Zoneff v The Queen

[1988] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A44 of 1987

B e t w e e n -

IVAN ZONEFF

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

WILSON J

BRENNAN J
DEANE J
DAWSON J

TOOHEY J

Zoneff

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 22 AUGUST 1988, AT 2.16 AM

Copyright in the High Court of Australia

Al T 2/ 1/ SH 1 22/8/88

MR K.V. BORICK: If the Court pleases, I appear with my

learned friend, MR A.S. CLARE, for the applicant.

(instructed by Lambert Solomon & Dorman)

MS C.M. BRANSON:  May it please the Court, I appear for the

respondent. (instructed by the Crown Solicitor for

South Australia).

WILSON J:  Mr Borick.

MR BORICK: This is an application for special leave to appeal

against a sentence of the Court of Criminal Appeal of

South Australia. I hand up my outline of argument.

WILSON J: Yes.

MR BORICK:  Your Honou:rs, the applicant was convicted of 27 counts

which were, basically, fraud and matters of that type.

There were three informations and there were another

28 or so offences which he asked the court to take

into account.

The sentencing judge, Justice White, said in the

course of giving his reasons for sentence that he

thought an appropriate penalty was 18 years, overall,

for all of the offences including those taken into
account but then reduced that to 14 years specifically

allowing four years for all mitigating factors.

It so transpired then in fixing the sentences

for each information that His Honour exceeded the statutory limit in a number of the sentences. In

fact, nine in all of the 27 that were charged exceeded

the statutory maximum; eight were imposed on an erroneous

view that the maximum term of imprisonment was life

imprisonment where, in fact, it was 14 years and two

were fixed at the maximum for the matters alleged in

those counts and, in our submission, and, I think,

accepted by the Crown and by the Full Court,was that

in effect, the sentences imposed by Justice White

were a nullity and if I just take Your Honours to	the second page of the judgment of Justice Matheson
in our Court of Criminal Appeal at page 43 of the
transcript.

WILSON J:	We have the judgment of Mr Justice Matheson in twice,
I think, have we?
MR BORICK:	Yes, it is, yes. Apparently it was included in

an affidavit. R>r that reason it got into the transcript

twice but if I could take Your Honours to page 43.

On that page, the Court of Criminal Appeal referred

to the matters that I have just mentioned and, at
the bottom of the page, in the last paragraph,

indicated that:

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Mr Brebner, counsel for the

Attorney-General, properly conceded

that the appeal must be allowed, and -

they then said -

that this Court must fix the penalties

afresh.

What happened at that point was that

Justice Matheson referred to what he described as

a painstaking summary of the history of the matter

or history of the appellant's wrongdoing and he said

that he proposed to quote extensively from it, which

he then did, 'bmitting only several disputed matters".

His Honour then in the course of the next three

pages did quote extensively from a - - -

WILSON J:  Does that mean he gave the benefit of the doubt to

your client - - -

MR BORICK:	No.
WILSON J:	- - - by disregarding those matters?

MR BORICK:  No. What it meant was that they were disregarded

because, in our submission, those matters which were

disregarded were mitigating factors but you will see

when you look through His Honour's remarks that

dots appear from time to time and they are the

areas where the matters which were in dispute were

omitted from Mr Justice Matheson's quotation from

His Honour Justice White's sentencing remarks.

Having finished that exercise, His Honour

Justice Matheson, at the bottom of page 46, then indicated that:

The learned trial Judge pointed out that

the net loss

was in the order of -

$375,000 -

and then referred to the fact that:

The appellant had no previous convictions.

He quoted from him again at page 47, indicated there was no prospect of restitution and on the middle

paragraph at about line 30 on page 47, the Full Court,

in effect, dealt with some of the mitigating factors.

They referred to his plea of guilty, that he was

genuinely remorseful:

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That he is entitled to be given "credit for

[his] co-operation with the police", thereby

saving "the State huge sums of money which

would have spent in proving [his] guilt -

otherwise and referred briefly to:

"The threats from angry creditors - "

The background to that was that while the applicant was on bail he had borrowed money from people who

charged him very, very high rates of interest in

the range of 40 to 50 per cent. These people wanted

their money back and instead of going about it in any

proper way, they used violence and it was the

applicant's case in mitigation that that, in fact,

was what caused him to continue with his course of

criminal conduct while he was on bail. In other

words, he was under intense pressure of the sort I

have just mentioned and the fact that he was under

that sort of intense pressure and under threat of

violence was not disputed by the C~own.

So, to this point in the judgment there has

been no reference by the Court of Criminal Appeal

at all to any of its own views. It has simply been

reference to some of the mitigating factors and then,	a very long quote from the judgment, further brief
at line 50, His Honour Justice Matheson says this:

Taking one thing with another, and even

taking into account the other 28 offences, I think the sentences imposed were too severe.

And I underline the expression "too severe" and I

underline that in particular because it indicates that

His Honour was taking Justice White's sentence as a

starting point, rather than ignoring it, as he should

have if our submission is correct that, in effect, the

sentence imposed by Justice White was a nullity. It

gets further support, that submission, in that

His Honour then said:

I would substitute a total sentence of 10

years' imprisonment with hard labour.

And the expression "substitute" was, in effect,

adopted by Justice Moore in his very brief judgment.

He said he agreed with the reasons of Justice Matheson

and the Chief Justice said that the sentence should

be reduced to imprisonment for 10 years and it is

the word "reduced" which I draw the Court's attention

to. So that there is, in my submission, a strong

indication that the court did, in fact, take this

sentence which did exceed the statutory limit as

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their base starting point and then, just to

continue an outline of the judgment in argument,

His Honour Justice Matheson then proceeded to fix sentences which came to a total of 10 years and, finally, he turned to the question of the

non-parole period - - -

WILSON J:  When you consider the number of offences, 18 years

is not out of all proportion, is it, Mr Borick? I

appreciate what you have said that a nunDer of them were,

in fact, higher than the statutory maximum, but

your client was fairly leniently dealt with in

one sense, apart from the totality question, in

the number of sentences that were concurrent, even

though they were not arising out of the same

circumstances and, therefore, there could have been

no complaint had shorter sentences been imposed on

each cumulatively. Six month sentence on each
cumulatively would have added up, apart from the

life imprisonment ones, the forgery of the cheques,

to a substantial term, would it not?

MR BORICK:  My submission in relation to that - there was a

submission made to the Court of Criminal Appeal in

argument on the hearing of the appeal - was that if

you looked at the sentence of 18 years as against

other sentences where people had·been engaged

in long term criminal offending, by long term I

mean over two or three years, a typical embezzlement

type situation, and fraud of that type, that this

sentence was far in excess of any other sentence

that had been imposed by the - - -

WILSON J:  Yes. I have reserved the totality question. I

appreciate that that is still a yardstick to be

applied but with 31 offences, I think, were in these -

31 counts in these indictments, were there not?

MR BORICK:  Twenty-seven in the indictments. Perhaps I should

explain how that occurs. On the second information

there was only a conviction recorded on two of the

counts, the first and the fifth.

WILSON J:	Oh, I see.
MR BORICK:	And the rest were withdrawn.
WILSON J:	So there were convictions on 27 counts - - -

MR BORICK: Twenty-seven.

WILSON J:	- - - ranging in maxima from seven years to life.
MR BORICK:	Four years to life.

WILSON J: Four years to life, yes.

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:MR BORICK:	The false pretences were, I think, the - - -
WILSON J:	The lower -

:MR BORICK: In fact, I have a schedule I can give to the

Court in a munute, of the various sentences.

WILSON J: Yes.

:MR BORICK:  But, in direct answer to Your Honour's question,

we did present an argument that the sentence of

18 years, as an overall sentence, was far too large
and that sentence was based upon an argument that

it moved far away from any other comparable type

crime in South Australia but it had a secondary

leg to that argument, that if you used 18 years a
a yardstick for this with a 27 or 28-year-old man,
first offender, and then moved to a person who had

had a previous conviction, you would be looking at

something like a 25-year starting, and then if you

are allowed to take into account remissions, you

would be looking at a 30-year starting.point. Now,

that would be far, far in excess of not only crimes

of the sort that Zoneff was convicted of but of

armed robbers, for example, who - and in around about

the same session of people, serious conviction for

armed robbery, getting in the order of 12 to 14 years,

as a head sentence.

WILSON J: Yes, I was not - - -

:MR BORICK:  So, it was, with respect, a substantial argument

and, at the very least, it was one that the Full Court,

in our submission, should have considered.

WILSON J: Well, Mr Borick, I was not suggesting that it was

not a substantial argument but it does seem that

the Full Court recognized the submission that you put and that their talk of 'substitution" and "too severe" was a recognition of your submission. That

is what prompted my intervention, your criticism

of the word "substitution".

:MR BORICK:  May I make just one more broad submission in relation

to what I think is the same topic. If

Justice White had sentenced according to law, that is,

according to the statutory limits, instead of starting

at 18 years, he would have started, perhaps, in the

order of 14 or thereabouts. If he had adopted the

same sentencing process reducing it by somewhere

between 20 to 25 per cent, he would have been back,

in his sentence, at about the 10-year mark.

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MR BORICK (continuing): That, then, would have been a

going to take into account sentence upon	starting point for the Full Court if they were instead of the 18 and 14 which, in my submission,
is what they did. In other words, it can be
clearly seen that Justice White, if he had been
aware of the lesser statutory maximum, would
have, in my submission, started at a lower point
and that the Court of Criminal Appeal were in
error

WILSON J: What do you say is the special leave point?

MR BORICK:  The special leave point is this, that the

Court of Criminal Appeal, in deciding that it

had to sentence afresh, had to assess all of
the facts, circumstances, the mitigating matters,
the other matters which related to the seriousness

of the crimes themselves and. - - -

WILSON J:	They did, did they not?
MR BORICK:	- - - that they failed to do because-they did not refer to any of the mitigating factors
at all but I have one in particular that I would
point to the Court which is of special significance and that is the fact that it was accepted by
the Crown that of the 27 counts charged 13 would not have been discovered by the police unless the applicant had confessed and of the matters
taken into account a similar number. So that,
in broad terms, more than half of the matters which Zoneff pleaded guilty to would not and could not have been discovered by the prosecution.
So that he was entitled, in our submission, to
be sentenced according to the principle in ELLIS's case which was the fact that a confession of that sort, where the crime would not have
been discovered otherwise, is a matter of special significance because the disclosure of otherwise
unknown guilt merits a sigrificant added element
of leniency.

So the special leave point is that a principle

and an important principle of sentencing was,

first of all, not properly considered by Justice

White but if the Court of Criminal Appeal were

adopting Justice White's remarks, then they themselves

did not consider the appellant's argument that

Justice White had not put proper weight on that

issue or, alternatively, if the Court of Criminal
Appeal did, in fact, sentence afresh as they
said they were going to, then they did not refer

to it at all.

DAWSON J:  But it was not a ground of appeal from

Justice White, was it?

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MR BORICK:	Yes, it was a ground of appeal from Justice White.
DAWSON J:	Can you direct me to it?
MR BORICK:	At page 36 of the transcript, the reference:

That the Learned Sentencing Judge erred as

to the facts in stating that "most of your crimes were likely eventually to have been

detected and successfully prosecuted without

any assistance from you".

DAWSON J:	Then he rejected the submission.
MR BORICK:	That was, in effect, what His Honour had said

and we raise that as a ground of appear and then

in outline of argument handed up - and I have

copies of those for the Court if the Court wishes
to refer to them - ELLIS's case was specifically

referred to and the Court of Criminal Appeal

were invited to consider, firstly, His Honour

Justice White's assessment of whether or not

his crimes were, in fact, not likely to be
discovered without confession and, secondly,
if they had accepted that proposition that over
half of them would not have been discovered,

then they had to apply the principle referred

to in ELLIS's case.

And it is the failure of the Court of Criminal

Appeal to deal specifically with that ground

wh i ch 1 eave s the a pp 1 i c ant be fore th i s Co u r t w i th

a justifiable sense of grievance in that he,

in a sense, as he saw it, did the right thing

by putting forward all these matters which would

not have bgeen discovered but yet has not even
had that fact mentioned and it may even be that

the court has not taken it into consideration

at all.

DAWSON J: If you look at page 47, it was dealt with, perhaps

fairly shortly, he:  pleaded guilty. He is now genuinely

remorseful. I also agree with his Honour

that he is entitled to be given "credit

for (his) great co-operation with the police"

MR BORICK:  No, they are very fundamentally different things

as is pointed out in ELLIS's case itself.

Co-operation with the police and a plea of guilty

are to be sharply distinuished from a confession

to a crime which would not have been discovered

otherwise. May I take the Court to ELLIS's case.

DAWSON J:  But that plea was obviously rejected by the

trial judge.

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MR BORICK:  I am sorry, Your Honour?

DAWSON J: That last point was obviously rejected by the

trial judge.

MR BORICK:  That was the point that we wished to have

argued before the Court of Criminal Appeal so

that when they came to impose their sentence,

if they selected Mr Justice White's assessment

of the facts, then they never considered our

argument and the sentencing process has miscarried.

Alternatively, if they sentence for themselves afresh, they quite obviously did not consider

it and, either way, the applicant before this

Court suffers from a sense of grievance that

his telling of the police almost half of the
matters to which he pleaded guilty, which would
never have been discovered otherwise, has been

given no credit for them.

DAWSON J:  The argument was put before the Court of Criminal

Appeal, was it not?

MR BORICK:  Before the appellate court, yes, but ·they have

never considered it.

DAWSON J:	They heard what was being said, did they not?
MR BORICK:	And they had it in writing.

DAWSON J:  Yes. Now, what you are saying is because they

did not specifically sit down and reject it in

their judgment, there is a special leave point?

MR BORICK:	Yes.
DAWSON J:	I see.
WILSON J:	Even though they do say, 'Mr Borick pointed out' -

I mean, they do mention the submission in this

very same paragraph:

However, Mr Borick pointed out ..... there

was a lot to be said in mitigation of penalty.

But, again, you would say that fails to mark the particular point.

MR BORICK:  Yes, and it is highlighted by one other fact.

May I take the Court to page 48. When they came

to deal with the question of the non-parole period

which was dealt with very, very briefly, at

line 41, His Honour Justice Matheson said:

Turning to the question of the non-

parole period, the learned trial Judge said:

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"There would be public outrage, especially

outrage amongst your many victims, if you

were released too early. The protection

of the community and the public register

require a strong deterrent. You and others

like you who commit many crimes over a long

period must realise that you cannot, by

subsequent remorse or sorrow, purchase an

early release."

To use their term "purchase an early release",

it is not being purchased by remorse or sorrow

or a plea of guilty or co-operation with the
police, it was, to use that term, in a sense
being purchased by a voluntary confession of
crimes which would not otherwise have been

discovered and if-it does appear, and my submission

is that it is clear that the Court of Criminal

Appeal did not consider that matter, then an

inference should be drawn, according to the principles

of DENNIS WILLCOX PTY LTD V FEDERAL COMMISSIONER

OF TAXATION and SUN ALLIANCE INSURANCE CO V MASSOUD

that there should be an inference that the matters

were, in fact, overlooked, particularly.because

of their importance.

DEANE J:	Did you say that the Crown did not dispute that
most of these offences which he disclosed would
not have been discovered?

MR BORICK:	Yes.
DEANE J:	Where does that appear?
MR BORICK:	In the Crown's outline of argument they simply,

in answer to the proposition that ELLIS's case

should be taken into account because he had confessed

to so many, simply said, "Well, he has admitted

14 out of the 27 would have been discovered."

So there can be no doubt that - if we just take

for present purposes, the 27 counts that were

come to the light of day if he had not told about	laid, 13 - that is over half - would not have
them.

DEANE J:  I am sorry, my maths have fallen behind yours.
How many charges were there?

MR BORICK: 1'.ven:l:y-seven, on the three indictmants. Fourteen, the

applicant conceded could have "heen found out about.

Thirteen, they could not have been found out about.

DEANE J:	Then it is slightly less than half, not slightly
more, unless figures have changed.
MR BORICK:	I think then if you look at all the - take

into considerations, it comes to more than half.

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DEANE J:	And were any of the offences which would not
have been discovered included in a cumulative operation? In other words, if you look at the
offences which would have been discovered, crossing
out all those that would not have been discovered,
what would have been the resulting sentence,
disregarding those that are sentenced on a concurrent
basis?

MR BORICK: I would have thought that the - for the first

proposition, the sentence would have been greatly

reduced because one of the factors which influenced
both the sentencing judge and the Full Court

were the number of offences, it got up to 58 -

DEANE J:  My question was not directed to that. What I

was asking you was: if you struck out the ones

that would not have been discovered, would any

obvious reduction in sentence result in the sense

that they were entirely cumulative? In other

words, were any of the groups composed completely
of crimes that would not have otherwise been

discovered?

MR BORICK:  No, I do not think so, Your Honour, I think

they are mixed up throughout the various informations

and the take into considerations. This was,

looked at overall, a very tangled web because

of the way in which His Honour operated and there

was a great deal of untangling to be done besides
bringing into account these other matters but

a short answer to the question, Your Honour,

they spread themselves throughout the three

informations and the take into considerations.

The other matter from a point of view of

a special leave application to the Court is that

if, in fact, the submission is justified and

this Court can see that the applicant is left with

a sense of grievance that the fact that he has

confessed has not been properly taken into

consideration, then if special leave is refused

because the Court of Criminal Appeal ..... .
sentencing, themselves, afresh, he, in effect,

is left with no right of appeal.

If Justice White had sentenced according to law in the first place he would then have

had his appeal and the matter would have been

before this Court in a different light. Because of the well-known policy of this Court to rarely

interfere in sentencing matters, in effect, not

only was it a sentence at first instance but one to which, unless special leave is given,

he is denied what is his normal right and, in

my submission, that is a powerful factor that
this Court should take into account in deciding

whether or not to grant him special leave to appeal.

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Also, as a practical consequence of this

whole judgment, it would hardly be regarded as

an assistance to the concept that people should

be called upon to confess their crime and then

if they do they get some real and tangible

benefit for it. In other words, it is contrary

to the sentencing principle expressed in ELLIS's case. Your Honours, those are the reasons which I advance in support of the application for special

leave to appeal in this matter. May I just say

this: if in fact the Court were disposed to

consider granting special leave to appeal and

were deciding what to do, the matter ought not

to go back to the Court of Criminal Appeal that

made	this decision but to a differently constituted
court.

I could, of course, develop that submission

if it became necessary but those are my submissions

as to why this Court should grant special leave
to appeal in the special circumstances of this

case which, because of the matters I have mentioned,

come within either the general principl~s of

importance which are involved or, alternatively, the administration of justice has failed in this

case.

WILSON J:  The Court will retire fora moment to consider.

AT 2.46 PM SHORT ADJOURNMENT

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UPON RESUMING AT 2.53 PM:

WILSON J:  The Court would like to hear you, Ms Branson, please.

MS BRANSON:  May it please the Court. The first matter I wanted

to raise relates from the submission of Mr Borick

about the Crown's concession with respect to offences

that may not have.been discovered. My understanding is

not exactly in accordance with my learned friend's.

The Crown asserted, rather than conceded, that 14 would have been discovered in any event. The Crown conceded that the bail offences probably would have been difficult to discover without the co-operation

of the appellant, but as to the others, the Crown

made no concession.

WILSON J:	How many of the bail offences were there?
MS BRANSON:	I am not exactly sure how many there would have

been on that, if Your Honour pleases, but the total

information came to 16 counts that were bail offences.
If the Court pleases, the submission of·the Crown is

that the approach of the Court to necessary findings

of fact will vary between a trial on which evidence

is called on oath when the issues are in dispute -

DEANE J : Ms Branson, I am sorry, you have left me quite

confused as to which offences were discovered, which

offences do you now concede would not have been

discovered and which offences fall in between.

MS BRANSON: If Your Honour pleases, I apologise for that,

but I think it is partly because the circumstances

are somewhat confused. The Crown did assert that 14

of the total 27 were discovered without the

co-operation of the appellant.

DAWSON J:	Would have?
MS BRANSON: Either would have been or were.

DEANE J; Were or would have been, yes.

MS BRANSON:  I think it was close to were, I think. The

Crown accepted that the bail offences would have

been difficult, or, at least, many of them would have
been difficult without the co-operation of the appellant

and, as I understand it, the information that has been
described as a third information, was the bail

offences information. 'That has 16 counts on it.

DEANE J:	I see.
DAWSON J:	And I am now confused because there are 27

counts in all?

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MS BRANSON:  There are 27 in all.

DAWSON J: That adds up to 30.

MS BRANSON:	If :~Your Honour pleases, there were nine counts on what has been described as the first information,
which is the information dated June 1986, which dealt
with offences in May of 1985. The second information
was the information on which some of the charges
were not proceeded with.

DEANE J: Well, can we stay with the first Of the nine, they

would have all been discovered?

MS BRANSON:  There is no concession that they would not have

been discovered.

DEANE J:  Yes. So they are in the ones that, according to

the Crown, would all have been discovered or were

discovered?

MS BRANSON:  I am trying to be fair to my friend, if the

Court pleases.	There are certain things the Crown is
able to concede;	certain things it is just not

able to concede; certain things it asserts. It

asserts that 14 were discoverable without any

co-operation. It concedes it would have been in

difficulty on the bail offences.

BRENNAN J: All of them, or 13 of the 16?

MS BRANSON: Well, there were 16. I am not sure where this

figure of 13 comes from.	The 13 obviously is the
14 taken off the 27.	The submissions put to the

Court just are not sufficiently precise for me to to be able to say more precisely what was put to the CCA.

BRENNAN J:  Do we have a transcript of the proceedings either

before the trial judge or before the Court of

Criminal Appeal in which these so-called concessions

were made?

MS BRANSON:  I have access to that and I have read it while

the Court was out, and that is why I feel able to

make these submissions. It is not normally made
available, but I can say that I do have a one copy

of it. I can make it available to the Court, if the

Court pleases.

BRENNAN J:  Was that before the trial judge or before the

Court of Criminal Appeal?

MS BRANSON:  Before the Court of Criminal Appeal. Before,

the Court of CriminaL Appeal was the transcript

before the sentencing judge - that was before the

Court of Criminal Appeal.

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BRENNAN J:  But this question of concessions was dealt with

expressly in the submissions to the Court of

Criminal Appeal?

MS BRANSON: That is so, sir.

BRENNAN J:	I see.
MS BRANSON:	The outlines of submission of the Crown

my friend was going to hand up - I do not know if

he has or not.

MR BORICK:  I still can do that, if the Court is prepared to

accept them, yes.

WILSON J: Yes. If it is a short passage it would be sufficient

for you to read it, Mr Barick, and then we can all

hear it at once.

MR BORICK:  I have read the grounds of appeal, and then in

relation to what I will call ground 15 of the

grounds of appeal in the. supplementary books that

have been handed up at page 10, there were a number

of matters which the appellant said wou~d have been

detected which amounted to 14 in all.

BRENNAN J:  Could we have it read, Mr Barick?

MR BORICK: Well, those that would have been detected:

V. Popolizio,	one and two, April 1987
sessions -

and then Caruso; three charges only on the first .information; all

nine charges in respect to the second information, a

number ~e withdrawn. In relation to the third

information only two of them which related to

WITHAM and Haag.	Now the Crown argument in response
read:

It has been conceded that 14 out of the 27

charges laid would have been discovered
without assistance.	The learned sentencing

judge gave credit for !~great co-operation"

- transcript page 188.

So that was the outline of argument handed up by

the appellant and Crown's answer.

BP..ENNAN J: . But that is put on the basis that the defence is

conceding that 14 would have been discovered without

assistance. That is no concession by the Crown at

all.

MR BORICK:  But it was always put on that basis that that is

what he conceded, that 13 - - -

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BRENNAN J: You say it was alway! put. Could we see where it

was always put? We are concerned with the question

of whether the proceedings before the Court of

Criminal Appeal miscarried. We need to know what

was before the Court of Criminal Appeal in order

to see whether that assertion is right.

MR BORICK: Well, it was that 13 would not - of the counts laid -

would not have been discovered without his confession.

BRENNAN J:  I do not see that from what you have. thus far

read.

MS BRANSON:  If the Court pleases, I have in front of me the

transcript from the Court of Criminal Appeal.

Would it assist Your Honour if I read from that?

Mr Borick said:

It was accepted by the Crown that,

with regard to most of the bail offences,

they would not have come to light because

the people involved were not going to

complain about them anyway. There were

a number of people involved in lending

money who were charging high rates of

interest and using money they did not want

to disclose to authorities and they did

not complain, and the police had difficulty

in getting information out of them. The

only real source of information about most

of the crimes comes from the accused himself.

That is demonstrated by the fact that the

Crown agreed to him being released on bail over a large number of days so he could go out and assist the police and the

defence who prepared the information in

Book three.

The Chief Justice then said:

Most of the bail offences would not have been

discovered but for the information supplied.

And Mr Brebner, counsel for the Crown, said:

That is correct. By his co-operation, he

saved the State considerable time and expense.

If Your.Honour pleases, that was the point I was trying to make: there was an assertion by the Crown that 14

were discovered. The Crown conceded that the bail

offences would have been difficult, but there is no
concession that that adds up to all of the 13
not covered by the Crown assertion of prior

discovery.

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DEANE J: Well now, can I just ask you one final matter, and

that is, am I correct that he got an extra five

years' imprisonment for the bail offences?

MS BRANSON: Both the original sentencing judge and the - - -

DEANE J: No, I mean from the - am I correct that the

Court of Criminal Appeal effectively imposed an

extra five years' imprisonment by reason of the

bail offences?

MS BRANSON: Well, I think it can be fairly concluded that they

regarded the fact that they were committed on bail

as being aggravating and that is reflected in the

sentence that they imposed; the precise proportion,

I think, might be difficult.

DEANE J:	No, I was just trying to work out the effect.	As
I follow it, the effective sentence on the first
two informations was five years and it was five

years on the third information, which was the bail

offences. Is that right or wrong?

MS BRANSON: If I could perhaps run through the sentences,

as I understand them to be, as the Court of Criminal

Appeal imposed them. On the first information which,

as I say, is the one of J1ID.e 1986, they imposed two

years for false pretences and five years on the

forging and on the uttering charges. On the second

information, which was the information of August 1986,

two years on the count one and four years on the count two,

because that was a bail offence, so they clearly

regarded that second bail offence there as more

serious, but they were all concurrent with the

offences on the first information. Of course, none

of them was as long as the most severe penalty on

the first information.

On the third information, which was the one of

1\oril 1987, they imposed sentences of five years for

forging and for uttering; four years for false

pretences, and they pointed out that that was on bail;

two years on false pretences; two years for larceny and four years on the fraudulent conversion. So it does appear that there was a false pretences there

which they regarded as aggravated because of the bail,

but that only took it to four years, and there was

another sentence on that information which was as

high as that, which, as I read it, was not regarded

as aggravated by bail.

DEANE J:  Yes; I had understood you to say that the third

information concerned the bail offences.	I was wrong
about that, was I?

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MS BRANSON:  No, he did, sir. There is also just one that

happens to be on another information, fortuitiously,

was probably a bail offence.

BRENNAN J:  But it is right to say that the conversion case is

not one of those which concerned the usurious

lenders who did not want to come forward?

MS BRANSON: Sorry, sir, could I have it again?

BRENNAN J:  The conversion case, was that a case of selling

a car -

MS BRANSON:  Yes, I think it was.

BRENNAN J: - - which had nothing to do with the lenders who

were charging usurious rates, who did not want to

come forward?

MS BRANSON: I do not believe so, sir, no, and can I say that

the two highest penalties on the third information

were four years. One of those was not imposed for
an offence that was regarded as aggravated by reason

of being connnitted on bail, as I read Their Honours'

reasons.

DEANE J:	But there is one five-year imprisonment on the
third information.

MS BRANSON: For forging and uttering, yes, but that is an

offence for which the maximum penalty is life, as

I understand it. I do not understand Their Honours to be

·saying that .. they have increased that sentence by

reason of the bail circumstances. So that the

highest penalty on that third information is not one,

as I read it, which was regarded as aggravated by

the bail circumstanoes.

DEANE J:	But was it one that was connnitted while he was on bail? I mean, is it one of the ones that would not
have been discovered?
MS BRANSON: Well, because the Crown concession was so broad

on that, I do not think I could assert that the

Crown concession could not reach it - - -

DEANE J:  I see.

MS BRANSON: - - - although I think it is not abundantly clear

that it did. The Crown's concession was simply

that those bail offences would have been difficult,

as a class, to deal with, without the co-operation

of.the defendant.

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MS BRANSON (continuing): Perhaps if I could hand to the Court

the outline of submissions of the respondent. If

the Court pleases, could I hand to the Court a
copy of a case which, I apologize, is not on the

list of authorities but to which I wish to refer?

WILSON J:  Thank you. What use do you make of this?

MS BRANSON:  I wish to put to the Court that the approach

of the Court to issues of fact following a
contested hearing where there is evidence on

oath will be different as then approached to_the

approach taken for purposes of sentencing following

plea where there has not been evidence on oath from

both sides. The approach of South Australian courts

to the dealing with disputed evidence of fact on

sentence is the approach which is set out in the
case which I have handed to the Court, REG V MAITLAND,

(1963) SASR 332. If the Court pleases, I will read from page 334 of that judgment where the Full Court

considers the difficulties that arise where there
is not full evidence before the court. At the
top of page 334, the first full paragraph, the
judgment of the Court reads:

This application raises for consideration the course which should be adopted by a trial

Judge who is called upon to impose a sentence

in respect of a crime to which an accused person

has pleaded guilty, when the facts which

constitute or accompany the crime are in

dispute.

The Court points out that the plea does not go

to all matters other than those essential for conviction.

The Court goes on:

Where evidence has been given at a

preliminary hearing and the depositions are
before the trial Judge, he will not in

general act upon a version of the occurrence

which is contrary to the facts deposed to

unless sworn evidence is given.

And a quote from an earlier case. Then, further

down that same page:

When evidence is given at the preliminary

hearing by witnesses for the prosecution it

may be that the accused, while ready to admit

his guilt in terms of the :hformation, does
not admit that the evidence of the prosecution

witnesses is true.

If an accused person agrees that he is

guilty of conduct constituting the crime

charged, but does not admit the truth of the

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evidence given by prosecution witnesses as

to matters which do not affect the question
of his guilt, but are relevant only on the
question of penalty, his proper course is

to give and, where appropriate, call evidence

at the preliminary hearing, or failing that,

after notice to the prosecution, to seek

leave of the trial Judge to give or call

evidence when he comes before the Criminal
Court for sentence.

Just below the middle of page 335 the Court deals with the situation when a person is brought before a court on an ex officio indictment. Reading

from that paragraph:

In these cases there are no depositions; and the unsworn statements of the Crown witnesses stand on the same footing as those of the

accused. We take the view that this procedure

should be adopted only at the request of the
accused and where there is no substantial

dispute as to the facts. If in such a case

any dispute of substance emerges from the

statements, it is the duty of the trial Judge
to act upon the version of the facts which

within the bounds of reasonable possibility,

is most favourable to the accused. In any

case where the prosecution is not content that

the case should be dealt with in this manner,

it should not seek to have the matter disposed

of in the Criminal Court on facts stated only

in unsworn statements, but should· call evidence

at a preliminary hearing.

If the Court pleases, the material that was

before the two courts before whom this matter has already come was that as to information 1, it was

an ex officio information that depositions had been

tendered to a stipendiary magistrate and those depositions were placed before both the sentencing	judge and before the Court of Criminal Appeal.	Information 2, the depositions were before the
sentencing judge and they were before the Court of
Criminal Appeal. On information 3 there was a
statement of agreed facts that was placed before the sentencing judge and before the Court of
Criminal Appeal and with respect to the matters
that were asked to be taken into consideration,
there was again a statement of agreed facts that was placed before the sentencing judge and before the Court of Criminal Appeal.

As a result of that, it is my submission that

there was no dispute between those courts as to the

details of the actual offences. What was in dispute

so far as the notice of appeal to the Court of

Criminal Appeal reviewers are certain, as it were,

AITS/2/JM	21	22/8/88
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judgments with respect to surrounding circumstances

and, as to a limited degree of matters, factual
matters that were surrounding of the offences but
not at the heart of the offences.

Argument on each of those points was put to the Court of Criminal Appeal and that can be

seen from the outline - I am sorry, my friend

was going to hand up the outlines - that is apparent

from the outlines of submissions that were placed

before the Court of Criminal Appeal.	They went
through those grounds one by one.

The Crown argument before that Court, and I

put it again to this Court, is that the sentencing

judge was either not in error in his approach to

those matters, or that they were mere observations

and not matters that strictly speaking required

resolution, or that they were of no real

significance to the overall picture of offending

in this case. The overall picture is, of course,

of 55 counts, six of them carrying a maximum
penalty of life and 17 carrying a maximum-penalty

of 14 years, and more strictly speaking, falling

into three categories only. That is, with respect,

as I understand it, a point that I think Your Honour

the presiding judge made earlier, that there could
not have been grave complaint in this case if more

cumulative sentences had been imposed here.

Against that background, we say the Court of

Appeal was not obliged to make detailed findings

on each of the grounds of complaint unless those

grounds of complaint can be shown to have been

essential to the proper fixing of sentence in

this case. The submission of the Crown is that

it was not necessary for each of them individually
to be resolved, particularly if simply setting them
aside gave the appellant in this case, as it were,
the benefit of the doubt in the spirit of MAITLAND's

case.

It is my submission that so far as His Honour

Justice Matheson was concerned, it cannot be assumed,simply because he does not specifically

refer to each of the 17 grounds of appeal, that

he did not consider them and deal with them as

he thought was appropriate.

It is submitted that it is not the case that

merely because an appellant raises an issue of

dispute in a notice of appeal which is not a fact

in issue essential to sentence that he can thereby,

as it were, compel the Court of Criminal Appeal to

deal exhaustively with each of those points. In my submission, neither the case of MORRIS V REG, which

is on my friend's list of authorities, nor the

SUN ALLIANCE case, is authority for any such

AIT5/3/JM	22	22/8/88
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proposition. Each of those cases involved appeals

from verdict where resolution of disputed issues

of fact was fundamental to the determination of

the issue before the court. The case of

MORRIS V REG is a 1987 decision reported in

61 ALJR at 588. The Court will recall that

it was a criminal appeal that involved the
significance of a confession of which a witness
at the trial for murder had given evidence. In issue
was the reliability of the confession rather than

the reliability of the witness. There was

psychiatric evidence that the accused, because of

his dependence on methylated spirits as a drink,

may have been capable of saying things that were

in fact not the truth. The conviction for murder

was challenged on the basis that it was not a

reasonable verdict in light of the evidence. The

Court of Criminal Appeal had not allowed an appeal

and the matter had come to the High Court. His Honour

the Chief Justice at page 592, on the left-hand

column of the page, says as follows:

In failing to direct its atte~~ion

specifically to an examination of the reliability
of the admission, the Court of Criminal Appeal
did not carry out an independent assessment of
the evidence which it was required to do in

dealing with the ground of appeal advanced by

the applicant. The making of a careful

independent assessment was essential to the

making of an informed judgment m the question

whether the jury could reasonably convict on

the materials before them. The Court's duty

was to satisfy itself that there was

"a sufficiency of legal evidence to satisfy

reasonable men to the exclusion of any

reasonable doubt".

If the Court pleases, I place reliance on the

Chief Justice's statement there that in this

particular case that assessment was essential.	What
is put by the Crown in this case is that the matters

referred to by my learned friend Mr Borick were not
as to any of them capable of being shown to be

essential to the proper sentencing of the appellant

in this case. I put that against the background

of the large number of offences and the serious

penalties provided for them. The case, of course,

might have been different had this man been convicted

of one offence only. But the submission of the
Crown is against the total background of this case.

None of the matters which it might be suspected

were not considered by the Court of Appeal can be

shown to be essential. But, in any event, the

Crown's submission is there is no reason to conclude

that the Court of Criminal Appeal did not independently

assess the matters put to them.

I draw to the Court's attention that the

Court of Criminal Appeal did hear full argument on

AIT5/4/JM	23	22/8/88
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this appeal; it had detailed documentary material

before it which raised on both sides the issues

that have been canvassed by my learned friend; that

it is, of course, common practice for judges

to adopt findings with which they concur that have

been made by other judges and it is not ordinarily

assumed to demonstrate that they have failed to

consider the matter for themselves and indeed,

the judgment of Justice Matheson, I submit, does

indicate that he personally considered the facts,

that he simply found it convenient to adopt the

sentencing judge's expression of summary. In

particular, I draw the Court's attention to

page 86 of the appeal book. On that page there

are expressions of judgment which are clearly the first full paragraph:

There is no prospect of restitution.

There is no suggestion that that is an adoption

merely from the sentencing judge's reasons.

His Honour himself accepts Mr Borick's submission

that:

there was a lot to be said in mitigation of

penalty.

He points out that the learned trial judge agreed but he

indicates that it is his own assessrrent as well.

BRENNAN J: Is that the passage which appears at page 26

to which His Honour is referring? Or rather, I

should ask, is there any other passage but

that appearing at page 26 to which His Honour

could there be referring?

MS BRANSON: That is the passage I understand him to be

referring to, sir, yes.

BRENNAN J: That passage expressly refers to the cases which

were discoverable and were not discoverable?

MS BRANSON:  Yes, sir. His Honour Justice Matheson goes

on, in that middle paragraph of page 86, to

express agreement with His Honour the sentencing

judge and, in my submission, that indicates an

independent assessment of his own which leads

him to the same conclusion.

I do point out, of course, that His Honour

did not wholly adopt the sunnnary of facts that

was prepared by the sentencing judge. He does

carefully leave out of it the matters that were

in dispute. In my submission that again indicates

that His Honour has turned his mind to what were

appropriate findings of facts in this case.

He did, interestingly, leave in that passage

one - - -

24

AITS/5/JM	22/8/88
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DEANE J:	Except if you look at page 26 the trial judge said,

''Many of the crimes would not have been discovered",so

the area of dispute was whether it was most or not

most. Now, in that context where the court is

sentencing a person for a large number of crimes,

would you not expect, as a matter of course, that if

they were taking into account the fact that many of

the crimes would not have been discovered they would

have mentioned it instead of carefully talking about

difficulties of proof and not mentioning matters that

would never have reached the stage of proof being

led.

MS BRANSON:	If Your Honour pleases, it is a matter that one might expect to have expressed, but the learned
sentencing judge at page 26 does say he gives him
credit for his co-operation and Mr Justice Matheson
does as well and, of course, we had the exchange before the Court of Criminal Appeal that I read to the Court
earlier showing that it was an issue at the forefront
of the mind of the Court of Criminal Appeal at the
time of argument.  In my submission, it should not
readily be assumed that it had disappeared from their
minds by the time that judgment was givan.
DEANE J:	It is not calculated really to encourage people to

admit crimes which would not have been detected and

successfully prosecuted otherwise if it is simply

ignored when a sentencing court comes to impose a

sentence, is it?

MS BRANSON:  Yes. If Your Honour pleases, there was one factor

that may have influenced the Court of Criminal Appeal

in giving it less weight than it might otherwise,

although I do not wish to concede they did not give

it proper weight, and that is - my understanding was that

there was some personal benefit to the defendant in

having them regarded as taken into account as well.
He was, as my learned friend has said, being troubled

by unscrupulous lenders who were harassing him. It was clear that he thought it would be to his

advantage if these things were in the open and brought

to the attention of the authorities that it would

benefit him in relieving him from this harassment.

DEANE J:  Now, if that is the thought process of a court

sentencing somebody to imprisonment, do you not think

that he is at least entitled to be told about it?

MS BRANSON:  If Your Honour pleases, that was the nature of

submissions that were put	to the court and that is why
I put them to this Court.	My submission is that

it was taken into account. Both at the sentencing

judge level and at the Court of Criminal Appeal level

there is explicit reference to credit for co-operation.

DEANE J:  Yes, I follow that.

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MS BRANSON:  In my submission, that is the appropriate way

for it to be handled. I also put the submissions I

put earlier as to the overwhelming nature of the

number of penalties and their length is such as

to suggest that it did not at the end of the day

have a significant effect on final penalty, and

in a certain sense I think it is fair to submit

if you corrnnit enough offences you cannot, as it

were, benefit yourself by reporting yourself the

last of them, otherwise the position would be after

a certain time you would be better off to connnit more

just to report them to get your penalty on the first

ones reduced. In my submission, that cannot be

a proper sentencing principle.

If the Court pleases, it is my submission that

there is not any reason to think that the Court of

Criminal Appeal did not deal with these submissions

and I do wish expressly to put the contrary

submission to the significance of the words used by

Their Honours who constituted the Court of Criminal

Appeal in determining the 10-year sentence as an

appropriate head sentence. In my submission, there

is nothing in the examination of their method of

arriving at the 10 years which suggests they were

starting from the sentencing judge's 14 years and

discounting for his errors. In my submission, they

do show that they have independently calculated the

10 years as the aP.propriate head sentence and the

word'substitution' is simply there to indicate that

that is the sentence they propose to put in its place in accordance with their powers under the

CRIMINAL LAW CONSOLIDATION ACT.

I do submit that those words do not suggest that

they are simply starting from the sentencing judge's

penalty and working on from that. In my submission,

_ · entitled to act upon a version of the

facts which, within the bounds of reasonable

probability, was favourable to the accused without

determining each issue of dispute and, in my submission,

that is what they did, that they were only required

to resolve issues of dispute, if not to do so

could result in a sentence heavier than that which

would otherwise have been imposed and,in my

submission,against the background of the total
offending in this case and the manner of the court's

approach to imposing sentence, it cannot be said that

the course they adopted resulted in a sentence that

was heavier than it would otherwise be.

If the Court pleases.

WILSON J:	Thank you, Ms Branson.	Mr Borick, do you reply·t
MR BORICK:	If Your Honour please.	Reference is made by my fr~end

to the transcript, perhaps 1 should tell Your Honours

one thing about the way in which the case was

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conducted before Mr Justice White, and that is that the

defence prepared in effect its own transcript which

included a description of how each of the offences

occurred and described how they interlocked one

into the other. _ In the course of that there were

various schedules set out setting out those which

were on bail and those which were at other points

of time, and that was handed up to the trial judge

after it had been submitted to the Crown for, in a

sense, approval.

So that became the basis of the appellant's

submissions on sentence before Mr Justice White,

and then submissions were made after that and it

was assumed that His Honour Justice White read the

whole of that document. That document was also put

before the Full Court, but it is not before Your Honours.

So there is a great deal of information in that

which I would think is not relevant on a special

leave application, bearing in mind the nature of my

application, namely that there were offences not

discoverable which were not referred to.

WILSON J:  Yes. Thank you, Mr Borick. This ts a majority

decision of the Court. We see no reason to conclude

that the Court of Criminal Appeal failed to take

into account all relevant facts, including the

disclosure by the applicant of offences which would

not otherwise have been known. The application for

special leave should therefore be refused and is

refused.

AT 3.30 PM THE MATTER WAS ADJOURNED SINE DIE

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