Weston v The Queen
[2000] HCATrans 382
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B50 of 1999
B e t w e e n -
TAM MINH NGUYEN
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Brisbane No B40 of 1999
B e t w e e n -
DAVID JOHN BOOTH
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
GLEESON CJ
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 9.35 AM
Copyright in the High Court of Australia
_____________________
MR P.J. DAVIS: If it pleases the Court, I appear on behalf of the applicant. (instructed by Messrs Russo & Coburn)
MR M.J. BYRNE, QC: May the Court please, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))
GLEESON CJ: Yes, Mr Davis.
MR DAVIS: Your Honour, can I please start with just a brief outline of the facts. My client was a 22-year-old man at the time of the commission of the offences. He was convicted on his own plea of one count of trafficking in dangerous drugs. It was a significant quantity of heroin. He was sentenced in the Supreme Court in Brisbane. The sentence that was imposed was calculated by adopting a nominal sentence of 16 years and then adjusting that sentence by reference to time in custody and other matters which then gave a sentence which was actually imposed of 13 years imprisonment. On appeal that was reduced to 12 years and eight months imprisonment.
GLEESON CJ: I am terribly sorry, what was the number that was reduced to 12 years and eight months?
MR DAVIS: Thirteen years was reduced to 12 years and eight months.
GLEESON CJ: Yes, thank you.
MR DAVIS: It may strike your Honour strange that there was that minor adjustment to such a lengthy sentence. The reason for it was that at the sentencing certain provisions of the Penalties and Sentences Act were overlooked both by the sentencing
judge, the Crown Prosecutor and, indeed, also defence counsel and because those provisions were overlooked the Court of Appeal felt obliged to resentence, ultimately coming to a conclusion very similar to that of his Honour who sentenced my client. By operation of the Penalties and Sentences Act, indeed, amendments that came into force in 1997, the effective term before being eligible for parole is eleven and a half years.
GLEESON CJ: That is the 80 per cent.
MR DAVIS: Yes, that is 80 per cent of the 13 years, plus the time in custody that he had already spent prior to sentence.
GLEESON CJ: Is that automatic or did it require a declaration?
MR DAVIS: The declaration was automatic by force of the section.
GLEESON CJ: Right, so by force of the statute.
MR DAVIS: By force of the statute the declaration had to be made.
GLEESON CJ: So we are not dealing here with an issue of the kind we looked at yesterday where there was a discretion in the judge as to whether somebody would be declared?
MR DAVIS: No. I will take the Court, though, to some of the cases that the Court looked at yesterday.
GLEESON CJ: Bojovic.
MR DAVIS: Bojovic in particular, because my principal submission is that two lines of authority have emerged, as one would imagine, one in relation to the discretion and one in relation to the approach that the Court should take where there is no discretion.
GLEESON CJ: Would you just in a very summary way tell me which are the cases in which there is no discretion and which are the cases in which there is a discretion.
MR DAVIS: Under the statute, your Honour?
GLEESON CJ: Yes.
MR DAVIS: There is no discretion once a sentence of more than 10 years is imposed. Could I take your Honours to the section. Perhaps that might be convenient. It is section 161. It is in the bundle.
GLEESON CJ: So there is a discretion as to whether you will impose 10 years?
MR DAVIS: Yes.
GLEESON CJ: But, once you do that, that has consequences under this legislation that are automatic?
MR DAVIS: That has consequences, yes. In fact, another time which is relevant is five years imprisonment because, once five years imprisonment is imposed, then the discretion arises, so, five years the discretion arises ‑ ‑ ‑
GLEESON CJ: But the imposition of the five years is also a discretionary judgment.
MR DAVIS: Yes, that is so. That is really the cornerstone of my submission because what the Court of Appeal has said is that in relation to the circumstance where the declaration is automatic, one does not look at in the sentencing process the impact of the section to the extent that it says that the offender must serve 80 per cent.
GLEESON CJ: Where do we find in the reasons in the present case the error on which you rely?
MR DAVIS: Firstly, could I take your Honours to page 2. There the learned President of the Court of Appeal in effect in one paragraph, the first paragraph, summarises my complaint, and that is that:
The applicant was convicted in the Supreme Court of Brisbane on 10 March 1999 of one count of trafficking in heroin. He was sentenced to thirteen years’ imprisonment. He claims that the sentence was manifestly excessive and that the Judge should have considered the effect of Part 9A of the Penalties and Sentences Act 1992 in determining an appropriate penalty.
Then turning to page 9 of the reasons, which is page 42 of the application booklet, there is a passage there quoted from Booth, and in fact Booth is the next application for leave that the Court will hear. What was said in Booth is that:
an applicant “cannot insist on the same level of sentence or the same expectation of early release as that which prevailed before the statutory sentencing regime was changed in 1997. In his case the harsher or more severe sentence to which he is now required to submit was not the consequence of any error in sentencing discretion on the part of the Judge below, but of a change in the law which is not part of the proper functioning of the sentencing Court to be astute in avoiding by imposing a reduced sentence designed to prevent or frustrate it.”
GLEESON CJ: Mr Davis, can I interrupt your argument to ask you about a matter of procedure. If the next application raises a very similar issue to your application, I wonder whether an appropriate course might not be for us to hear argument on both applications before we decide either application? Are you content with that?
MR DAVIS: Yes, your Honour.
GLEESON CJ: What about you, Mr Byrne?
MR BYRNE: Certainly, your Honour.
MR DAVIS: An approach was made some time ago by my solicitors with a view with having the two applications heard together.
GLEESON CJ: We can hear them successively, list them successively, and we can deal with them that way. We will hear argument on the present application and then on the next application and, indeed, it may be convenient to hear you and then Mr Callaghan before we hear Mr Byrne and he might address both at the same time.
MR DAVIS: Yes, your Honour.
GLEESON CJ: Is Mr Callaghan here?
MR P.J. CALLAGHAN: Yes, your Honour. If the Court pleases, I appear on behalf of the applicant Booth. (instructed by Clewett, Corser & Drummond)
GLEESON CJ: Are you content with that, Mr Callaghan?
MR CALLAGHAN: Yes, your Honour.
GLEESON CJ: Go ahead, Mr Davis.
MR DAVIS: Successive decisions of the Court of Appeal have, in effect, decided that the proper application of Booth is that one does not look at the effect of the 80 per cent when fixing the sentence.
GLEESON CJ: In other words, you exercise your discretion according to ordinary sentencing principles to determine what is a proper sentence, and if according to those principles it happens that you have concluded that a proper sentence is in excess of five years or 10 years, as the case may be, the statute then applies.
MR DAVIS: That is so.
GLEESON CJ: Presumably the argument is that if you did it the other way, you would be subverting the statute?
MR DAVIS: That is so but, in my submission, there is a middle ground and I will take your Honours to that in a moment. It is important then, in my respectful submission, to look at how the Court of Appeal has considered the situation where there is more than five years imposed but less than 10.
GLEESON CJ: Does it make any difference whether you are getting over the five year threshold or the 10 year threshold? Presumably the same principle applies.
MR DAVIS: The same principle should apply but the Court of Appeal has not applied the same principle, and that is my complaint. Could I possibly take your Honours to Bojovic. Bojovic is an unreported decision but is in the bundle of authorities.
GLEESON CJ: Now, is this what I might describe as the prevailing view in Queensland at the moment?
MR DAVIS: Yes, your Honour. This is the prevailing view in relation to the exercise of a discretion to make a declaration where the sentence is more than five years and less than 10.
GLEESON CJ: That is not what we are interested in though, is it? Are we not looking at the process that applies when you fix the head sentence?
MR DAVIS: Yes, but I do wish though to refer your Honours to Bojovic because there is an anomaly which has arisen in the decisions of the Court. At paragraph 28 – could I take the Court to that, please. It is on page 11. At paragraph 28 what is said is:
What has to be determined is whether in all the circumstances it is desirable that such a declaration be made. In deciding whether or not to make it, the court should not be blind to the fact that the making of it will have a serious aggravating effect upon the sentence.
Now, that statement in itself, in my submission, is certainly not a startling one and one would expect a court when considering ‑ ‑ ‑
GLEESON CJ: Whose judgment is this?
MR DAVIS: This is the judgment of the court ‑ ‑ ‑
GLEESON CJ: There is internal evidence in the second-last line of the page that it began as the judgment of an individual.
MR DAVIS: Yes.
GLEESON CJ: It shows the importance of proofing.
MR DAVIS: Yes. It is in fact a joint judgment of the Chief Justice, Mr Justice Thomas and Mr Justice Demack and I will not speculate as to whose judgment it originally was, your Honour, but is a joint judgment of the court. So, what the court is in effect saying is that when determining whether or not to exercise the discretion in favour of making a declaration of a serious violent offender, the court must of course look at what the impact of that is and the reason is, in my submission, that when determining what effective punishment should meet the crime, the effect of the sentence should be looked at.
GLEESON CJ: So the statutory scheme is that in some cases a court has a discretion as to whether to make a declaration.
MR DAVIS: Yes.
GLEESON CJ: In other cases, the court has no discretion as to whether to make a declaration but that absence of discretion flows from a decision of the court to fix a head sentence of a certain level.
MR DAVIS: Ten years, that is precisely right, your Honour, yes.
GLEESON CJ: That seems to suggest that what the legislature has done is to say if in accordance with ordinary sentencing principles, apart from the effect of this Act, the case is a proper one for a head sentence of 10 years, no discretion.
MR DAVIS: But of course, subsumed in that is the fact that the head sentence has to be set in the first place.
GLEESON CJ: Yes, according to ordinary sentencing principles.
MR DAVIS: Yes, and, in my submission, ordinary sentencing principles take into account the fact of the effect of the sentence upon the offender. So, if the court is called to sentence a person and the effect of the sentence is that he must serve 80 per cent of the sentence, then that is part of the punishment that the offender is suffering and that is ‑ ‑ ‑
GLEESON CJ: I understand the argument. So, where does Bojovic deal with that?
MR DAVIS: What Bojovic then does is at paragraph 34 on page 13 about 10 lines down the Court will pick up the words:
As an example, if according to ordinary principles -
Now, what the court there is doing is giving an example of the application of the Bojovic principles which is the discretionary situation.
As an example, if according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might not but must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence toward the lower end of the applicable range. Conversely if the judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence towards the higher end of the range.
So, what the court there is doing is acknowledging that one of the features, one of the considerations in imposing the sentence and making the declaration, is the impact upon the offender of the declaration. Now, in Booth the Court of Appeal has said, “We close our eyes to the effect of the declaration in circumstances where the offence attracts more than 10 years imprisonment”.
GLEESON CJ: I understand the issue and we will hear more about it in Booth, but how does it impact on your case?
MR DAVIS: In my case, the circumstances are that there is a 22-year-old man with virtually no prior convictions of any relevance who has to serve eleven and a half years actual time imprisonment and, in my submission, what should have occurred was that the head sentence should have been reduced not to circumvent the legislation, not to put him in a situation where he would have served only six and a half years imprisonment, being one half of the head sentence, and that would have been the case before the amendments, but the head sentence should be reduced so as to properly reflect his criminality which, in my submission, would have meant that he should have been sentenced to a term of imprisonment of 10 years.
GLEESON CJ: What does the legislation achieve?
MR DAVIS: What does the legislation achieve? It achieves extending the parole period for serious violent offenders.
GLEESON CJ: But the legislation does intend to draw a distinction, does it not, between some cases in which that is an automatic consequence and some cases in which a judge has a discretion about whether that result will follow.
MR DAVIS: Yes.
GLEESON CJ: What is the purpose of that distinction? What is the purpose of having two different classes of case?
MR DAVIS: To remove the discretion in relation to certain circumstances.
GLEESON CJ: Now, why does the legislature want to remove the discretion in some cases? Why does not the legislature give a discretion in all cases?
MR DAVIS: Because the legislature has obviously considered that it is important that persons who commit serious violent offences over 10 years must be subject to the stricter parole regime.
GLEESON CJ: But if your argument is correct, do you not in practice produce the consequence that the discretion will operate in all cases?
MR DAVIS: No. My submission is that, although the discretion is removed in relation to the serious violent offender provisions where the sentence is more than 10 years, the court does not then abrogate its obligation to ensure that the overall punishment is still proportionate to the offence.
GLEESON CJ: According to the sentencing principles that would apply, absent the legislation?
MR DAVIS: In that respect other difficulties arise because in coming to the conclusion, for instance, that my client should be sentenced to a period of 13 years imprisonment, comparative sentences were relied upon and those comparative sentences were decided or imposed before the legislation, so it then becomes somewhat comparing apples to oranges because when a judge before the amendments sat down to sentence an offender, of course he sentenced the offender knowing that the overall impact of the sentence was that he would be eligible for parole at half distance. This Court has said, for instance, that when looking at a sentence, setting a non-parole period is of course part of the sentencing process.
Could I take your Honours to some authority which I have which supports my proposition that there is an anomaly. This decision was decided after my outline was filed with the Court so it does not form part of the outline but it does form part of the bundle, and that is the case of Reg v Brown. I will trouble the Court to actually go to that decision, please.
GLEESON CJ: What number is that?
MR DAVIS: It is on the list.
GLEESON CJ: No 21?
MR DAVIS: Yes. This was an Attorney-General’s appeal. The outcome of it is something that I will not trouble your Honours with but could I take your Honours to the judgment of Mr Justice McPherson. At paragraph 3 his Honour discusses quickly Bojovic, then at paragraph 5, after referring to Booth and Crossley – Crossley is another case which is authority for the proposition that the court will not look at the impact of the parole period - his Honour says:
Those two decisions accord with a long-standing rule or practice followed in sentencing in Queensland under which the sentencing judge does not set out to adjust a head sentence where a parole recommendation is contemplated or made. The practice dates back at least as far as R v Black [1948] QWN 23. There Brennan J had imposed a sentence of imprisonment for five years, which was based in part on an assumption that the Parole Board would act in accordance with a letter he was proposing to send to the Board regarding parole for the offender. The Court of Criminal Appeal set aside the sentence of five years and substituted one of three years. With reference to the process by which Brennan J had arrived at the term of five years, Philp J said it was a judge’s duty to sentence a prisoner according to the terms of the Code, and that “it is no concern of his as to what the Parole Board may or may not do”.
Now, parole recommendations, of course, have come a long way in the last 52 years. But the important passage is at paragraph 10 where his Honour says:
No doubt what has been said here should be regarded as in the nature of generalisation; but that is so of most, if not all, of what pass for principles of sentencing. The point being made is, however, that describing the exercise of the sentencing discretion, including the possibility of parole, as an integrated process rather than a series of discrete steps is, on the authority of R v Bojovic, true of a case where the discretion has been or is being exercised under s 161B(3) or s 161B(4) to make a declaration that the offender is convicted of a serious violent offence. It is much less true, if at all, of the sentencing process in R v Booth or R v Crossley. On the authority of those two decisions, no general discretion to reduce the head sentence arises where and simply because the requirements of s 161A(a) are satisfied.
This is the passage in the judgment upon which I particularly rely, your Honours:
The distinction between that class of case and R v Bojovic may be difficult to justify as a matter of logic or statutory interpretation; but I respectfully suggest that the general principle underlying R vBlack should continue to govern the exercise of the sentencing discretion –
So, in my submission, that is some authority for the proposition that there is to a degree something which has arisen which is illogical, and that is that in the circumstance where there is a sentence of between five and 10 years, one of course looks at the impact of parole upon the offender, but then when it is above 10 years one does not.
GLEESON CJ: Your argument is, whether it is right or wrong, that it is in some way anomalous - perhaps an anomaly in favour of the offender - but it is in some way anomalous that when exercising the discretionary power given by Part 9A of this legislation a sentencing judge will take account of the effect of that exercise of the power upon actual time likely to be served in prison.
MR DAVIS: Yes.
GLEESON CJ: Whereas, when imposing a head sentence which will have consequences as to whether a discretion exists or not as to Part 9A, a judge simply applies ordinary sentencing principles as they would have applied absent this legislation.
MR DAVIS: Save that, in my submission, the ordinary sentencing principles would encompass that the judge would look at the effect of the sentence.
GLEESON CJ: What I said was ordinary sentencing principles as though this legislation had never been enacted. In other words, in order to tell whether this is a 10 year case you deal with the offender in the same way as you would have dealt with him or her as though this legislation had never been enacted.
MR DAVIS: Yes, so you ignore the effect of the legislation.
GLEESON CJ: We will hear what Mr Callaghan has to say about Booth and then we will hear from Mr Byrne.
MR DAVIS: Yes. They are my submissions, your Honour.
GLEESON CJ: Thank you, Mr Davis. Call the next matter, please. Yes, Mr Callaghan.
MR CALLAGHAN: The sentence in this matter was affected not only by the serious violent offender part of the legislation which was introduced in 1997 but also by the provision of section 156A which made mandatory the cumulative nature of the sentence imposed upon this applicant and the ‑ ‑ ‑
GLEESON CJ: Does the same logic apply to that, that if it is mandatory to make it cumulative the judge takes that into account and reduces the sentence?
MR CALLAGHAN: The question of special importance is whether or not the judge should apply the totality principle which is effectively ‑ ‑ ‑
GLEESON CJ: That does produce a fairly clear example of something that could appear to circumvent the legislation, does it not? What is the use of Parliament saying that in certain classes of case the sentences must be cumulative if the consequence of that is that sentencing judges in deciding whether cases fall within that category or in deciding the way to sentence people who fall within that category reduce the sentences by reason of the fact that they are cumulative?
MR CALLAGHAN: The submission is that Parliament had no such intention.
GLEESON CJ: Where do we find that statutory provision, Mr Callaghan?
MR CALLAGHAN: Section 156A. I believe it is in the Crown materials.
GLEESON CJ: Yes, we have it.
MR CALLAGHAN: It does no more than remove a discretion which would have otherwise existed in cases to make a sentence concurrent ‑ ‑ ‑
GLEESON CJ: It is subsection (2).
MR CALLAGHAN: Yes, your Honour.
GLEESON CJ: Now, what do you say should be the judicial response to that?
MR CALLAGHAN: In cases of this nature they must act in accordance with the section but then, nonetheless, look at the totality of the sentence that results from the application of that provision and determine whether or not the overall sentence does justice to the case.
GLEESON CJ: Now, where do we find that point being dealt with in the reasons here?
MR CALLAGHAN: It is page 12 of his Honour Mr Justice McPherson’s judgment, I think it is.
GLEESON CJ: What page of the application book?
MR CALLAGHAN: I am sorry, the corner of my book is missing.Page 28 is suggested.
GLEESON CJ: I have page 28.
MR CALLAGHAN: His Honour poses the question of whether:
the application of the totality principles nevertheless require his Honour here to adjust the head sentence by reducing its duration so to offset the impact of the change in the law –
and decides that it did not.
GLEESON CJ: Did not our decision in Siganto touch a point like this?
MR CALLAGHAN: It touched a point, I think, more like the serious violent offender aspect of the legislation. I do not know that it touched upon the totality principle as such.
GLEESON CJ: It is at line 25 on page 28 that his Honour comes to the point, is it not?
MR CALLAGHAN: Yes, and he says that it would:
reinstate the practice which s 157A(2) has plainly displaced.
That is a misprint, I would say. That should be 156A(2). That section displaced no practice, in the applicant’s submission. It was always open, and indeed would have more often been the case, that a sentence imposed upon someone already serving a sentence would ordinarily have been cumulative, as indeed was the case for this applicant who in the course of his first sentence committed an offence whilst in prison and received a cumulative sentence. But perhaps the clearest indication of the fact that the statute had no such intention of replacing the totality principle is to be found in the statute itself in section 9(2). I have copies of that section if it is not easily turned up. Section 9(2)(l) and (m) respectively. That section provides that the court must have regard to the matters which are set out there.
Now, the equivalent provisions in the Commonwealth Crimes Act were described by Justice McHugh in the case of Postiglione as a recognition of the totality principle and commonsense would suggest that those provisions are no more than a recognition of the totality principle. In the course of amending the legislation which introduced this provision, section 156A, and the serious violent offender provisions, section 9 was itself amended but this part of section 9 was left unaltered and unqualified, and the applicant’s submission is that as a matter of construction and of logic it is still a requirement that the court will look at the totality of a sentence imposed to see whether it does justice to the case.
CALLINAN J: Why would you not read section 9(2) as subject to section 156(2)?
MR CALLAGHAN: As I say, only that it was amended. Section 9 itself was amended at the same time and those sections were left unaltered. The submission is they should just be read, taken at face value, and the amendments should be seen as subject to that. That is really the applicant’s point on section 156A.
In relation to the other provision which was also applicable to Booth, I really do not have anything to advance on the submissions made by Mr Davis.
GLEESON CJ: Mr Callaghan, in relation to both of these points, is the current approach of the Queensland courts settled or is there a disagreement between the way Queensland judges approach these questions currently?
MR CALLAGHAN: It is effectively settled. As far as the totality principle is concerned ‑ ‑ ‑
GLEESON CJ: By these decisions?
MR CALLAGHAN: Yes.
GLEESON CJ: And as far as totality is concerned?
MR CALLAGHAN: Booth is, as far as I am aware, the only decision on that point, on 156A.
GLEESON CJ: That is the first case that was ever looked at?
MR CALLAGHAN: Yes. I do not know if any others are referred to in the judgment.
GLEESON CJ: I would like to understand a little better than I do at the moment exactly how you say it should work in Booth, by reference to the facts of Booth.
MR CALLAGHAN: The sentence imposed for the offences committed in 1998 ‑ ‑ ‑
GLEESON CJ: What I would like you to do is just tell us what the offences were, what approach the court took towards the matter of accumulation and what you say was the different approach it should have taken.
MR CALLAGHAN: Yes. Booth was serving a sentence for an armed robbery committed back in 1992, or thereabouts. He was sentenced then. He was then released on parole and committed two sets of offences involving armed robberies and breaking and entering, and sentenced at first instance to 12 years imprisonment. A consequence of his being sentenced to 12 years imprisonment was that he had to serve the balance of the first term, he had been released on parole and there was still five years, I think, of that sentence left to go, so he had to serve that. The combined effect of the provisions with which we are concerned was that the subsequent sentence of 12 years imprisonment which was imposed in relation to each set of offences committed in 1988 was that that 12 years imposed then should be made cumulative upon the balance of the period that he was serving and that he would not be eligible for parole in relation to that term until he had served 80 per cent of that 12 years.
GLEESON CJ: Now, do you say that if this legislation had never been enacted the judge who came to sentence him for the offence committed while he was still on parole would have had a discretion to make that sentence partly concurrent with the remainder of the sentence that he was to serve in relation to the earlier offence?
MR CALLAGHAN: He could have done it that way, although ordinary principles might suggest that he would in fact have made it cumulative but that he would then, after having performed that exercise, stand back and see whether the overall effect was such as - the phrase used is “to make the sentence a crushing burden upon him”.
The Court of Appeal in effect held that it was not open for him to do that. He set the sentence of 12 years, that it was automatically cumulative, and he was not to turn his mind to the totality principle. My submission is he would and should have moderated the term of 12 years imprisonment that he imposed by reference to the totality principle. Of course, the Court of Appeal did reduce that 12 years to 10 years on the basis that there had been insufficient recognition for the plea of guilty.
GLEESON CJ: You really find this being discussed, do you not, at page 26 and following of Mr Justice McPherson’s judgment?
MR CALLAGHAN: Yes, that is when he starts the discussion. My submission is that the error is best disclosed on page 28.
GLEESON CJ: Just let me read this myself. I thought there was a recent judgment of this Court in which we said, in relation to the matter referred to on page 28 line 15, that the practice of reflecting the totality principle by making sentences concurrent was preferable to the practice of reducing the sentences below what they otherwise ought to have been because, if an offender has been sentenced for multiple offences and then there is, for example, a successful appeal in relation to some of those sentences, there is a distortion in the remainder.
MR CALLAGHAN: Yes. Even in Mill it was expressed that the preference was to do it by way of making sentences concurrent, but Mill, in the passage referred to, which I think is extracted at page 25 of the book, was referring to the situation of a single sentencing court. Of course, in this situation we are talking about sentences imposed some years apart, a situation which was considered in the case of Clements which is also referred to in Mr Justice McPherson’s judgment. It is clear enough, in my submission, that the totality principle still applies when sentences are being made cumulative. I think the passage extracted from Clements reflects that. Thank you, your Honour.
GLEESON CJ: Thank you. Yes, Mr Byrne.
MR BYRNE: Thank you, your Honours. Perhaps a starting point is to go to the legislation if I may. Part 9A of the Penalties and Sentences Act was enacted in July 1997. Section 161A provides that:
An offender is convicted of a serious violent offence if –
the matter is one in the schedule to the Act and a sentence of 10 years or more is imposed. The consequence of that flows in section 161B that:
(1) If an offender is convicted…..the sentencing court must declare the conviction to be a conviction of a serious violent offence –
Subsection (2) provides that even if the court fails to make such a declaration, a person is deemed to have been convicted of such an offence. So, 10 years or more, no discretion, an absolute result.
The difference with the five to 10 scheme appears in the following subsections, 161B(3) and (4). The operative words are the last sentences of both subsections (3) and (4):
the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.
So one can draw from that, in my respectful submission, that the legislature was drawing a distinction between consequences which flow automatically for a sentence of 10 years or more and the discretion – it is still a twofold discretion, if you like – to a court imposing a sentence between five and 10 years. Indeed, subsection (4) allows for a declaration to be made for sentences below five years in certain circumstances. Importantly, that discretion to make the declaration is preserved for under 10 but not for over 10.
In the case of Nguyen the Court of Appeal assessed that the appropriate sentence on ordinary principles was one of 16 years imprisonment. That is not, in my respectful submission, comparing apples to oranges. It is comparing criminal conduct to criminal conduct. If trafficking of heroin was, prior to the amendments in 1997, worthy of a sentence of, say, 16 years imprisonment, the change of the legislation in 1997 could not alter the conduct such as to make it less deserving.
GLEESON CJ: What brought him down to 13?
MR BYRNE: What brought him down to 13 was two things: time spent in custody and an allowance of two years made for his plea of guilty and his relative youth.
GLEESON CJ: Then it is not 16 that is the figure we ought to be looking at; it is either 13 or 13 plus time spent in custody.
MR BYRNE: What the Court of Appeal did was assess that 16 was appropriate, absent mitigating factors.
GLEESON CJ: Yes, but surely that is not the figure that is appropriate to look at for the purpose of this legislation. You do not disregard a plea of guilty, do you?
MR BYRNE: No, quite so, but I am just explaining the mechanics of the Court of Appeal’s decision and the sentencing judge. It was to work out what would have been the sentence and then to discount. Two years was given for the plea of guilty.
GLEESON CJ: We start with the proposition that the view was taken that, on ordinary sentencing principles that would have applied if this legislation had never been enacted, about 13 years was the right head sentence.
MR BYRNE: Yes, your Honour.
GLEESON CJ: The adjustment is irrelevant to the principle that we are considering.
MR BYRNE: Quite.
GLEESON CJ: The question is whether or not, in the light of the operation of section 161B, that number of 13 should have been reduced to below 10.
MR BYRNE: Quite. That is the proposition that is put.
GLEESON CJ: That does not make it sound like a borderline case.
MR BYRNE: No.
GLEESON CJ: We will see what Mr Davis has to say in reply in answer to this, but at the moment it looks as though, unless he can say that the adjustment that should have been made on this account was so large as to bring the head sentence below 10 – in other words, an adjustment of three years – he does not get anywhere.
MR BYRNE: The only argument put forward to support a further reduction from 13 to under 10 was the effect of the legislation.
GLEESON CJ: Suppose you had perhaps a harder case. Perhaps it is a harder case than Mr Davis’ case. Suppose on proper sentencing principles, disregarding the statute, a judge would have considered that an appropriate head sentence was 10 years and six months. Presumably the argument against you is that you should then take into account the effect of the statute and do what?
MR BYRNE: Circumvent the statute by reducing the otherwise appropriate sentence to avoid the automatic operation of the statutory provision.
GLEESON CJ: Mr Davis says that is not circumventing the statute. He says that is just taking the statute as another factor to be taken into account according to proper sentencing principles. That is the argument against you.
MR BYRNE: Yes. The difficulty with that argument, in my respectful submission, is that there is that distinction drawn in the legislation between “must” and “may”. If the courts were to reduce it solely because of the legislation to avoid its operation, then that is avoiding the imperative which is placed in the statute. The other aspect that your Honour raises with me of the difficult case is that one would imagine that if the conduct was such as to normally warrant a sentence of, say, 10 or 10½ years and that were to be reduced to, say, 9 or 9½ years, then the conduct would most probably – and I put it no higher than that – warrant a declaration being made on discretionary grounds.
CALLINAN J: That cannot be right because the legislation itself contemplates that between five and 10 years the discretion is at large.
MR BYRNE: That is so, and that is why I put it no higher than ‑ ‑ ‑
CALLINAN J: I do not think you can even put it as high as that, myself. A judge might be tempted, in those circumstances, to impose a sentence of nine years and six months in order to have a discretion not to make a declaration.
MR BYRNE: And that is the inappropriate approach, in our primary submission.
CALLINAN J: I know.
MR BYRNE: I am simply advancing the options under the legislation. Your Honour is no doubt correct, but when one gets to that 10 year line – and clearly, as my learned friend Mr Davis conceded, the legislature was drawing a line in the sand to the effect that over that it was so serious as to require 80 per cent to be served.
GLEESON CJ: I suppose you can test the proposition also by looking at a case that is clear the other way. Suppose on ordinary sentencing principles an offender would merit 20 years, so there is absolutely no doubt that the automatic provisions of the Act will apply. On the argument against you, there being no discretion to exercise, what is the judge supposed to do about that? I presume the answer is: absolutely nothing.
MR BYRNE: As I understand my learned friend’s argument, the answer would be to reduce the 20 years to say 15 years to give some allowance for the operation of the legislation.
GLEESON CJ: That exposes the element of circumventing the legislation and the argument, does it not?
MR BYRNE: Quite so, with respect.
GLEESON CJ: What about the cumulation point and the totality principle?
MR BYRNE: The totality principle is again a result of change of legislation in July 1997. There was a specific provision dealing with accumulation placed in the Penalties and Sentences Act. That is 156A. As I understand my learned friend Mr Callaghan’s argument, despite that, section 9(2)(l) and (m) should have been removed if the legislature was, in effect, wanting to circumvent the totality principle.
GLEESON CJ: Mr Byrne, this is not an unusual pattern of legislation now. In at least one other Australian State of which I am aware, there is a similar provision relating to serious sexual offences.
MR BYRNE: That is the Northern Territory?
GLEESON CJ: I have the Western Australian legislation in mind. There may be other legislation that I simply have not come across yet.
MR BYRNE: It is akin, I suppose, to truth in sentencing, which was in New South Wales for some time, the abolition of remissions in the Northern Territory, of which Siganto was a decision that this Court considered. It is a reflection of the legislature wanting certain results for certain conduct. The complaint now made is that that is too harsh and therefore the legislation must be gotten around in some fashion. But to do so, be it in the 10 years or above declaration or in the accumulation, our submission is that that is to frustrate the effect of the legislation. The reason why, in our submission, the paragraphs in section 9 are left untouched is that the totality principle, as reflected in those provisions, applies in most cases. It does not apply where there is a specific later statutory provision in the form of section 156A which provides that in certain circumstances sentences for offences committed whilst on parole must be made cumulative upon the earlier sentence. That is what the Court of Appeal decided here.
GLEESON CJ: Is section 156A only applicable to sentences for offences committed whilst on parole?
MR BYRNE: No. Section 156A(1)(b) deals with the circumstances in which it applies: for example, someone serving a term of imprisonment, someone on parole, leave of absence and those other examples there. In the present case it was a prisoner on parole.
GLEESON CJ: If the usual method of giving effect to the totality principle in such a case was to make the sentences concurrent, subsection (2) plainly prevents that.
MR BYRNE: That is so, your Honour, and that is what his Honour Mr Justice McPherson, speaking effectively for the court, said.
GLEESON CJ: The only alternative possibility would be to reduce the sentences below what they otherwise would have been.
MR BYRNE: That is correct, your Honour, and that, as I understand ‑ ‑ ‑
GLEESON CJ: Which I think Mill said was the disfavoured way of giving effect to the totality principle for other reasons.
MR BYRNE: Yes, for other reasons. It was necessary in Mill because of the different States being involved, but here there is specific legislation which provides that the courts must do that and, as was mentioned in discussion before, for a court to say “I am bound to make it cumulative but I will nevertheless reduce it akin to making it a concurrent or partially concurrent sentence” is to, in our respectful submission, fly in the face of the legislation. In the case of Booth he was not someone deserving of sympathy from the courts if one looks to his history and the offences. The court here looked at totality generally in assessing the sentence - that is clear from the reasons – but they were not prepared to go the step further and say that there must be that reduction in the face of the statute. In our submission, there is nothing incorrect in principle in such an approach.
CALLINAN J: Mr Byrne, the only matter which troubles me a little is the fact that section 9 was amended but paragraphs (l) and (m) apparently remained unchanged, but I suppose one reads them subject to the later
legislation, 156, which makes it clear that whatever operation they might have in other cases, the explicit provision will govern a case of this kind.
MR BYRNE: That, with respect, is our submission. It would have been inappropriate to remove them for other reasons.
CALLINAN J: Yes.
MR BYRNE: Those are our submissions, if the Court pleases.
GLEESON CJ: Thank you, Mr Byrne. Mr Davis, there are two matters that you may need to deal with. The first is whatever you want to say in reply on the question of principle. But secondly, bearing in mind that yours was regarded as a case that merited 13 years on ordinary principles apart from the Act, there would be a question whether your case is a suitable vehicle, would there not? How can you get it down below 10?
MR DAVIS: In my submission, I do not need to get it below 10. The submission against me is, in effect, that the thrust of my submissions is to circumvent the legislation, but that is not so. If I can take, for instance, the 13 year figure – and in fact, could I possibly ‑ ‑ ‑
GLEESON CJ: Take my example of the person who merits 20 years.
MR DAVIS: Yes, I would prefer to deal with it on that basis, your Honour. Before the legislation was amended, that man would receive a sentence from the court of 20 years. He would then be eligible for parole at 10 years after serving half of his sentence. Now, if he was awarded a sentence of 20 years, he would serve 16.
GLEESON CJ: That is the purpose of the legislation pretty clearly, to make sure he serves 16.
MR DAVIS: Assuming that the 20 is right.
GLEESON CJ: Yes.
MR DAVIS: In my submission, when assessing the 20, one looks at the time he will have to spend in custody before parole. So it is an integrated process. It is not, as the court has done in Booth and, in my respectful submission, my learned friend Mr Byrne has submitted to your Honours, this isolated two‑step process. It really gets back, in my submission, to one of the first comments, with respect, that the Chief Justice made to me, and that is that the discretion in the Bojovic situation is a discretion just like the entire sentencing process.
GLEESON CJ: Staying with the 20 year example, if the consequence of this is that the judge who would otherwise have sentenced the man to 20 years ought now to sentence him – what, he ought to sentence him to 16 or whatever number of years would have produced the result that he would stay in prison for no longer than he would have stayed in prison before this Act was enacted?
MR DAVIS: No, that is not my submission at all.
GLEESON CJ: Well, what is supposed to happen?
MR DAVIS: My submission is that the court would say, in the exercise of the sentencing discretion, “Well, if I, the judge, award 20 years, then he would serve 16. That is just proportionately too much for what he has done when one looks at all the circumstances” – and I will take your Honours to a statement of this Court in a moment – so reduce the sentence to 15 years, he then has to serve 80 per cent of that, which of course is still more than what he would have served under the original situation. So he would still serve more and the purpose of the legislature has still been fulfilled, but the court does not turn its face away from the fact, the consequence, that awarding the 20 years will mean that he would have to serve 16, and that is just simply too much for the offence. That is consistent in principle, in my submission, with what this Court said in Shrestha 173 CLR. In the joint judgment of Justice Brennan, as his Honour then was, and Justice McHugh at the bottom of page 60, their Honours said:
Before turning to these matters, it is desirable to recall that an eligibility-for-parole order is part of a sentence, and the discretion which is exercised in framing an appropriate sentence –
and, in my submission, that is important that that is said because it recognises ‑ ‑ ‑
GLEESON CJ: Is that the same in Queensland, that an eligibility‑for‑parole order is part of a sentence?
MR DAVIS: Yes. The Court of Appeal, for instance, often on appeals interferes with just the eligibility-for-parole orders:
in a given case calls for an evaluation of all the relevant circumstances and a consideration of all the sentencing options which are available to the sentencing judge. It is one thing to identify sentencing principles which must govern the imposition of a sentence, to appreciate in some instances the priority of one principle over another –
and Veen is quoted –
and to attribute the appropriate weight to matters which must be evaluated for the differing purposes of determining a head sentence and determining a non‑parole period. It is another thing to attempt an artificial division of the indivisible process of determining the appropriate sentence to be imposed.
CALLINAN J: Your problem is the next words, “Subject to statute”.
MR DAVIS: Yes:
Subject to statute, a decision whether to make an eligibility‑for‑parole order is an integral part of the process of determining the appropriate sentence –
but, in my submission, all that the statute does here is limit the options and does not take away from the overall situation the obligation upon the court to fix what is an appropriate sentence for the crime. That, in my submission, your Honours, encompasses not only the head sentence but also the overall effect of the sentence. That passage, in my respectful submission, is consistent with what the Court of Appeal has said in Bojovic as the approach in those circumstances, and the illogical nature of the present approach in Booth is what was pointed to by Mr Justice McPherson in Brown. Thank you, your Honours.
GLEESON CJ: Thank you, Mr Davis. Yes, Mr Callaghan.
MR CALLAGHAN: Just briefly, your Honours. I should have referred the Court to section 9(3) which places a qualification on paragraph (2)(a), the point being that they have seen fit to qualify that part of section 9(2) but not (l) and (m). The other point I should have mentioned is that I do not believe that subsections (2)(l) and (m) were referred to at all in the Court of Appeal. They do not seem to have been adverted to by any of the parties, nor by the court.
GLEESON CJ: We will adjourn for a short time to consider the course we will take in this matter.
AT 10.34 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.38 AM:
GLEESON CJ: These two matter of Nguyen and Booth have been heard together because they raise related questions. The questions concern the meaning and effect of certain sentencing legislation enacted by the Queensland Parliament in 1997. As the decisions in both of these cases show, the Court of Appeal of Queensland has arrived at a settled construction of the relevant provisions of the Queensland statute. This Court is of the opinion that there is insufficient reason to doubt the correctness of that construction in order to warrant a grant of special leave to appeal. Both of the applications are refused.
We will adjourn for a short time to reconstitute.
AT 10.40 AM THE MATTER WAS CONCLUDED
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