Spaliviero v The Queen S55/1994 [1994] HCATrans 75 (13 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S55 of 1994

B e t w e e n -

STEPHEN SPALIVIERO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 10.31 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by Christopher Murphy)

MR P.C. BANNON, QC: If Your Honours please, I appear with my learned friend, MR J.P. BOOTH, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public prosecutions)

BRENNAN J: Yes, Mr James.

MR JAMES: Once again, Your Honours, this is a matter in which an enlargement of time is sought for the reasons that appear in the affidavit at page 44 of the application book through to page 45.

BRENNAN J: What is your attitude, Mr Bannon?

MR BANNON: That is not opposed, Your Honour.

BRENNAN J: Very well. Time will be extended, Mr James.

MR JAMES: May it please the Court. Your Honours, essentially this matter concerns the effect on the principles that this Court and other courts have enunciated when dealing with non-parole periods or minimum terms of section 5(2) of the New South Wales Sentencing Act.

The question has been agitated in previous cases in which special leave has been sought, and in particular on a special leave application in Reg v Dib. That case does appear on our list of authorities, but we received a call last night to indicate that the unreported decision of the Court of Criminal Appeal had not been available to Your Honours, and copies of it were obtained this morning. Might I hand them up to Your Honours.

Without taking Your Honours to that decision in detail, could I encapsulate the problem this way: in section 5(2) of the Sentencing Act there is a provision for a statutory proportion of minimum term to additional term, the minimum term being a term which by statute is a term which the prisoner is required to spend in custody; the additional term a term in which he may be available for release. That sort of scheme in sentencing legislation has been considered in Bugmy and in numerous cases in this Court, including Paivinen, Power, Bugmy and many others.

Section 5(2) defines a statutory proportion except where there are special circumstances. Various of the judges of the court - - -

McHUGH J: It does not define it. It says it must not

exceed one-third.

MR JAMES: I withdraw what I said because the issue really is whether what Your Honour said is correct or whether what I said is correct in the sense that the judges of the New South Wales Supreme Court have adopted entirely differing views as to whether what the section does is to produce a set of statutory norms which require the sentence to have a particular proportion unless there are special circumstances, or simply providing for a ceiling. Indeed, there are - - -

BRENNAN J: That is something the Supreme Court can work out.

MR JAMES: Your Honours, indeed, His Honour the Chief Justice on the application in Dib, did say that perhaps it would be an appropriate matter for a five judge court to sit, because literally there are almost, I think, five different views and many adherents to each view.

DAWSON J: But it is just a question of statutory interpretation, is it not?

MR JAMES: It is not just a question of statutory interpretation, Your Honour, because it is a question of statutory interpretation which involves a question of law, albeit in one court, but affecting some thousands of people who are being sentenced - - -

DAWSON J: It is still just a question of statutory interpretation.

McHUGH J: About sentencing.

MR JAMES: It is not sentencing, Your Honour. It is more than sentencing. It goes to the point of whether or not those principles that this Court has referred to in a number of cases dealing with similar statutes are simply of no application to a New South Wales statute that does not expressly exclude them, and appears to be postulated on the basis of them. It is put most starkly by Mr Justice Hunt in Reg v Hawkins, which is not on our list of authorities, but is to be found in (1993) 67 A Crim R at page 64, and I have extracted the very short proposition as to what His Honour says at the bottom of page 69. Might I hand that to Your Honours.

DAWSON J: Sentencing is essentially a local matter. That has been said many times.

MR JAMES: Sentencing is a local matter, but the nature of statutes - - -

DAWSON J: The interpretation of a statute dealing with sentencing is intentionally a local matter. It is a local statute.

MR JAMES: Depending on the principles that one applies in dealing with the local statute. The principles of statutory interpretation, the principles this Court has had regard to in all those cases cited in all the judgments in Bugmy - - -

DAWSON J: What you are saying is the statute may affect the common law principles. That is true, but it just becomes a question of what the statute means.

MR JAMES: Your Honour, the problem is that the words as they stand leave the New South Wales Court of Criminal Appeal in, as was put in Dib, a lottery situation. I think the Solicitor-General, in fact, used that terminology. We have tried to get a five person court. We are told firstly it does not affect this case because the court is functus; and secondly, that a court cannot be convened until some time in the new year.

BRENNAN J: So be it. This Court is not a longstop for the New South Wales Court of Criminal Appeal, Mr James.

MR JAMES: Nor a longstop for my client, Your Honour, and I appreciate that, but there are questions of principle in the interpretation involved here just as there were in Hoare and Easton in South Australia; in Paivinen, in Power, in Griffiths, in Bugmy from Victoria.

BRENNAN J: What is the question of principle here?

MR JAMES: The question of principle is whether or not section 5(2) of the New South Wales Sentencing Act has the effect of abrogating the principles the Court had enunciated in that earlier line of cases.

BRENNAN J: What are the principles that were abrogated by 5(2)?

MR JAMES: Whether or not there is contained in the minimum term and in the additional term matters of punishment and rehabilitation such that the adjustment of those two terms should reflect the different weighting of those principles; or whether it is simply a case of saying once you find special circumstances 5(2) goes. There is no question of statutory norms; there is no question of common law norms - it is simply left to the discretion of the judge and his own divining of the individual case; or whether the special circumstances in the section are something that is peculiar to the individual or whether there is some principle underlying how they should be interpreted. I cannot put it any more starkly than that, Your Honours. This is not just a question of sentencing, not just a question of construction of a local statute.

BRENNAN J: And this in the case in which Mr Justice Mahoney said that his inclination was to take the view that:

the orders which the court must make do not involve a sufficient punishment for what was done.

MR JAMES: I appreciate that that was said, Your Honours. That is a question that does go to vehicle and I have to confront. But if "a sufficient punishment" is a sentence of seven years in circumstances where the man requires no rehabilitation or limited rehabilitation, can one say that the six years head sentence as it used to be called, minimum term as it now is, is, as it were, the punishment element and there is no rehabilitative element involved in the minimum term? I cannot take it further than to put it on that basis, but this legislation is becoming not uniform, not model, but at least a vehicle for legislation throughout the Commonwealth, and yet the Supreme Court is left in confusion over how to interpret it, and the District Court in confusion over how to apply it. Unless I can assist the Court further, they are the submissions on this matter.

BRENNAN J: Thank you, Mr James. We need not trouble you, Mr Bannon.

The question of principle which the applicant wishes to raise on appeal is a question which is appropriate for the Court of Criminal Appeal and not for this Court to consider and determine. In any event the application has no prospects of success on appeal. Accordingly special leave is refused.

AT 10.42 AM THE MATTER WAS ADJOURNED SINE DIE