.	By
the time the appeal came on for hearing, Part lB
was in effect. The court determined that the sentence was in error and was vitiated by an

unjustifiable finding of fact and determined that

it should intervene and resentence. In effect, the

court resentenced to a head sentence of three years

with a non-parole period of two years. The primary

question raised by the application is whether in

doing so, the court has given any effect at all to

the requirement of section 16G of the Commonwealth

Crimes Act.

Your Honours, we have prepared photocopies of

some authorities and copies of parts of the

legislation to which we intend to refer. Would it

suit the Court if we hand those up, as it were, en

bloc, and refer to them as the argument proceeds.

Alternatively, Your Honours, I can simply hand up

the material as I - - -

MASON CJ:	No, you can hand them up en bloc.
MR HIDDEN:	Your Honours, prior to the enactment of Part lB,

basically Commonwealth sentences were passed in

accordance with the procedure obtaining in the

State where they were passed. As Your Honours would know, in September 1989 in New South Wales

the Sentencing Act came into force, which altered

sentencing procedure but, most significantly,

Trice 2 4/8/92

abolished the remission system in New South Wales

in its entirety. We understand, Your Honours, that

New South Wales is the only State or Territory in

the Commonwealth that has no remission system.

Of course, it was under that sentencing regime

that the sentencing judge passed the sentences
aggregating four years with a non-parole period of
three years. It was well-established law that
remissions were not taken into account in assessing
the length of a sentence and, in particular, a
sentence was not permitted to be lengthened because

of the existence of a remission system.

Your Honours, as part of the statutory scheme

introduced by Part lB, there was introduced

section 16G which Your Honours should find towards

the bottom of the bundle of documents where

the - - -

MASON CJ: It is set out in the application book, anyway.

MR HIDDEN: It is indeed, Your Honours. Your Honours may

also find with the bundle of documents in the lower
part of them, a copy of the second reading speech

of the Minister of Justice in the Senate, where the

minister said in relation to section 16G at page 5

of the speech:

Remissions that reduce the total (head)

sentence will continue to apply, if available

under State law. In those States where

remissions on the head sentence are not

available (only NSW at present), the Courts
are specifically required to take this into

account, so that federal offenders are not

serving longer sentences because of the

abolition of remission for State prisoners.

Perhaps before I turn to the decisions on 16G

in New South Wales, Your Honours, it is our

submission that against the background of the

sentencing regime which obtained at the time the

sentence was originally passed, and in the light of
the subsequent enactment of section 16G which was
in force when the Court of Criminal Appeal passed

its sentence, a sentence of three years as was

passed by the Court of Criminal Appeal would have

been in unremitted terms roughly a sentence of four

and a half years.

If one maintained parity between the

sentencing scheme which existed prior to Part lB

and that which obtained afterwards, then, as I have

said - I beg your pardon; the three years should

be increased by about one third, equalling about

four and a half years. So that in a sense, with

Trice 4/8/92

regard to the provisions of section 16G, the
sentence passed upon the applicant was increased if
one compares the previous sentencing regime to that

which obtained at the time the Court of Criminal

Appeal sentenced him.

It should be said, Your Honours, that the

non-parole period passed by the Court of Criminal remains subject to the recognizance release order

and will remain so subject until about March of

next year.

Your Honours, in interpreting section 16G,

there are already some decisions in New South Wales to which we would invite the Court's attention. In

Reg v Paull - - -

MASON CJ: What are these decisions going to establish,

Mr Hidden?

MR HIDDEN: 

Your Honour, in our submission they are going to

establish this, that initially in Paull,
Mr Justice Hunt was of the view that the section

required a palpable adjustment to the sentence.

Indeed, Mr Justice Hunt was of the view that in the

light of section 16G, when a head sentence was

determined, it should be determined prima facie and

then palpably reduced by the formula which was in

fact used by the New South Wales' authorities in

determining remissions upon a head sentence. It is

in that context that His Honour referred to quite a

complex calculation.

Subsequently, Your Honours, in El Karhani, the court was of the view that no specific complicated

mathematical formula need be made to make the

adjustment under section 16G, but none the less it

·acknowledged that regard should be had to the fact

that remissions were about one third. In

El Karhani itself, that is about the adjustment

which was in fact made; the court specifying prima

facie the sentence called for, and then indicating

the extent to which it had been adjusted.

MASON CJ: Adopting a two-stage approach.

MR HIDDEN:  Yes. The position became rather complicated,

Your Honours, in the decision of Corbett, (1991)

52 A Crim R 112, and perhaps that is the one to

which we should take Your Honours. Corbett was a

case in which the appellant had effectively been
sentenced to eight years with a non-parole period
of six years.

The primary submission in Corbett was that the non-parole period was excessive, and the court

Trice 4 4/8/92

agreed. In the meantime, section 16G had come into

force and the court determined that the minimum

term should be reduced, and then proceeded to

resentence. In resentencing, the court imposed

under the section 16G regime head sentences

aggregating seven and a half years, a reduction of

only six months.

DEANE J: Under 16G, to what State do you refer in making

this allowance for remissions, or are they the same

everywhere except New South Wales?

MR HIDDEN:  Your Honour, New South Wales is the only State to which 16G applies. It is the only State in

which there is no remission system.

DEANE J: That was not what I asked you.

MR HIDDEN:  I am sorry, Your Honour; I misunderstood

Your Honour's question.

DEANE J:  16G says that in sentencing in New South Wales,

you take account of the fact that remissions are

available in other places but not in New South

Wales. To what other system do you refer, or are

they all the same?

MR HIDDEN:  Your Honour, as I understand it, they are all

the same, and indeed - they are all much the same,

as was remarked by Mr Justice Kirby in El Karhani.

DEANE J:  And they are all automatic remissions or are they

all for good conduct?

MR HIDDEN:  Your Honour, as a matter of law, of that I am

not sure, but we understand the practice to be that

they are virtually automatic. The practice is that

remissions can be lost.

DEANE J:  If they are not automatic, your approach puts New

South Wales people in a more favourable position

than in other States.

MR HIDDEN:  Your Honour, I regret that I am unable to answer

that question. Certainly, at page 385 of

El Karhani, Mr Justice Kirby said just under

letter B:

It is not inappropriate to take into

account that throughout Australia the

reduction of custodial sentences for
remissions and the like is about one third of

the sentence. Again, this is not a fixed

ratio. But given the individualised

"adjustment" called for bys 16G, it is an

appropriate starting point.

Trice	4/8/92
DEANE J: That seems to answer what I was asking.
MR HIDDEN:	Your Honours, if one returns then to Corbett,

the court, having determined that it should

intervene and resentence, and section 16G being in
force by that time, the court reduced an eight year

sentence passed before the section applied to a

seven and a half year sentence passed after it

applied. It is difficult to see, Your Honours,

what effect was given to section 16G.

If one added about a third to the seven and a

half year sentence passed by the Court of Criminal

Appeal, one arrives at a figure of about 11 years
and three months, which of course was considerably

more than the eight year sentence originally passed

by the sentencing judge. Significantly,

Your Honours, the court in Corbett referred back to

El Karhani at page 117 and said:

We intend to follow the principles stated in

that decision.

He pointed out on the following page:

As was explained in El Karhani, this is not to

be done by some kind of mathematical formula.

However, it produces the result that an

appropriate head sentence is significantly

less than would be the case if the applicant

were being sentenced under the State

legislation. We have earlier remarked that,

compared with what has occurred in other

somewhat comparable cases, the aggregate head

sentences imposed by Judge Cooper could not by

any means be described as excessive.

The court went on a little later:

However, we are free to give effect to our own

views of what would be an appropriate head

sentence before and after that adjustment -

that is the adjustment required by section 16G.	It
is interesting, Your Honours, that the court says

both "before" and "after". The meaning of that
expression is a little obscure, but it does rather

suggest that the court is of the view that one can

determine a head sentence, make the adjustment and

then in some way readjust it, which appears to be
quite inconsistent with the intention of the
legislation. As I have said, Your Honours, the

result in practice is one which seems to indicate that little or no effect has really been given to

section 16G.

Trice 6 4/8/92

The significance of that, Your Honours, when we come to the case at bar is that, as I have said,

the Court of Criminal Appeal reduced the sentence

passed upon this applicant by one year in practical

terms, but in the light of the passage of

section 16G between the date this applicant was

originally sentenced and the date he was

resentenced by the Court of Criminal Appeal, it is

difficult to see what effect, if any, was given to

that section and what adjustment was made for the

fact that no remission system exists in New South

Wales.

That becomes even clearer, Your Honours, when

the matter came before the court on 6 November 1991
to adjust a technical error. The second judgment,

Your Honours, appears at page 100 of the

application book. There was an adjustment required because the court had wrongly specified the minimum term as a non-parole period rather than a

recognizance release order. It was also argued at

that stage, as Your Honours will see, that an

adjustment was required because section 16G had not

in reality been applied.

That argument was rejected by the court, but

at page 101 Mr Justice Newman specifically referred

to Corbett and to part of the passage in Corbett to

which I had previously referred. In other words,

Your Honours, the course of recent authority in the

Court of Criminal Appeal seems to show that

originally it was conceived that the adjustment

required by section 16G should be one which clearly

was of about the order of one third and should be

spelt out as such so that the prisoner would know

that he was receiving the benefit of section 16G,

being sentenced in the State where there was no

remission system.

Later authority, in particular Corbett, and

this present case seems to have departed from that

and have said that in some amorphous way,

section 16G should be taken into account, but it

need not be specified how it was taken into account

and it need not necessarily be a reduction of one

third.

Your Honours, in our submission, for those

reasons the Court of Criminal Appeal has slipped

away from the true purpose of section 16G, and it

is for that reason that we submit that this case

does raise a question of general importance in the

administration of criminal justice in this State

and requires the considered views of this Court.

As I have said, Your Honours, in effect, if

one compares the sentencing regime which existed at

Trice 7 4/8/92

the time sentence was passed and the requirements of section 16G at the time sentence was passed by the Court of Criminal Appeal, then in a very real sense, although the Court of Criminal Appeal found

error in the sentence, it in fact increased the

head sentence.

MASON CJ:	We follow the point you make.
MR HIDDEN:	Your Honours, that is the short point of the

application, that the Court of Criminal Appeal has,

with respect, lost its way in the application of

section 16G and that the section by its very terms,

particularly by the use of the words at the end of

the section, "and must adjust the sentence

accordingly", requires that a court determine in

the first instance what the appropriate head

sentence is, and then in New South Wales be seen to

reduce it by about one third, being about the

proportion which remissions would have benefited a

prisoner in other States of the Commonwealth.

Those are our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Hidden. Yes, Mr Weinberg?

MR WEINBERG:  If the Court pleases, the respondent concedes

that section 16G requires a reduction and that that

reduction ought to be a significant reduction.

There is no dispute at all between the parties so far as that is concerned.

The question that is agitated on behalf of the

applicant, however, in our submission does not

warrant the grant of special leave for at least two

distinct reasons. One of those reasons is that it

is by no means clear from the decision of the Court

of Criminal Appeal that the reduction required

under section 16G has not in fact been granted.

Secondly, in our submission, there is nothing

in section 16G in its terms or, we submit, properly

construed which requires a reduction of such

mathematical precision that one can say it comes to

a third or something very close to a third. What

is required is a real reduction and a significant
reduction but not necessarily a one third

reduction.

If we could expand on those two matters, and

perhaps before doing so correct one thing that was

said by our learned friend, New South Wales is not

the only State which has abolished remissions.

Victoria has also abolished remissions and is

therefore subject to section 16G, but that is a

very recent development.

Trice 4/8/92

What happened in this case was that the head

sentence of four years with a minimum of three, or

three years with an additional term of one year,

whichever way one characterizes it, was reduced to

a head sentence of three years with a minimum of

two. That is a reduction of about 25 per cent off

the head sentence and 33 1/3 per cent off the

minimum term.

Our friend's submissions are predicated upon

an assumption, and the assumption is that when the

Court of Criminal Appeal itself engaged in the

process of resentencing, the starting point had to
be the sentence of four years with a minimum of

three years that had been fixed by the trial judge.

That assumption we say is simply unwarranted,
because once error is found, as it was found by the

Court of Criminal Appeal in this case, specific

error, the error not being that the sentence was

manifestly excessive, the specific error was that

there had been a factual finding made by the trial

judge which was not open to the trial judge. That

vitiated the sentence and the Court of Criminal

Appeal was therefore obliged to resentence at large.

It was in no sense, in our submission,

constrained by the parameters of the sentence that

had been fixed by the initial sentencing judge.

The Court of Criminal Appeal went through the

exercise required under section 16A of going

through a series of factors and giving weight to
those factors - some aggravating, some mitigating -

and it would come to its own assessment as to what

the offence merited before reducing that sentence

to give effect to section 16G.

. There is no reason at all, in our submission,

why one should conclude that in engaging in that

process, the Court of Criminal Appeal came to the

same figure or something less than the figure that

had been initially arrived at by the learned sentencing judge. It could equally have come to a	figure of four and a half years or five years or
six years. It could therefore have given effect to
section 16G, indeed given a full one third effect
to section 16G, and the entire assumption that our
friend's submission is based upon would be
erroneous.

We know from the judgment itself that the

court expressly referred to section 16G, and that

appears at page 92 of the application book. Not

only did the court refer to section 16G - and

Your Honours will see that at the top of the page -

they set it out in terms. They noted that it was

applicable in New South Wales and they referred to

Trice 9 4/8/92

the decision in El Karhani's case, which has been

referred to the Court.

It is plain, in our submission, that the court

was conscious of the need to do what El Karhani

required. Indeed, my recollection is that one

member of the Court of Criminal Appeal in this case

had also sat in El Karhani's case - I think that

was Mr Justice Newman. So one can scarcely assume

that the court was not acutely conscious of what

had been laid down as a requisite under section 16G
and what had been laid down as being the way to

approach that section in El Karhani's case.

El Karhani had in effect corrected the view of

Mr Justice Hunt who had said that this process

required something akin to mathematical precision,

that one has to reduce by some figure of 6.6308 or

some such figure in order to give effect to

section 16G, and it said that the reduction should

be individualized to each particular case.	In some
cases no doubt it could be a third;	in some cases
it could be more than a third;	in some cases it

could be less than a third. The ultimate aim must

be, however, to impose a final sentence which is
appropriate for the severity of the offence and

proper in all the circumstances.

MASON CJ: But El Karhani had adopted a two-stage approach.

MR WEINBERG:	It had adopted a two-stage approach.
MASON CJ:	And that approach was not adopted in this case.
MR WEINBERG:	Your Honour, one cannot say that, with

· respect, because - - -

MASON CJ: Not explicitly adopted.

MR WEINBERG:  Not explicitly adopted, Your Honour, but we

submit it is inconceivable that the Court of

Criminal Appeal, having specifically referred to

El Karhani, having specifically referred to

section 16G, would have done anything other than

have adopted the approach that was set out in

El Karhani. El Karhani said it is not

mathematically one third; it is individualized.

Indeed, Your Honour, the one third figure is a

misleading figure because remissions do not come

off at one third right throughout the country at

all. In some places they are one third; in some

places they come off at 25 per cent, depending upon

whether a person has prior convictions or not.

Mr Trice had prior convictions, and under the old

regime he would never have been entitled to one

third remissions in any event, as I understand New

Trice 10 4/8/92

South Wales remissions and the way in which they

were calculated. So one cannot simply say that to

achieve that level of uniformity, one would

automatically reduce by that figure.

MASON CJ:  Mr Weinberg, Corbett preceded the first judgment

of the Court of Criminal Appeal in the present

case.

MR WEINBERG: It did, Your Honour, yes.

MASON CJ:  So that might be an explanation as to why there

was a reference to El Karhani, but no explanation

as to why the two-stage approach was not adopted.

MR WEINBERG:  It would have been perhaps unreported at that

stage, Your Honour, and certainly it was a

different court. Corbett comprised the

Chief Justice, Mr Justice Priestley and

Mr Justice Matthews. It may not have been drawn to

the attention of the court at the first hearing,

but it certainly was at second hearing in November.

MASON CJ: Yes.

DEANE J: But if the Court of Criminal Appeal were saying,

as they seem to be saying, that Judge Dunford's

sentence was too harsh on the approach that was
appropriate for him to adopt by reason of a mistake

and possibly by reason of another error, it is very

hard to see how they could have applied 16G.	How
could they have applied 16G?

MR WEINBERG:  They did not say "too harsh", Your Honour;

they said "severe". They said "severe" in a

context in which we submit, properly read, they

were saying, "severe, having regard to the findings

of fact that were erroneously made"; that is, on a

correct assessment of fact, the finding is too

severe.

DEANE J: But it is a strange result really, is it not, when

they are upholding the appeal and, as I say, they

seem to be saying that Judge Dunford's sentence was

too harsh.

MR WEINBERG:  It only seems paradoxical, Your Honour.

DEANE J: They really end up with the 25 per cent

adjustment.

MR WEINBERG:  But, Your Honour, that does not mean that they

have not done an adjustment and made it a

significant adjustment because, for example, if one

looks at what this court has actually done, it has

said it was not established to the requisite degree

that this man was the instigator and therefore that

Trice 11 4/8/92

finding should not have been made. That might be

worth a reduction of six months on a sentence of

four years, the absence of the ability positively to find that he was the instigator. If the court

had said to itself, "Well, we think four and a half

years is about right for a person who finds himself

in these circumstances. We reduce by six months

because he wasn't the instigator and we further reduce by a year, which is a quarter anyway, to

take account of section 16G."

They did not say that. They did not go

through that mathematical process of saying six

months of the reduction comes from this factor and

a year comes from that factor and they did not go

through it as a two-stage process. The question

really is whether section 16G requires them to do

so in terms or whether, at the end of the day, the

court simply has to go through the process.

DEANE J: Except it is an odd situation, is it not, if a

statute says a court must adjust something and the

court does not have to indicate that it has adopted

some process of adjusting something but simply

produces the result.

MR WEINBERG:  Your Honour, it has done more than produce the

result, because it has referred to the section in

terms and referred to the leading authority which

requires it to adjust and requires it to adjust in

a particular way according to a particular

principle. It has done all that.

DEANE J: But if a statute says to a court, "You must adjust

a sentence to reflect this fact", does that not

require the court to determine something before

adjustment and then adjust it?

MR WEINBERG:  Your Honour, there are many provisions in

sentencing statutes now which say that factors such as a plea of guilty must be taken into account. In

our submission, there is nothing which requires a

court to do other than to say, "I take into account

the fact that you have pleaded guilty." It cannot

be the law that the court must say, "and I have

reduced the sentence from a notional sentence of

two years to one and a half years to reflect that

fact."

DEANE J: But is that not what 16G says? Can the court say,

"I'm not going to adjust anything; I'm going to

reach something on an a priori basis"?

MR WEINBERG:  Your Honour, there are provisions in the

Crimes Act itself which expressly provide for the

court to demonstrate that it has reduced and

reduced by a specific amount. Section 21E, which

Trice 12 4/8/92

we have a copy of, is a provision which is drawn in

those terms and one can infer therefore that if

Parliament had required a court to go through that process, then that is a mode of drafting that would

have been followed. If it would assist the Court,

we could provide the Court with section 21E.

MASON CJ:	You might hand it up.
MR WEINBERG:	Your Honours, 21E(l)(a) and (b) specifically

provide that the court is obliged to state what the
period would have been without the reduction and

indicate in express terms the amount of the

reduction, as it were. So, in our submission, when

Parliament wishes to, in the very same part of the

Act, achieve the result that Your Honour

Mr Justice Deane is proposing, it can certainly do

so, and it has not done so in respect of

section 16G.

DEANE J: They would all have to sit up with calculators.

MR WEINBERG:	That is the complaint that was made by the court in El Karhani, that Mr Justice Hunt's
approach was a mathematical approach. It was a
gross departure from what ought to be the principle of sentencing which is that it is a very complex
matter not to be done by a computer, but to be done
through a synthesis of a great many individual
factors. That is why the court said 16G operates
on an individualized basis as a culmination of a
great many considerations and facts.

There is nothing unusual about Corbett. If

Your Honours note that in Corbett's case, the

complaint was about the minimum term; it was not

about the head sentence at all. Indeed, the court

said there was nothing excessive about the head

sentence of eight years in Corbett. They must have

notionally fixed a head sentence of about 11 years

as being appropriate and then reduced, perhaps by a

being appropriate and reduced by 10 or 15 per cent. third, or maybe they fixed a term of nine years as But to require an appellate court or a trial

judge to go through that two-stage process and
demonstrate mathematically the amount by which he

has reduced and so forth is, in our submission, a

recipe for a great deal of trouble in the future,

because once one starts introducing these kinds of

mathematical formulae that have to be complied

with, the work of the Court of Criminal Appeal is

certainly going to be greatly increased.

We say that the public interest does not

require that kind of process. What it does require is that the court be conscious of section 16G, take

Trice 13 4/8/92

it into account and reduce the sentence to give

effect to that section. We submit there is nothing

to indicate that that has not occurred in this

case.

We might note that the two-stage process has been eschewed in Victoria specifically, and indeed

in this State in Gallagher's case in New South

Wales, it has been commented upon by the Court of

Criminal Appeal that to insist upon a discrete

quantifiable discount being stated and so forth, is

potentially productive of a great deal of

difficulty. That is where our friend's submissions

lead, if they be correct, and we submit they are

not.

We do not propose to raise the point of the

fact that the man has finished his sentence and is

under a recognizance release order. He is required

to be of good character for the remaining eight

months of his sentence. If the Court deems that to

be sufficient to justify or trigger the grant of

special leave, we will not say anything about that.

If the Court pleases, those are our submissions.

MASON CJ:  Thank you, Mr Weinberg. Do you wish to say

anything in reply, Mr Hidden?

MR HIDDEN:  Just briefly, Your Honours. We accept that

generally speaking, when a court has regard to the

factors relevant to sentencing, in particular

factors of mitigation, it need not specify in terms

what discount that factor has brought about. That

is quite different from section 16G where the very

nature of the section requires that a discount be

specified and be given.

. Your Honours, in so far as my learned friend's

·submissions would suggest that where a Court of

Criminal Appeal does find error and is free to

resentence, it can in fact increase the sentence

passed by the sentencing judge, we would submit

that that is not the law, that its discretion to

resentence must be none the less within the

parameters of the sentence originally passed. My

learned friend's submission would suggest that the

Court of Criminal Appeal could do that, and indeed

may have done that in this very case.

DEANE J: But what he said seems to leave your argument

about an automatic third in a few tatters, does it

not, on the 25 per cent?

MR HIDDEN:  Your Honours, I certainly cannot dispute my

learned friend's information about that. It is

probably of no great significance, Your Honours.

In New South Wales many years ago it was the system

Trice 14 4/8/92

that an offender who was not a first offender

received a remission of 25 per cent only. That

long ago ceased to be the case in New South Wales,

and the remission of about a third became uniform

for all offenders. But I cannot argue with my
learned friend's proposition that in other States

of the Commonwealth, the practice is not uniform.

Your Honours, the only other matter is this:

in so far as El Karhani was saying that it is

inappropriate to apply a mathematical formula, in

our submission they were saying no more than that

there is no need to apply a precise formula so that

one ends up with sentences like five years, 11

months and 23 days. There is no need to do that.

You can round it off, provided the proportion is

about a third, which is what the prisoner would be

entitled to expect by the operation of the section.

They are the only matters in reply, if the Court pleases.

MASON CJ:  Thank you, Mr Hidden.

We are not persuaded that the Court of

Criminal Appeal failed to take into account or to

apply the provisions of s. 16G of the Crimes Act

1914 (Cth) in resentencing the applicant. The

Court of Criminal Appeal expressly referred to that

provision and to its earlier decision in El

Karhani. In these circumstances, it would not be

legitimate to infer that the Court of Criminal

Appeal failed to make a significant reduction on

account of s. 16G.

The application is therefore refused.

AT 10.05 AM THE MATTER WAS ADJOURNED SINE DIE

Trice 15 4/8/92