Wong, Leung v The Queen
[2001] HCATrans 113
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S193 of 2000
B e t w e e n -
TAK FAT WONG
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S198 of 2000
B e t w e e n -
JACKIE KAI CHU LEUNG
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 2 MAY 2001, AT 10.15 AM
(Continued from 1/5/01)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Solicitor.
MR SELWAY: If it please the Court, a couple of preliminary matters. Yesterday your Honour Justice Kirby asked my learned friend the Solicitor‑General for the Commonwealth for articles on sentencing guidelines particularly overseas. The Commonwealth has handed up to the Court an article headed “Sentencing - Guideline Judgments” from the October 1998 Judicial Officers’ Bulletin. It is only a two-page article but the learned Solicitor asked me to draw your Honours’ attention to footnote 5 which contains a number of other articles relevant to that topic and if that is a satisfactory response ‑ ‑ ‑
KIRBY J: It does seem to indicate – I mean, if you look at the developments in Hong Kong, in England, New Zealand and in Australia and Canada, that this is a world-wide trend and that does tend, at least to some extent, to argue against the notion that this is inimical to the judicial power. If it is happening in courts of our tradition that are not so dissimilar to us in all parts of the world, then it does not seem to have been conceived of in those jurisdictions as inappropriate for courts.
MR SELWAY: I think your Honour the Chief Justice made the point yesterday that the problem of uniformity in sentencing is a general problem. And there is a limited number of responses to it. One of them is for the legislature to step in and remove discretions, which, as we all know, has happened in some jurisdictions. Another is for the courts to find, if they can, some way to provide greater certainty, and the question before the Court is whether this is a way that works.
HAYNE J: There is a premise for that submission; that what is called for is identity of outcome.
MR SELWAY: What is ‑ ‑ ‑
HAYNE J: Because it seems perilously close to adopting that premise, and if that is the premise, it seems to me to run contrary to the fundamental guiding principle that sentences are to be individually tailored according to the particular circumstances of the case and the offender.
MR SELWAY: Your Honour, the two propositions are not necessarily inconsistent. The proposition that two individuals, two cases which are alike, should get a similar outcome, and the proposition that cases that are dissimilar should not. Both of those propositions are true. The question is whether sentencing guidelines directed to the first proposition is inimical to the second.
GUMMOW J: It is just a question of which you extract: the meaning of “alike” or “dissimilar”, really.
MR SELWAY: Yes. And whether the guideline gives ‑ ‑ ‑
GUMMOW J: That is a quasi-philosophical question which no one ever directly faces in all of this material.
GLEESON CJ: Mr Solicitor, could I ask you for two pieces of information. I have read over the years quite a number of guidelines judgments of the English Court of Appeal, but I am not presently conscious of ever having read anything from the House of Lords on that subject. Has the House of Lords ever had anything to say about guidelines sentencing judgments?
MR SELWAY: Could I say this, your Honour? I am not aware of anything they have had to say.
GUMMOW J: They wisely keep out of sentencing appeals, I think.
GLEESON CJ: Would you mind seeing if you could find out?
MR SELWAY: Yes, your Honour.
GLEESON CJ: And the second piece of information I would like from you is this. Having read a number of English guidelines sentencing judgments, I infer, but I do not know, that duly‑appointed judges in England have available to them some kind of collection or compilation of those sentencing guidelines. It may be issued by the Judicial Studies Board. It may be prepared in some other way, but is there in existence a compilation or collection of current English sentencing guidelines that we could look at, just to see the form they take?
MR SELWAY: Yes. Certainly, your Honour. I will take that on notice and respond as soon as we can.
GLEESON CJ: Thank you. I presume that a duly‑appointed English judge, in order to become acquainted with the guidelines, does not have to go to the index to the law reports.
MR SELWAY: Yes. I will ascertain what the answer is, your Honour.
GLEESON CJ: Thank you.
MR SELWAY: Yesterday I was also asked about the position in Western Australia. The Western Australian legislation, if I just give your Honours the reference, is section 143(1) of the Sentencing Act 1995 Western Australia, which provides a power for the Western Australian Full Court to issue sentencing guidelines. Section 6(5) of that Act provides that sentencing judges must take “account” of the guidelines and that, to a certain extent, is the difference between the legislation here. That legislation was discussed in particular by Justice Murray in the Western Australian Full Court in the case of Reg v GP (1997) WAR 196, particularly at 235.
The other Western Australian case of relevance is a case called Serrette v The Queen which is unreported. That case is dealt with in some of the written submissions, particularly paragraph 5.38 of the respondent’s submission.
KIRBY J: The case Justice Murray dealt with was not a federal case?
MR SELWAY: No, your Honour. Serrette was. In fact, in
Serrette the Western Australian Full Court declined to follow the sentencing guidelines issued by the New South Wales Court of Appeal in Wong. Yesterday I was dealing with Police v Cadd (1997) 69 SASR 150. We have handed up copies of that decision. If I could quickly take your Honours to it.
GUMMOW J: The crucial passages seem to be at 165 to 167.
MR SELWAY: Yes, your Honour. Before I take your Honours to that, if I could take your Honours to two lines by Justice Lander in dissent, at the bottom of page 199 to 200, where his Honour said:
This Court ought not to indicate that the offence of driving whilst under disqualification is an offence of a kind which should usually lead to a period of imprisonment unless this Court is satisfied that any other sentence would be inappropriate having regard to the gravity of the offence.
With respect, we say that is the correct principle and, as we understand it, though we put it almost in the opposite way, that is the argument that my learned friend Mr Bennett was putting yesterday, that that is the reason why these are issues of principle and unless you can state, in effect, that there would otherwise be an error, you cannot issue a guideline.
KIRBY J: There is a statutory provision in 16A, is there not, equivalent to imprisonment being a last resort.
MR SELWAY: Yes, your Honour, and in fact in this case there was a South Australian provision which was equivalent and your Honour will see that that proposition is dealt with at page 164 to 165 in Chief Justice Doyle’s judgment where it was argued that that provision precluded the issuing of a sentencing guideline. The answer that was given by the court - and if I could then take your Honours to Chief Justice Doyle at 165 about point 2:
It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type. That is what the court did in Eldridge v Bates.
Then if I can take your Honours to page 166, second paragraph:
The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.
He then says that if you examine what was said in Eldridge v Bates, it is consistent with it. Then he goes on:
The court identified the offence of driving while disqualified as one in which deterrence must predominate in sentencing. To so decide is a proper function for this Court. In so deciding the court considers the seriousness of the offence, its character, the effects of the offence . . . the prevalence of the offence and other matters.
GUMMOW J: Where does this “function” come from? I have not seen that used in judgments before to describe what courts do. They have jurisdiction in powers.
MR SELWAY: And from that one would say that one can get a role, a function. Certainly it is a function of the court to determine disputes between parties before the court.
KIRBY J: But the dispute between parties is focused on the individual punishment of the particular person before the court. It is not focused on what the courts in other cases at other times between other parties in other circumstances involving other personal factors of the accused and other factors of the offence will do.
MR SELWAY: With respect, your Honour, we say that takes too narrow a view of the role of a common law court in establishing principle.
HAYNE J: Who is the contradictor? I can understand that the prosecution may appear having a general interest in the matter, but who is the contradictor whose interest is other than properly narrow and self‑focused?
MR SELWAY: We say, with respect, that goes from the particular facts of this case and the question of whether in this case there is any relevance between the guideline and the sentence to the broader proposition of whether you can ever give a guideline. If one takes the case of Police v Cadd, there was a contradictor.
HAYNE J: And who was that?
MR SELWAY: It was the party arguing in that case that the guideline that had previously been issued was wrong.
KIRBY J: But his only interest is to argue about it for himself. He is not there to argue about it for future cases that have nothing to do with him. Justice Hayne put his finger on what seems to me the basic problem from the point of view of the complaint that it is legislative in nature, that it does involve the executive arm of government, the prosecutor getting very close to the judicial, and having a cosy little arrangement whereby between them they set up this scale, there is no one there to speak for the future cases about where that scale should be. There is only the one accused, who in this particular case that is now before us had no interest at all in the scale because he did not fall within it.
MR SELWAY: The question South Australia is here to address, in effect, is the question whether a court can properly say, to take an absurd example, the offence of robbery with violence would normally require a custodial sentence.
GLEESON CJ: Well, I do not know why you say that is absurd. For about 30 years or more courts have been saying anyone who is guilty of drunken driving and drives dangerously and causes the death of another person would ordinarily expect a custodial sentence. That word “ordinarily” was used to leave open an area of discretion, but even that proposition which has been around for a long time limits sentencing discretion.
MR SELWAY: Yes.
GAUDRON J: It does not say if he is of mid-range or if she is of mid‑range drunkenness, it should 5 to 7 years, and if he/she is wholly drunk, it should be 7 to 10 and so forth.
MR SELWAY: But the issue, with respect, is whether the Court of Appeal is wrong in saying that the relevant issue is, in this case, the amount of cocaine, the amount of heroin, whether that is a wrong principle to adopt.
GLEESON CJ: I notice that in Cadd a passage from a judgment of Justice McHugh is quoted at 159, where he makes the point that the very purpose of the jurisdiction to hear Crown appeals against sentence is to maintain uniformity of sentencing.
MR SELWAY: Yes, your Honour, and we would say that that is the broad proposition. In fact, it was applied in Police v Cadd to reject an ‑ ‑ ‑
KIRBY J: But it begs the question before us, does it not, because his Honour was there dealing with, and we are here dealing with, the particular case, whereas there is the extra step – I am not saying that it is necessary invalid – but the extra step is to deal with a range of other cases which are not before the court and which do not have parties with an interest to argue one way or the other.
MR SELWAY: Your Honour, in a moment I will come to what we say are the limits upon the capacity of the court go give guidance, but we just put the broad proposition that the giving of guidance to lower courts is a proper role of appellate courts carrying out a judicial function and it is a proper role of courts carrying out federal judicial power.
GLEESON CJ: Do questions of degree come into it?
MR SELWAY: Yes, your Honour, they do. The question of degree as to whether one has, as it were, stepped the line between providing guidance and providing prescriptive rules. There is a question of degree as to whether the guidance is sufficiently related to the matter before the court. In this case the matter was the appeal. Does the guidance given in this case have a sufficient relationship to the appeal to be a proper exercise of federal jurisdiction? Now, we make no ‑ ‑ ‑
GLEESON CJ: One of the reasons I ask you for that compilation of English guidelines judgments is that I just have an impression that if ever I could lay my eyes on one of those, I might be surprised at the extent of the guidance that is actually given to judges in England.
MR SELWAY: Yes. Certainly it is my understanding that in England and in some other countries, Hong Kong, for example, the prescription is quite strict and rigid, as ‑ ‑ ‑
KIRBY J: But none of those, save possibly Canada which has always taken a slightly different view about the judicial power to this country, is a federal system, and none of the, as it were, has to answer the question we do about whether or not this is consistent with the separation in a federal case.
MR SELWAY: Your Honour, it is our submission that if the South Australian Supreme Court in Police v Cadd had been exercising federal jurisdiction, its approach would still have been a correct approach to the question. The answer it gave may or may not have been right, but that can be analysed in the ordinary way as to whether they were right in their analysis of the offence. But in terms of the exercise of a power of giving guidance, we say that their approach was correct.
In that regard we would also say in relation to section 16A of the Crimes Act that that is not inconsistent with such a power. If the power is understood in the way we put it, that is to say that the power is a proper description of the exercise of the discretion, then it is not inconsistent for an appeal court to say, in effect, that another court properly exercising section 16A would achieve a certain result. A court is not then properly exercising its discretion under section 16A if it comes to a different result.
The final matter we wish to refer your Honours to is that the submissions generally in this case have been concerned with appeals, for obvious reasons. We would also submit that the relevant judicial role of giving guidance may even extend to trial courts. An example would be the issuing of guidelines to the police on how to interview witnesses. Could I just refer your Honours to Justice Forster in Reg v Anunga (1976) 11 ALR 412 at 414 to 415, which were guidelines on how to interview Aboriginal witnesses.
CALLINAN J: There used to be the Judges’ Rules, too, of course.
MR SELWAY: The Judges’ Rules are a little different, your Honour. My understanding of the history of those is that they were provided by the Queens Bench Division at the request of the Home Secretary but we would have no doubt that formed an advisory opinion, if anything did, so we certainly would not suggest that that provides ‑ ‑ ‑
CALLINAN J: They used to be generally applied in Queensland by judges and they were regarded, I think, in much the same way as guidelines, although there was no statutory basis or otherwise in Queensland for them.
MR SELWAY: No, and our understanding is that the Rules, as I say, came from a request from the Home Secretary to the judges of the Kings Bench Division to provide some assistance, which they did, and then in due time they were incorporated into the unfairness discretion and applied that way.
The principles stated by Justice Forster in the Northern Territory Supreme Court, as we understood, have been applied generally in the application of the unfairness discretion but we say, given the breadth of that discretion and the fact that the propriety of police interviews arose directly in the two cases before Justice Forster, we would say that guideline was a proper exercise of judicial power. Maybe another question is whether the guidelines were right or not but we say that his Honour was entitled to do it and if his Honour had been exercising federal jurisdiction, which he was not, he still could have done it.
KIRBY J: Was he purporting to do any more than to say, “I search for the criterion to be applied in this case. The criterion is this set of rules for conduct and by that criterion the police erred or didn’t err.” Now, was he purporting to do more than that?
MR SELWAY: I think one would have to say yes. His Honour found that the police had erred, that their procedure was unfair, and then went on, in effect, to say, “If you adopt this procedure, it would be fair.” That, I think, goes further than merely answering the case that is before him, and is a matter of guidance.
GLEESON CJ: There was a great controversy a few years ago, that I hope was put to rest, in New South Wales in a case called Gallagher, about discounts to be allowed for co-operation with the authorities. Do you recollect that issue?
MR SELWAY: I recollect the issue, your Honour, yes.
GLEESON CJ: And indeed, different jurisdictions took somewhat different views about that, although I may be demonstrating now that I am out of date. But what was once the Victorian view prevailed, that is to say that there should not be a specifically quantifiable discount; that there used to be some judges who took the view that you should actually specify the discount, and views were expressed as to what was an appropriate discount. Is it a proper judicial function for a court of appeal to say that co-operation with the authority should ordinarily merit a discount of a certain level? My recollection is that the English actually specify a discount for what they called a “supergrass”.
MR SELWAY: Yes. And my understanding – I may be corrected – my understanding is that in Hong Kong, for example, you get different penalties which are effectively set out in the guidelines: if you plead guilty, if you do not plead guilty, and whatever.
GLEESON CJ: People used to use expressions like “up to 50 per cent”. And I think that was the going rate for being a supergrass, at one stage.
MR SELWAY: Your Honour, what we would say is it is perfectly proper for a court of appeal to say that there should a discount for assisting the police. That is clear. The question then is: can one say that there would be an error of principle by a trial judge if you did not give a discount of 50 per cent? And if the answer to that is no – and we would say that is the answer ‑ then you could not issue a guideline as to what the principle should be. It is a matter of too individual an approach. For many offences, that is the case. The West Australian Full Court, for example, in that reference I gave your Honours, R v GP, said in respect of a particular sexual offence that the range of activity, the range of penalty, was so broad and so individual you could not give any guidance at all as to what the sentence should be. But that is not true of all offences.
GLEESON CJ: In South Australia, is there either a legislatively prescribed standard for the discount you get for a plea of guilty or any judicial guidance about that?
MR SELWAY: No, your Honour. If I can put it this way, I am not aware of anything except the general statement that one can get a discount for a plea of guilty, but I do not think there is any tariff set for what that should be and certainly not by statute. If it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases, we have a short submission in supplementation of our written submissions. At the outset we distinguish between two separate, but in one sense related, questions that are before the Court. The first of those is whether the Court of Criminal Appeal was entitled to increase the sentences of the two offenders in this case. That is a matter on which we did not make submissions below and we do not make submissions in this Court. The other question is whether the Court of Criminal Appeal was entitled in considering the issue of what was an appropriate sentence in relation to the offences before it, which in this case was the importation of heroin, to set out its views on what are appropriate sentences for such offences.
I say set out its views in that way because, in our submission, what was done by the court here was to set out its views but to give a numerical aspect to those views and, therefore, in that sense, to carry out a role that has been traditionally carried out by Courts of Criminal Appeal in all jurisdictions and to do it here with that numerical basis.
KIRBY J: Let me understand that. Do you say it has been traditionally the role of Courts of Criminal Appeal to set out a table such as appears in this case? That is not my understanding.
MR SEXTON: No, it traditionally – in earlier times, your Honour, it has not been set out in that tabular form.
KIRBY J: Well, leave aside the table, you have had in the past general statements such as the driving under the influence and so on ought ordinarily to carry, and words of that kind, but this is getting to a degree of specificity that, at least on the face of things, looks a little bit more like legislation than like a judicial pronouncement in a particular case. I am not saying the fact that it is new is necessarily a reason for rejecting it, but it is qualitatively different, is it not?
MR SEXTON: We would say not, your Honour. In fact, it is perhaps quantitatively different and not qualitatively in part in relation to the offence of narcotic importation. That is because there are variations in quantities and in degrees of participation in a way that, of course, with the offence, for example, of culpable driving you do not have. With many other offences you do not have that kind of range of activities so that you would not have to set out sentencing indications in the same way.
KIRBY J: I am not sure about that. What if there are multiple charges, as there sometimes are, for manslaughter, driving in a manner dangerous, driving under the influence, negligent driving? You can get a whole range of offences and sometimes people are charged in the alternative.
MR SEXTON: Well, in New South Wales, your Honour, the offence is culpable driving when a death results from driving ‑ ‑ ‑
KIRBY J: It can be manslaughter.
MR SEXTON: ‑ ‑ ‑ of the kind that your Honour describes.
KIRBY J: It can definitely be manslaughter.
MR SEXTON: It can, your Honour, but that is an unusual charge for a driving offence.
GLEESON CJ: Was there ever legislation in New South Wales specifying either the discount or the maximum discount that you can get for a plea of guilty?
MR SEXTON: Not that I am aware of. As your Honour may be aware, the Court of Criminal Appeal has recently heard argument in a case concerning that very question, the discount for a plea of guilty.
GLEESON CJ: My recollection is that the two areas of greater specificity that used to be brought up were discounts for pleas of guilty and discounts for co‑operation with the authorities but they were alway accompanied by a warning that these were maximum levels of discount and it would have to depend upon the circumstances. For example, you might be entitled to very little credit for a plea of guilty if conviction was inevitable. On the other hand, you might be entitled to a very substantial credit for a plea of guilty if the offence would never have been discovered but for the plea and so forth. But, in both of those areas such a degree of specificity was reached that counsel for convicted offenders arguing that a sentence was manifestly excessive used to routinely put an argument saying if he had pleaded not guilty consistently with this sentence he would have been given so and so, and that is obviously too much. They used to work back mathematically to what they said the result would have been if there had been no plea of guilty. Such was the clarity with which people thought they understood the discount would be treated.
MR SEXTON: Your Honour, the balance that is required to be stuck is really between a degree of mathematical certainty which is obviously impossible to reach and a set of indications for what in the case of New South Wales, in the case of District Court judges, where most indictable offences are tried are ‑ ‑ ‑
GLEESON CJ: Where do you draw the line between an appellate court giving proper and, some would say, necessary and importance guidance to maintain uniformity of sentencing and an appellate court getting into the area of legislative prescription?
MR SEXTON: The line can be reached - I suppose what we say about this judgment is that it certainly does not cross the line. We say it does not really approach it.
GUMMOW J: What is the line?
MR SEXTON: Your Honour, it is not possible to specify the line in the ‑ ‑ ‑
GUMMOW J: But you can tell when someone has crossed it, can you?
MR SEXTON: I am not sure that I can, your Honour, but that is, in a sense, the ‑ ‑ ‑
GUMMOW J: That is the problem with these common law debates, really.
MR SEXTON: As your Honour points out, it is a question of where the line falls between two extremes.
GAUDRON J: At least in federal jurisdiction one would have thought the line was crossed if a guideline sentence would be issued in the manner contemplated by the New South Wales legislation, would one not, that is to say, independent of an actual appeal? You would think that, would you not?
MR SEXTON: I would think that, yes, your Honour.
GAUDRON J: Because you would then not be exercising ‑ ‑ ‑
MR SEXTON: There would not be a matter in that case, your Honour.
GAUDRON J: And you would not be exercising judicial power. Well, what, then, in a case such as the present where there is an appeal, which seems to me to have been seen as the first convenient bus to hop on to issue a guideline sentence about, which in the words of the Chief Justice, was not relevant to the appeals? You would think, if that is a correct analysis of the guideline judgment, the line had been crossed, would you not?
MR SEXTON: Well, not for two reasons, your Honour. The first is that the offence of importation was before the court and it was that offence that court set out – whether they are called guidelines or indications or principles, in our submission, is not really helpful. Some of those terms are perhaps more useful than others, but in this case here the offence was before the court.
GAUDRON J: Well, there might be a difference if the offence or the relevant factors in relation to the offence had been characterised as a low level courier.
MR SEXTON: Well, your Honour, that is why I say that in the area of drug importation there is the range of quantities and the range of participation, but we would say it is quite legitimate for the court when considering the offence to deal with sentencing indications for all or some aspects of that offence.
HAYNE J: Well, can I offer this distinction for your submission, that it is necessary to distinguish between the specification of matters that are or are not to be used as criteria distinguishing either between offending conduct or between offenders is a necessary step in identifying whether a sentence is or is not excessive or inadequate when you are doing that by comparison with other sentences. Doing that is judicial, that is, identifying relevant criteria, but the specifications of outcomes for future cases is not; that is legislative.
MR SEXTON: Your Honour, that raises the question of Justice Gummow’s line, but can I say that the Court of Criminal Appeal in this case and in subsequent cases that have been quoted to your Honours indicated really the width of the discretion that is still available to the trial judge. It has been underlined in numerous points in the judgment. I wonder if I could, just on that subject, take your Honours to a case that was handed up this morning, which is Reg v Karacic. It is a decision of the New South Wales Court of Criminal Appeal dated 2 February 2001, No 12 of the NSW Court of Criminal Appeal for 2001, a judgment of the Chief Justice and Justices Grove and Whealy, again concerning importation. If I could take your Honours to paragraphs 51 and perhaps particularly 52 of that judgment where the Chief Justice refers to two paragraphs of his judgment in this case – that is in the judgment of the Court of Criminal Appeal in this case. In paragraph 52 he talks about this question of judicial discretion and he says that:
in paragraph 141 –
of the judgment below –
I made express reference to the fact that sentences outside the range would be appropriate where circumstances could be identified. I mentioned, some of those factors in paragraph 141, indicating that it was not intended to be an exhaustive statement of those factors. Nothing in paragraphs 140 and 141 was intended to qualify the proposition stated earlier in Wong itself, and other guideline judgments of this Court, that the guidelines were intended to be indicative only. Nevertheless they are appropriate indicators or, to use the words of Winneke P again, a “sounding board” or a “check”, so that in circumstances such as the present, the Court does not fail to consider the level of sentences that have been found to be appropriate in the general run of similar cases, whilst taking into account the differences between the circumstances of the individual case and those of previous cases.
In answer to your Honour Justice Hayne, we would say that that indicates that the discretion that is available to the trial judge in these matters, that Justice Winneke’s notion of a check of a sounding board, is the way in which these indications are to be used.
GAUDRON J: Let me take you to paragraph 37 at page 7 in the judgment of Justice Whealy. It begins:
Having regard to the guideline judgment . . . and to all of the other matters that I have mentioned –
we will not worry too much about the other matters that “I have mentioned”. Do you put the submission that that opening reference to the guideline judgment is in conformity with the opening words of section 16A(2)?
MR SEXTON: Yes, your Honour.
GAUDRON J: Well, why? I mean, it has to be to be right, does it not?
MR SEXTON: Yes, but, your Honour ‑ ‑ ‑
GAUDRON J: Which says, “In addition to other matters”. One would have thought, as a matter of statutory construction, that that meant general sentencing principles, the other matters referred to general sentencing principles, would one not?
MR SEXTON: Your Honour, that is the end of Justice Whealy’s judgment where he has gone ‑ ‑ ‑
GAUDRON J: Yes, but it clearly shows the influence that a guideline judgment now has. He lists it as the first matter to which he has had regard.
MR SEXTON: Your Honour, that is after he has set out a lot of other matters in the judgment up to that time about these particular cases. There is no doubt – your Honour, I do not want to step away from the fact that the judgment of the Court of Criminal Appeal is designed to provide a reference and a check for, particularly, judges of the District Court in New South Wales.
GAUDRON J: Yes, but the question that does arise is how that statement relates specifically to section 16A(2) of the Crimes Act, does it not?
MR SEXTON: Your Honour, one thing the Court of Criminal Appeal was at pains to say in its judgment was that it had taken into account the factors in section 16A and that they were always to be taken into account.
GAUDRON J: Yes, that is not the question. The question is: how does it relate to 16A?
HAYNE J: In a case where the accused was said not to be a mere courier too.
GAUDRON J: And in a case where, presumably, Karacic had no opportunity to put submissions about the guidelines, he not having been the appellant or respondent in that case.
MR SEXTON: That is certainly so, your Honour.
KIRBY J: I suppose you would have to say that the theory is the guideline is simply a provisional standard and he has a full opportunity to make submissions to the Court of Criminal Appeal on re‑sentencing or to a primary judge on sentencing that because of peculiar circumstances of his case that the prima facie standard does not apply.
MR SEXTON: One sees every day, your Honour, in judgments of the Court of Criminal Appeal, at least in New South Wales in relation to Crown appeals, which, as Justice Gaudron pointed out yesterday, are more common than they used to be, statements by the court that, although the sentence of the trial judge appeared to depart from what was the usual range of sentences in this area, that is, by being lower, that there were special circumstances in the context of the particular case why that was appropriate, and many Crown appeals are rejected on that very basis.
GAUDRON J: Can you stand up in court and say the guideline is wrong, not whether or not it should be applied, whether or not regard should be had to it? Can you stand up – can Mr Karacic stand up and say “That guideline was wrong, I have brought along my own statisticians and forensic experts and that guideline was wrong”?
KIRBY J: There would be nothing to stop him doing that and reserving the point to the point of Court of Criminal Appeal, would there?
MR SEXTON: Certainly that submission can be made to the Court of Criminal Appeal. The problem of making that submission in, for example, the District Court is that the guidelines, if that is what they are to be called, are as points ‑ ‑ ‑
GAUDRON J: That is what they call themselves, do they not?
MR SEXTON: ‑ ‑ ‑ they do – as points of reference are binding on, for example, District Court judges in the sense that if they decline to observe them, the Court of Criminal Appeal is able to correct that situation on appeal. But that is an implicit part of the judicial hierarchy. It could only work in that way.
GLEESON CJ: But whether it was right or wrong and whether it is consistent with the legislation or not, there is no doubt what the Court of Criminal Appeal was setting out to do. It was setting out to follow English practice, self-consciously. The reason was given, as I understand it, in Jurisic where they said – perhaps by way of implicit criticism of what had been done or not done in the past. For years and years general statements have been made about sentencing levels and have been buried in the law reports. We have to get some system by which sentencing judges can have ready reference to these hitherto lost indications, but there are degrees of specificity and there is also a question of occasion. Has there ever been a case in England where a guideline judgment has been given in a case to which it did not apply?
MR SEXTON: I cannot answer that question, your Honour, but I have already said that in this case it is not ‑ ‑ ‑
HAYNE J: Commonly they are given in Attorney‑General references, are they not?
MR SEXTON: They are, your Honour, I think that is so and, of course, there is scope under the ‑ ‑ ‑
GUMMOW J: That is a special statutory jurisdiction.
MR SEXTON: ‑ ‑ ‑ there is scope under the New South Wales legislation to have, as it were, a completely abstract guideline case but ‑ ‑ ‑
GLEESON CJ: But except where there is legislative backing for it, although opinions amongst judges may differ on this, I think the orthodox view is that carpe diem is not a principle relating to the exercise of judicial power.
MR SEXTON: I have already made the submission, your Honour, that the offences were before the court. It would, of course, be a bizarre thing to give a guideline judgment about armed robbery sentencing principles in a drink driving case. That would, of course, be out of the question, but this was a case where the offences were before the court and there is an obvious connection, in our submission. For the court, when it has the very offences under the statute provision before it, to give those indications or guidelines, in our submission, that is an exercise consistent with Commonwealth judicial power which is what it needs to be here.
One perhaps final point, your Honours – it may have been implicit in some of the dialogue yesterday - that there could be other ways of approaching the problem of sentencing that the Chief Justice has just referred to in New South Wales and other jurisdictions that it could be done in other ways and some persons would say, no doubt, better ways. In our submission, that is not the question before this Court. The question is whether what has been done is consistent with the exercise of federal judicial power and that is the point on which we make these submissions.
Perhaps, in conclusion, your Honours, if I could refer to Mellifont in that connection. We set out the relevant passage in our written submissions and I will just perhaps refer to it because it is short where Chief Justice Mason and Justices Deane, Dawson, Gaudron and McHugh said in that case at 305.
True it is that the purpose of seeking and obtaining a review of the trial judge’s ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. However, in our view, in the context of the criminal law, that does not stamp the procedure…as something which is academic or hypothetical so as to deny that it is an exercise of judicial power.
GUMMOW J: Well, Mellifont is about section 73 of the Constitution, is it not?
MR SEXTON: Yes, your Honour, but in our submission, the concept that is discussed in Mellifont is relevant to this particular case and it underlines,
in our submission, that this exercise here was quite consistent with federal judicial power.
GUMMOW J: But Mellifont is all about a statutory procedure in Queensland and whether that produced a judgment, decree, order or sentence and the Court said it did. That is not what is involved here, is it?
MR SEXTON: No, it is a different exercise.
GUMMOW J: There is no statutory procedure here.
MR SEXTON: Yes, I appreciate that, your Honour, but we say that ‑ ‑ ‑
GUMMOW J: There is a statutory procedure, namely, section 5D of the Criminal Appeal Act as picked up by the Judiciary Act but the question is, did that have tacked on to it this other exercise?
MR SEXTON: Well, as your Honour puts it, if it was inconsistent with the exercise of federal judicial power it would not be picked up, so, in a sense, we – obviously, it is our submission that it is picked up and that it is consistent.
CALLINAN J: Far be it for me to mention a practical matter but it may be a much more attractive measure than its possible alternative which might be mandatory sentencing imposed by legislatures.
MR SEXTON: Well, I have not gone into the policy matters. The Chief Justice has raised the practical problem of sentencing on a day‑to‑day basis and guidance for trial judges, and, in our submission, that is a very important aspect of these proceedings.
KIRBY J: That assumes that widespread mandatory sentencing does not itself run into problems of a constitutional character.
MR SEXTON: That is so, your Honour.
KIRBY J: That is a matter that this Court has not passed on.
MR SEXTON: Questions of sentencing do raise the questions, of course, that are before the Court at the moment. Unless there is anything else, your Honours, those are our submissions.
GLEESON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Basten.
MR BASTEN: Your Honours, firstly in relation to a matter that the learned Solicitor for New South Wales raised, there is a case referred to in Karacic called R v Thomson and R v Houlton (2000) 49 NSWLR 383, which, as I understand it, may be the judgment in relation to the discounting exercise to which my friend referred. I was going to mention it in any event, because it discusses that matter which your Honour the Chief Justice raised, namely, the fate of Gallagher’s Case since it was delivered some decade or so ago. It also deals indirectly with the matter that your Honour Justice Hayne adverted to yesterday, about two‑tiered sentencing, at paragraph 60 and following.
Your Honours, secondly, in relation to the question about whether there is an international exercise of providing guideline judgments, which may be perceived to be occurring in English-speaking jurisdictions, may we say that there is a distinction to be drawn between the sort of guidance given by Ferrer-Esis, in the New South Wales Court of Criminal Appeal, particularly at pages 236 to 237, in the course of the Crown appeal, and what was said along similar lines in Cadd’s Case (1997) 69 SASR 150, at page 165 to 166.
I do not take your Honours to read it, but it was an extract from the judgment of Justice Cox in King’s Case to which the learned Solicitor passed over in making reference to those pages, and which demonstrates, perhaps, the distinction between what is done elsewhere and what was done here. And in particular, in relation to Canada, might I emphasise the point that the division of the Supreme Court in McDonnell’s Case was as to whether it was appropriate to categorise by severity of offence into what were, in effect, separate judicial offences for the purpose of creating an appropriate guideline.
Returning to the present case, it is conceded by both, I think, Mr Hastings and the Commonwealth Solicitor, that what happened at page 118 of the appeal book, paragraph 84 of the judgment of the Chief Justice, was that there was, in effect, the creation of three separate ranges in relation to one offence relating to trafficable quantity, and that there had been a narrowing of the sentences appropriate in relation to those ranges. There is also the concession in the judgment, at page 119, that if one goes beyond New South Wales, the effect is an even greater narrowing.
The narrowing is significant in three ways, which is suggestive of error, in our submission, in the whole exercise. Firstly, the narrower the range the greater the restriction on the individual exercise of discretion and the greater the consequences in relation to the proper operation of the criteria in section 16A(2). Secondly, the narrower the range the less the likelihood that the cases covered actually reflect actual practice properly undertaken by reference to section 16A, because one starts with the exclusion of what may be legitimate exercises of discretion at the outer limits of the range.
Thirdly, the exercise by the Court of Criminal Appeal in excluding decisions outside New South Wales will diminish rather than promote the consistency across the relevant law area which is identified as a relevant factor in formulating judgments in this area.
KIRBY J: Is that quite right, because at least in the other jurisdictions Marlborough will oblige the other courts to look at what has been said in New South Wales, and that is what is happening. So, at least the courts are addressing the issue and in the theory of our Constitution ultimately the matter could possibly in a particular case come to this Court for resolution.
MR BASTEN: But taking it back a stage, your Honour, what is being done here is arguably a breach of Marlborough by the New South Wales Court of Criminal Appeal because it is narrowing a range without regard to the decisions elsewhere, but I accept that once that is done perhaps Marlborough may apply, although the Victorian Court of Appeal has had difficulties for just that reason.
GAUDRON J: What is the reference to Marlborough, Mr Basten?
MR BASTEN: I think it is on our list of authorities. The limited resources of Legal Aid leave me with less assistance than I need. It is 177 CLR 485 at 492. I am indebted to the Solicitor for South Australia. It is referred to in his submissions at paragraph 13.2.
Might I turn to the relevance of these matters to the Director’s appeals in the present case. The purpose articulated for promulgating a prescriptive and quantitative guideline was to bring consistency and transparency to the criminal justice system. There is an irony in this. Those goals are not advanced, in our submission, by upholding these appeals where the satisfaction of the strict tests as enunciated by the majority in Everett are left to inference, and the closest one comes to reasoning in support of the requisite clear conclusion is the tentative expression of opinion at the top of page 147 as to what might be the cause if the ultimate sentence is manifestly inadequate.
That hypothesis, however, rightly or wrongly, invites primary attention to those cases which are identified in Schedule 3 at page 162 of volume 1. Those cases were the subject of express and detailed submissions before the court. With the exception of Spiteri to which I referred earlier, they were not addressed in the Court of Criminal Appeal. Even allowing for the exclusion of the lowest case, the sentences imposed by the trial judge are within the range of 9-18 years and the non‑parole period within the range of 6-13½ years. Your Honours, it may be that the finding of the Chief Justice that there was not discernible pattern is correct, but that demonstrates, we would say, the difficulty in establishing that this is a case in which a firm conclusion of manifest inadequacy can be identified. Your Honours, for some further detail of those cases, the summaries at pages 299 to 301 in volume 2 of the appeal book provide some significant information, including, one might note, that in some of the cases emphasis was almost undoubtedly placed on the finding in the accused’s presence of loaded automatic pistols. There are, indeed, a range of considerations which may make the discernment of a particular pattern difficult.
May I take the matter one stage further. At page 163 major importations are listed above 10 kilograms. The range as identified by the Chief Justice at the bottom of the page is 12-24 years for the head sentence and 7-18 for the non-parole period. No doubt the 12 and the 7 are at the bottom end of the range, as one would expect. They are the sentences which were imposed by the trial judge in the present case.
If one then goes to the statistics which are at page 168, one finds that those who receive 12 years or less in relation to commercial quantities of heroin constitute 66 per cent of all those sentenced to imprisonment, while those who receive greater sentences, 33 per cent. In other words, and in answer to the point that was raised in part by your Honour Justice Callinan in argument with my friends, if one pursues the question of manifest inadequacy not simply through the judgment but through the material which was available to the Court of Criminal Appeal, with respect, the case is not established. Therefore, in its own terms one would expect some reasoning by which the court achieved the firm conclusion that this was one of the rare and exceptional cases in which intervention was justified.
Finally, your Honours, if we are correct in our submissions, may I simply note that there are alternative orders sought in relation to the Crown appeals at page 175. Given that these appellants are now 3½ years into their non‑parole periods, expect to be deported at the end of those periods, have already had their sentences considered on two occasions, if the Court was minded to accept our submissions, the appropriate order would be that at 3.1. It would not be an appropriate case for the Director to seek again to pursue a Crown appeal which has been fully and properly argued on one occasion already.
KIRBY J: But why would we intervene in that? I can only think of one case, I think in Veen, where the Court took its own step. Normally that is a matter left to the Executive Government.
MR BASTEN: It is a question as to whether, having received sentences of 12 years with minimum terms of 7 ‑ ‑ ‑
KIRBY J: But your primary argument is that the process miscarried.
MR BASTEN: Yes.
KIRBY J: It is a Lowndes case and, therefore, if it miscarried, the correct order of this Court is, is it not, that the process should take its proper course?
MR BASTEN: We put it in the alternative. I am putting a submission as to why the primary basis upon which we seek intervention is the first order ‑ ‑ ‑
GLEESON CJ: But there is another problem, is there not? Was there not a great issue that erupted as to the way in which sentencing judges should take account of policy of the Executive Government in relation to likely deportation of criminals at the end of their terms?
MR BASTEN: Yes, but not in this case, your Honour.
GLEESON CJ: Not in this case, but that itself was an issue on which the Court of Criminal Appeal had to rule at one stage, because of differences between trial judges as to how you took account of that matter.
MR BASTEN: Yes. This was simply a matter, your Honour, in which it would have been known to the trial judge that people who are liable to deportation are likely to suffer a more severe level of imprisonment in the later stages of their sentence. It is relevant to that level only, we would say, in this case.
Might I say one other thing, and I cannot find it in the materials because there was a third co‑offender, Law, who was dealt with by the Chief Judge in the District Court who, on the basis of his extensive experience, said that the appropriate range for middlemen involved in commercial quantities of this sort was 12 to 16 years. He did not apply that range to Law, but there is simply no material pointed to by the Director in this case which would suggest what the basis was upon which the court concluded that it was appropriate to uphold the appeal.
On either view, your Honours, if the matter is to be remitted or otherwise, we would simply repeat what I said earlier, that there are reasons why one might not invite the Court of Criminal Appeal to repeat the exercise in this case. If the Court please.
GLEESON CJ: Thank you, Mr Basten. We will reserve our decision in this matter and we will adjourn.
AT 11.19 AM THE MATTER WAS ADJOURNED
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