Weleilakeba v The Queen
[1999] HCATrans 138
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S144 of 1998
B e t w e e n -
SUNIA CAMA WELEILAKEBA
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S147 of 1998
B e t w e e n -
LORIMA BASAGA
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
GLEESON CJ
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 12.01 PM
Copyright in the High Court of Australia
__________________________
MR S.R. NORRISH, QC: If your Honours please, I appear for the applicant, Weleilakeba, with my learned friend, MR S.J. ODGERS. (instructed by Voros & Associates)
MR T.A. GAME, SC: If the Court pleases, I appear for the applicant, Basaga, with MR P.J.D. HAMIL. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)
MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent in both matters. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))
GLEESON CJ: I take it that it is convenient to counsel for these matters to be heard together.
MR NORRISH: Yes, your Honour.
MR GAME: Yes, your Honour.
GLEESON CJ: Yes, Mr Norrish.
MR NORRISH: Your Honours, on behalf of the applicant, Weleilakeba, there is an application for an enlargement of time which is set out ‑ ‑ ‑
GLEESON CJ: Is that opposed, Mr Game? Yes, you have that leave.
MR NORRISH: Your Honours, this application in its consideration of the judgment in the Court of Criminal Appeal raises issues, in our respectful submission, of general importance in the administration of justice. It is submitted also that the judgment of the Court of Criminal Appeal represents what we would respectfully submit to be a gross violation of appropriate principle in sentencing and particularly in relation to the role of the Court of Criminal Appeal when resentencing a respondent to a successful Crown appeal.
The application centres upon three primary issues. The first one is the obligation of the Court of Criminal Appeal to give reasons in relation to the matters before it. Secondly, the obligation of the Court of Criminal Appeal to address the submissions that are put before it by both the Crown and the respondent and, thirdly, the appropriate and proper approach of a Court of Criminal Appeal to the process of resentencing when a Crown appeal is upheld. If I could take your Honours ‑ ‑ ‑
HAYNE J: Do you say as to the last that the principles are anything but well known? Are they not well established?
MR NORRISH: Your Honours, the principles so far as resentencing on the basis of consideration of double jeopardy are well known but this case, in our respectful submission, raises what I would call a novel circumstance in so far as there was an issue determined by the judge, not contested by the Crown, specifically addressed by the respondent but in respect of which the Court of Criminal Appeal found adverse to the respondent when it came to resentence, having upheld the Crown’s appeal.
GLEESON CJ: Would you just explain that a little further.
MR NORRISH: The sentencing judge in his determination of the matter found special circumstances and exercised his discretion pursuant to section 5(2) of the Sentencing Act to vary the relationship of the minimum term to the additional term. That matter was not the subject of address by the Crown. The Crown’s case in relation to the matter was that the minimum term was inadequate. It was an unusual application. There was no challenge to the total sentence imposed upon the respondent to the Crown appeal, the applicant here. The submission was simply that the minimum term did not properly represent the objective gravity of the offence.
But implicit in that submission, in our respectful submission, so far as the court was concerned in resentencing, was the need for the court, if it upheld the Crown’s appeal in relation to the inadequacy of the minimum term, to address the issue of, firstly, the judge’s finding of special circumstance and the subsequent exercise of discretion and decide whether it, in resentencing, ought determine that there were special circumstances and thus exercise the discretion available under section 5(2) or whether it would not.
In relation to the first two issues, if I could take your Honours very briefly to authority. In Fleming v The Queen (1998) 158 ALR 379, which is a decision of this Court, the Court was considering the requirement of a trial judge to give reasons when exercising jurisdiction pursuant to Part 9 of the New South Wales Criminal Procedure Act. If I could take your Honours just briefly to page 386 of that judgment where the Court, at paragraph 22 said, inter alia:
Here one of the questions raised by the appellant turns upon the significance for an appeal of a failure to observe the requirements imposed by Pt 9 of the Criminal Procedure Act.
Their Honours went on to say:
It was held in Pettit v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law.
This Court went on to say that any suggestion that that proposition broke new ground was not necessarily accepted by the Court. In our respectful submission, that proposition has equal application to a Court of Criminal Appeal.
GLEESON CJ: But was not the reason for the decision that the sentences were manifestly inadequate?
MR NORRISH: Yes, your Honour, but in fact, if I can take ‑ ‑ ‑
GLEESON CJ: How many words do you need to write to say that?
MR NORRISH: Your Honours, at application book page 55 the specific reason given by Justice Meagher was this, at line 12, after considering some of the submissions, he said:
I must say that I for my part would disagree with those arguments. It seems to me that his Honour’s remarks on sentence disclosed a serious mistake of law, in that his Honour gave no or very little consideration to the seriousness of the objective facts.
Now, in our submission, in the context of a Crown appeal directed solely at the minimum term, assuming that his Honour was correct in that finding, and assuming that the court would then exercise its discretion pursuant to section 5D of the Criminal Appeal Act to uphold the Crown appeal, it required the court then to exercise its discretion in relation to the appropriate minimum term having regard to the obligations created under section 5 of the Sentencing Act.
GLEESON CJ: Yes. Now, the statute says that if you decide there are special circumstances, you have to give reasons why.
MR NORRISH: Yes.
GLEESON CJ: If you do not, you do not have to explain why. At the concluding paragraph of the judgment they explain why there were special circumstances in the case of Mr Basaga. It is plain enough, is it not, that the court thought that there were no special circumstances in the case of your client.
MR NORRISH: Your Honour, with respect, section 5 does not quite say what your Honour says it says. If I might just take your Honour to the section. Section 5(1) says:
When sentencing a person to imprisonment for an offence, a court is required –
(a) firstly, to set a minimum term of imprisonment…..
(b) secondly, to set an additional term during which the person may be released on parole.(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.
GLEESON CJ: In which case it has to explain why.
MR NORRISH: Yes, your Honour, but in our respectful submission, there are two issues that arise here: firstly, in the context of the way the appeal was run by the Crown, our submission is, firstly, the Crown did not appeal the finding of special circumstances. No argument was put to the court to demonstrate that his Honour erred in the exercise of any discretionary he exercised pursuant to House principles and, in our submission, if no submission was put by the Crown in relation to the matter – and that is made quite clear at paragraph 23 of the Crown’s written submissions in relation to the matter – then the court in determining whether the minimum term – or the extent to which the minimum term ought be increased was still required, in our submission, firstly – our first submission would be - to determine that there were such special circumstances, absent any submission to the contrary by the Crown, and make the necessary order pursuant to the requirements of section 5 ‑ ‑ ‑
GLEESON CJ: But here the court was of the view that the conduct described in the judgment having taken place, a minimum term of 18 months should be increased to a minimum term of three years, and made other decisions about the head term.
MR NORRISH: Yes.
GLEESON CJ: Whether you agree of disagree with that conclusion, it is a pretty simple proposition, is it not? There is nothing very elaborate about it. The judge said, he did these things. Eighteen months is far too low. We are going to make it three years.
MR NORRISH: Yes, but your Honour, you cannot fix ‑ ‑ ‑
GLEESON CJ: You cannot write a book about that.
MR NORRISH: No, your Honour, it is not a question of writing a book, but there must be, firstly, a minimal requirement to give reasons as to why you determine that there are no special reasons when the sentencing judge found that there were.
GLEESON CJ: The reasons are the facts.
MR NORRISH: Yes, but the facts are the objective facts, your Honour, and may I simply say this, that one of the important issues here – and this is another matter that impinges upon the obligation or enforces the obligation, I should say, for the court to give reasons – is that in the fixing of the minimum term as a process of resentencing, the court is to apply general sentencing principles and, in our respectful submission, those general sentencing principles are set out in Bugmy v The Queen.
HAYNE J: Let all that be assumed. What then do you say the Court of Criminal Appeal should have done but did not?
MR NORRISH: It could have done one of two things. It could have determined in the resentencing process that having regard to the findings of the sentencing judge, and having regard to the submissions of the Crown, that there were special circumstances such as to warrant a greater additional term than would otherwise apply if special circumstances did not exist.
HAYNE J: The whole thrust of the appeal, as appears from application book 33, paragraph 23, was to focus on the minimum term, was it not?
MR NORRISH: Yes, your Honour, but that is precisely the point. The Crown’s submission in relation to the question of the focus on the minimum term to which your Honour refers stated this, same paragraph, application book page 33, line 40:
Even if special circumstances are found the minimum term must still reflect the seriousness of the offence ‑ ‑ ‑
GLEESON CJ: You are not arguing your client should have had a longer head sentence?
MR NORRISH: No, your Honour, because the Crown abandoned any challenge to the total sentence imposed. In fact, it was a matter of specific submission by the Crown in the course of oral debate. The learned presiding judge questioned the Crown about the matter prior to the court retiring to determine what it should do about it.
GLEESON CJ: Is your complaint that they did not give him a fixed term of three years?
MR NORRISH: No, my complaint is, your Honours, this, that in the context of the Crown’s complaint about the minimum term, in the absence of any submission by the Crown that the trial judge erred in determining there were special circumstances, if in fact the court was not in error in upholding the Crown appeal, in the process of resentencing the applicant the court was required, in our submission, to determine that there were special circumstances and thus come to a result which involved a minimum term less than was imposed ‑ ‑ ‑
GLEESON CJ: Mr Norrish, let it be supposed that we came to the view that, on the facts set out by Justice Meagher, a minimum term of 18 months was grossly inadequate and a minimum term of three years was no more than could reasonably be imposed. Where would we go from there in the disposition of this matter?
MR NORRISH: As the High Court? I would respectfully submit that that would involve this Court not dealing with the issue the subject of complaint. In our respectful submission ‑ ‑ ‑
GLEESON CJ: That is what I am trying to raise. What is the relevance of the issue the subject of complaint? The appeal focused on the adequacy of the minimum term. Suppose we were to agree that the conclusion the Court of Criminal Appeal came to about the adequacy of the minimum term was right.
MR NORRISH: Yes.
GLEESON CJ: Where do we go from there?
MR NORRISH: That would require your Honours then to consider whether the court erred – that is the Court of Criminal Appeal erred – firstly in not publishing any reasons in respect of its determination that there were no special circumstances.
HAYNE J: It becomes then an appeal against reasons, rather than an appeal against the order, does it? Is that the outcome?
MR NORRISH: Your Honour, one of the orders we seek in relation to this matter – and we would have thought it was the most appropriate order – was for this Court today to remit the matter back to the Court of Criminal Appeal to determine the matter according to law.
GLEESON CJ: But, as I say, suppose we looking at the matter thought, for ourselves, that the minimum term of 18 months was grossly inadequate and that the minimum term of three years, allowing for the fact that it was a Crown appeal, was right, where would we go from there? What would be the point of our remitting it?
MR NORRISH: This Court’s judgment on that matter would not be the appropriate approach by this Court to the determination of the issues. The issue for this Court to determine is whether, having regard to the judgment of the court, there has been demonstrated to be, firstly, an issue of general importance that requires a grant of leave or, alternatively, whether there has been, in the judgment of the Court, a gross violation of appropriate principle, either in relation to sentencing – and that is in relation to resentencing in this instance – or in the conduct of the Court of Criminal Appeal in disposing of Crown appeals. In our respectful submission, we get back to the situation that was advanced to the court by the Crown. The Crown’s position was that it was not challenging the total sentence. The Crown’s position was that the minimum term was inadequate but the Crown’s position also was that there was no error in respect to the finding of special circumstances.
HAYNE J: That is to argue from the tag “special circumstances” to some unassigned content to that tag, is it not?
MR NORRISH: Not really, your Honour, because ‑ ‑ ‑
HAYNE J: What content are you then giving the expression “special circumstances” in the context of 5(3)?
MR NORRISH: Section 5(2).
HAYNE J: Section 5(2) and 5(3), yes.
MR NORRISH: Excuse me. My learned junior points out what we submit to be one obvious point, and that is if there is a finding of special circumstances by the Court of Criminal Appeal, then the minimum term must be less than the three years imposed by the court, because the court is determining the minimum term in the context of a total sentence arrived at by the fixing of a minimum term first, and an additional term, of four years.
HAYNE J: Is it not to invert logic? Is it not to say, “There are special circumstances, therefore let me work out what the sentence is.”, rather than “Let me work out what the sentence will be and then assign to it the character ‘special circumstances’”?
MR NORRISH: Yes, but your Honour, the sentence had already been worked out because the Crown had said that the four years was adequate and in fact was not manifestly inadequate. Therefore, for the purposes of the court, the court had the two‑tier approach that it had to take. It firstly had to determine if it was going to, in resentencing the applicant, find special circumstances and if it was not, it was required, in our respectful submission, to give reasons as to why the sentencing judge’s discretion had miscarried.
GLEESON CJ: He got four years from the Court of Criminal Appeal.
MR NORRISH: He got four years, that is right, your Honour.
GLEESON CJ: What they did was alter the minimum term?
MR NORRISH: Yes, they altered the minimum term but, in our submission, in altering the minimum term, their Honours had to do that pursuant to the requirements of section 5. If I could take your Honours firstly to Brindley (1993) 66 A Crim R 204, if I may, one of the authorities that are on our list of authorities for the Court, the Chief Judge at Common Law said, at page 207, if I could just extract part of the penultimate paragraph:
Next, it is submitted that the judge appears, from the absence of any reference to them in his remarks on sentence, to have failed to consider whether special circumstances existed warranting a different proportion between the minimum and additional terms than that required by s 5(2) of the Sentencing Act 1989 (NSW).
His Honour went on to say, later in that paragraph:
As such appeals are inevitably conducted by counsel who did not appear at first instance, that submission is almost always based upon no more than the absence of any reference to the issue in the judge’s remarks on sentence. I do suggest that, in order to preclude this Court from drawing incorrect inferences in response to such submissions, sentencing judges should in every case make some reference to s 5(2).
GLEESON CJ: This is an appellate judgment where the central issue in the case was the minimum term.
MR NORRISH: Yes, the central issue was ‑ ‑ ‑
GLEESON CJ: Which is what special circumstances are all about.
MR NORRISH: The central issue was the minimum term, having regard to the stance of the Crown. Let us not forget, ,your Honours, that an appeal pursuant to section 5D is triggered by the administrative decision made by the Director of Public Prosecution that there should be an appeal pursuant to that section. It is for the Crown to determine the limits of the appeal, not for the court and, in our submission, if the Crown takes a particular stance – and this is a matter that arises, in our submission, in this case as an incident of what are said to be the special leave issues – a particular stance in relation to a matter, it is not for the court to make a finding adverse to the respondent contrary to the stance advanced by the Crown. In our respectful submission, that is what happened in this matter.
Further, we say that one of the problems, of course, is that there is no reasoning in the judgment for the benefit of this Court or anybody else, or particularly the respondent, to understand why the court came to that decision, beyond the general finding that there was an error by the trial judge in fixing the length of the minimum term.
Your Honours, we also rely upon the judgment of this Court in Nguyen v The Queen (1993) 68 ALJR 121. That, of course, involved complaint about the sentencing of offenders pursuant to – or without having regard to the Children (Criminal Proceedings) Act 1987. The Court said, inter alia, at page 121:
It is common ground…..it was incumbent upon the Court of Criminal Appeal itself to resentence the applicant. That required the Court of Criminal Appeal itself to address the question posed by s 18 of the Act and to determine whether, in the words of that section, the applicant should be dealt with “according to law” –
et cetera. In our submission, that judgment is completely on all fours with what we submit in relation to this matter, that if the Court of Criminal Appeal, having determined that the minimum sentence was inadequate, was required to resentence the applicant, it required the court to consider the operation of section 5. Of necessity, it required the court to consider the reasoning of the sentencing judge as to whether he was in error in exercising his discretion pursuant to section 5(2). In our submission, what the learned judge said – and it is set out, if your Honours please, at application book pages 19 and 20 in relation to the matter of special circumstances – is completely consistent with the approach of Courts of Appeal in relation to the fixing of that issue. May it please the Court.
GLEESON CJ: Thank you, Mr Norrish. Yes, Mr Game.
MR GAME: If the Court pleases, section 35A of the Judiciary Act contemplates cases - not solely cases that raise matters of general importance but cases where a Court of Appeal has failed to address the submissions put to it. Nguyen is an example of a case on sentence. Jones v The Queen, which is not on our list of authorities, but it is a case involving a failure of a Court of Criminal Appeal to address grounds put to it in relation to conviction. If I could just read one sentence:
As it is the duty of a Court of Criminal Appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal which is raised and argued unless the ground is plainly untenable or the party raising it succeeds on another ground.
Now, in this case, as with all Crown appeals, there are three issues that have to be addressed by the Court of Criminal Appeal. The first is, are the principles relating to Crown appeals satisfied? That is to say, are the principles in Everett and Griffiths satisfied. Secondly, should the appeal be dismissed as a matter of discretion? Tait v The Queen and such cases. Third, what should the sentence be on resentencing, having regard to double jeopardy and events which have transpired since sentence?
They are three discrete exercises. They were each addressed in this case. Evidence was put before the court and each of them had to be addressed. And they had to be addressed having regard to the way in which the sentencing judge addressed the particular case. Now, in the case of Basaga, the sentencing judge – and I should say it is my submission that in no sense does that passage at page 87 of the application book – it is a different page, obviously, but it has been read out before – address what the sentencing judge actually did in this case.
GLEESON CJ: What is the purpose of giving reasons for judgment?
MR GAME: There are several reasons. One is so that the person – so that it is clear that the submissions have been taken into account; secondly, to publish to others what the reasons are lying behind the decision ‑ ‑ ‑
GLEESON CJ: Do you think there is any doubt about why, in the present case, the minimum terms were increased as they were?
MR GAME: My client went from having a non-custodial sentence – a periodic sentence to full-time custody.
GLEESON CJ: The minimum terms were set as they were.
MR GAME: Sorry?
GLEESON CJ: Do you think there is any doubt – would anybody reading this be in any doubt as to why your clients were dealt with as they were?
MR GAME: Your Honour, the reason that is given is a reason that does not address the reasons that were given by the sentencing judge.
GLEESON CJ: The reason that is given is the seriousness of the offences they have committed.
MR GAME: Yes, but ‑ ‑ ‑
HAYNE J: And the sentence imposed at first instance was manifestly inadequate. What more does a Court of Appeal say?
MR GAME: The sentencing judge in this case said, this case of Basaga – he is a very experienced sentencing judge – he said this is one of those exceptional cases. This is an Osenkowski-type case where the interests of rehabilitation are the interests of the community and I have made that decision about this particular person. Not only that, this person went along with these offences for a series of reasons, but basically to show that he was a member of his peer group, in circumstances where he had been abandoned by his family. Now, the sentencing judge said, “I think this is one of those rare cases”. Now, it is to that point that the Court of Criminal Appeal had to address itself. But the Court of Criminal Appeal says not a word about it. The Court of Criminal Appeal does not say a word about the Ellis discount. The Court of Criminal Appeal does not say a word about the Cartwright discount ‑ ‑ ‑
GLEESON CJ: The Court of Criminal Appeal said that the sentencing judge has totally failed to appreciate the objective seriousness of these offences. They may have been right or they may have been wrong, but that is what they said. That was their reason.
MR GAME: That is the single reason. The sentencing judge said over and over again that he was fully cognisant of the seriousness of this offence. That is the whole basis upon which his judgment in relation to Basaga is predicated. He kept saying, “This is a very difficult sentencing exercise. These are very serious offences. But the circumstances I find in this case are somewhat different in relation to this young man, Basaga.” Now, it is not good enough to say his Honour gave very little or not consideration to the seriousness of the objective facts. Those are the reasons, beginning and end, in this judgment.
Now, let us say that submission was unsuccessful. But in any event I say, one could ask rhetorically, “What did the Court of Criminal Appeal think about the trial judge’s findings, what did they have to say about them, what did they have to say about the matters to which I have already referred?” We do not know.
HAYNE J: The asserted basis of decision was not the assignment of specific error. The asserted basis of decision was manifest excess; manifest inadequacy in this case, was it not?
MR GAME: Yes, but, your Honour ‑ ‑ ‑
HAYNE J: Are you seeking to attribute to the Court of Criminal Appeal a disposition founded on specific error?
MR GAME: No, my submission is that you cannot address the question of error without addressing the specificity of what the sentencing judge did. You cannot say he gave little consideration to X when he said, “I give
consideration to X but my conclusion is Y”, which is what the sentencing judge did in this case.
But let us say that submission is resolved unfavourably. The next head of the case was a case about discretionary dismissal. The Court of Criminal Appeal did not address that submission. And let us say that submission is addressed unfavourably. We come to the question of sentence. What will the sentence be? We have a person who has gone from part-time to full-time custody. We have a person who, with continuing evidence of rehabilitation and full-time job, which there was not a word about any of it. We have a finding of good prospects of rehabilitation, not a word about any of that. Then we have reasons given for finding special circumstances which are simply illogical and nobody would ever suggest – nobody has every suggested before or will suggest again – that the reasons given by the Court of Criminal Appeal for finding special circumstances were special circumstances. And that is it. That is the judgment.
In my submission, that is derisory of what was put of the sentencing judge’s findings and of what was put to the Court of Criminal Appeal. In my submission, for those reasons, this Court should intervene. In my submission, it is not for this Court to determine what it thinks is the appropriate sentence. That would be turning this into – and that is the answer to the question your Honour put to Mr Norrish – it would be turning this appeal into an appeal against sentence. It is not. It is an application for special leave founded on the failure of the Court of Criminal Appeal to address the case put to it at each of the three levels to which I referred.
In my submission, for those reasons, special leave should be granted. The matter should be remitted to the Court of Criminal Appeal.
GLEESON CJ: We do not need to hear you, Mr Blackmore.
We are not persuaded that the Court of Criminal Appeal made errors of the kind suggested on behalf of the applicants. The Court is of the view that there is insufficient prospect of success in an appeal to warrant a grant of special leave and in each case the application is refused.
AT 12.31 PM THE MATTER WAS CONCLUDED
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