Postiglione v The Queen S27/1995 [1996] HCATrans 130 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1995

B e t w e e n -

MARIO POSTIGLIONE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 11.20 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the applicant, together with my learned friend, MR S.J. ODGERS. (instructed by Arden Associates)

MR P.S. HASTINGS, QC: If the Court pleases, I appear with my learned friend, MR G.J. TABUTEAU, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

DAWSON J: Thank you. Yes, Mr Game?

MR GAME: If the Court pleases, this is, we submit, one of those cases in which the interests of the administration of justice in the particular circumstances of the case - - -

DAWSON J: You start out behind the line, do you not, when it is an appeal against sentence and nothing more?

MR GAME: Your Honour, there have been cases, Radenkovic is one, where - perhaps if I just hand you that decision - and Lowe is another where the administration of justice in the particular circumstances of the case - and I will take the Court to relevant passages in Radenkovic in a minute, but perhaps if I could take the Court firstly to Lowe.

DAWSON J: Lowe, the citation?

MR GAME: [1984] HCA 46; 154 CLR 606, at page 611, about point 2:

And it is against this background that the present application for special leave to appeal - one which reveals an exceptionally glaring example of discrepancy in punishment - has to be considered.

We submit this is just such a case. The error that we assert is a conceded error. And then at point 5:

But I would emphasize that the discretion to grant or refuse leave cannot be reduced to a formula or to rigid categories and that the Court must always make allowance for the exceptional case of manifest injustice or manifest public importance which may not readily fall into one of the categories already mentioned.

And then a little bit further on, reference to:

significant consequences for the administration of justice or for public confidence in it.

Now, in this case, this is a case involving an offender who has given evidence against his co-offenders, who has been sentenced some 12 months before them in circumstances where nothing can be known by the trial judge about the circumstances relating to the co-offenders. He is led to believe by everything which occurs that he will receive a lighter sentence than his co-offenders. He, in fact, receives a sentence which is twice as long as - - -

DAWSON J: When you say that you have got to distinguish, have you not, between the actual sentence which he received and the effect of that sentence when viewed in the light of the sentence which he was then undergoing.

MR GAME: Quite, your Honour, that is our argument. The Court of Criminal Appeal has misapprehended what the effect of the other custodial situation is. Because, your Honour, Mr Postiglione goes into custody before Mr Savvas and he comes out after, when one has regard to the Italian custody, which one must do, and which both Justice Mathews and the Court of Criminal Appeal accepted. And the difference between their sentences is substantially longer than any difference between their custodial terms. There is no logical way in which this sentence can be explained.

GAUDRON J: Well, you have to go so far as to say, do you not, that there was error of principle in failure to take account of the actual different effect of the different sentences?

MR GAME: Yes, but, your Honour, it does not make the slightest scrap of difference if Mr Postiglione's other custody is broken up into a before and after, if there is a warrant in existence for him to be taken to Italy the second he is released. Their other custodial history was actually quite similar. Mr Postiglione had the nine years and then the five years plus in Italy, then Mr Savvas, for a very, very, serious conspiracy, had a prior custody of 18 years. But, as I said a moment ago, that does not anywhere near explain the difference between the actual terms imposed.

DAWSON J: I may not be following, Mr Game, but assuming that the prior offences had nothing to do with one another.

MR GAME: Yes.

DAWSON J: Let us assume that one offender was in prison for three years and then he is convicted and gets an extra ten years, convicted of an offence which he commits with another man who is in prison for an offence for ten years, and that man also gets another ten years. Well, of course, he only, really, on top of his other sentence, the latter one, only has to serve, if they are concurrent, nothing. Whereas the other man has to serve - I have forgotten the figures - but a considerable period over and above the sentence he is already serving, but that is because of their prior custodial history.

MR GAME: Quite, your Honour. That is our whole point. The Court of Criminal Appeal has failed to appreciate the significance of the prior custodial history.

DAWSON J: What significance does it have, in the example I posited where the two prior offences for which the men were in prison had no connection with one another.

MR GAME: Well, your Honour, to take the example given in this case. If Mr Postiglione had no prior custodial history and Mr Savvas had 18 years on another sentence, then you would expect a substantial shortening of Mr Savvas' second sentence, having regard to the principle of totality. In this case you have to proceed from - we are not complaining about Mr Savvas' sentence. In this case you have to proceed from Mr Savvas' sentence to Mr Postiglione's other custodial history and that is what the Court of Criminal Appeal has failed to do. Because, once you look at the other custodial history, the figures just do not add up. To put it another way, Justice Badgery-Parker thought that 18 years and 25 years might, nominally speaking, reflect a comparison between their relevant culpabilities, and that is approximately 72 per cent.

DAWSON J: That is in relation to the offences for which they were being sentenced?

MR GAME: Yes. Now, Mr Postiglione's sentence is in excess - it is 200 per cent of Mr Savvas' sentence. One might say, prima facie - - -

DAWSON J: Now, you are jumping ahead. The sentence for which he was being sentenced, he got a lesser sentence.

MR GAME: No, he did not, your Honour. The sentence for which he was being sentenced, he got an extension of his non-parole period of 11 years.

DAWSON J: Yes, but that is when you take it in conjunction with the other offence.

MR GAME: But, your Honour, as the Court of Criminal Appeal conceded, it is quite easy to structure a sentence differently. One has to look at what the actual result is, what the term of the extension is. That much was conceded.

DAWSON J: What you are really saying is at the time of sentencing you have got to look at the situation of each of the men and, having regard to the greater culpability of Savvas, he should be getting more in practical, effective terms, than Postiglione.

MR GAME: Quite, and that is precisely what did not occur in this case, and, as I said, the error is demonstrable. There is a glaring error. It is quite simple to demonstrate it. If one looks, for example, at this diagram. If you take the period from the release date, which is March 2007, Postiglione will, in fact, be in custody until 2012. It puts him going in before Savvas and coming out after Savvas. So, it makes no difference if you add that five years on back of that period for the first offence. As I said at the outset, the difference between the pre-existing custodial terms is substantially less than the difference between the sentences between Postiglione and Savvas. Now, your Honour, the Crown, in making its concession in the Court of Criminal Appeal and maintaining the concession which it makes, having regard to the judgment of the Court of Criminal Appeal, referred to the problem of assistance and there is a general administration of justice problem here.

DAWSON J: The problem of?

MR GAME: I will just explain what the problem is, your Honour.

DAWSON J: What did you call it?

MR GAME: Problem in the administration of justice.

DAWSON J: You called it problem of assistance, did you not?

MR GAME: No, I did not.

DAWSON J: I am sorry, I misheard then.

MR GAME: Sorry. I said problem in the administration of justice, sorry. I beg your pardon, your Honour.

DAWSON J: That was my - - -

MR GAME: That was what I intended to say. The problem is this: it is a long-standing practice in this country and in the United Kingdom that prisoners who give assistance against their co-offenders are sentenced before their co-offenders are sentenced. And the reason is so that when they come to give evidence there is no suggestion can be put to them that their evidence is coloured by the expectation of a good sentence, but it creates a significant problem, because it is accepted in sentencing principle, it was enunciated by this Court, and particularly Justice Brennan as he was, in Lowe's Case, that in sentencing co-offenders it is necessary to have regard to both the culpability and the antecedents of the co-offenders.

That cannot happen in this case. So, years later, his co-offenders are dealt with, he has given evidence, the judge who knows the whole flavour of the case gives sentence to the co-offenders, which itself produces a result which completely undermines the whole notion that the prisoner is to gain some benefit from giving assistance, because he gained absolutely no benefit from it at all. I mean, when one has regard to section 16G which requires that a third be taken off the sentence, his overall head sentence increase in this case was 27 years. However one looks at this sentence, from whichever angle one looks at this sentence, and having regard to what the Crown has, itself, forcefully put both in the Court of Criminal Appeal and in this Court, it cannot be justified.

Now, Radenkovic is another case[1990] HCA 54; , 170 CLR 623. That is a case where - in fact, on the question of special leave I should mention your Honour Justice Dawson dissented - in Radenkovic special leave was granted in one particular individual case on the basis that a principle which was enunciated in a case called T's Case, which was to give prisoners who succeeded on appeal, or failed on appeal but were subject to appeal, who were resentenced the benefit of lost remissions, although there was no provision for them in the Sentencing Act 1989 and at page 635 in the judgment of the Chief Justice and Justice McHugh, there is a reference to the need to grant special leave:

proceeding from what appears to be an error of principle, which produced an unjust and anomalous result in the particular case.

That is the final line. And, in similar terms Justice Toohey and your Honour Justice Gaudron at page 647, particularly the second to last paragraph:

To put the matter in this way is not to overlook -

And then at the top of that page, in fact:

To that extent the position of the applicant is anomalous.

There is no way in which the Court, in which the error which has occurred in this case - and we rely on that by way of analogy, there are always cases where the particular circumstances of the case warrant a grant of special leave. In this case, the error which is established cannot be corrected anywhere unless this Court grants special leave. We also contend that there is a question upon which both ourselves and the respondents are agreed as to the correct application in this case, and contrary to the Court of Criminal Appeal, but we contend that there is an important question concerning the application of the relationship between the totality principle and the parity principle. That is to say, how do you, when dealing with co-offenders who have different custodial histories, deal with that in the context of arriving at a proper sentence which does not leave a person with a justifiable sense of grievance.

We would say in this case that for a person not to have a justifiable sense of grievance it must be that the sentences must be capable of being understood when examined together and that, in a sense, is no more than what is encapsulated by the parity principle. Well, these sentences, when examined together, cannot be explained. They are incomprehensible. Those are our submissions, if the Court pleases.

DAWSON J: Thank you, Mr Game. Well, Mr Hastings, what is the attitude of the Crown?

MR HASTINGS: Generally, one of sympathy for the plight of the applicant, but one of not consenting to the application on the basis that there did not seem to be a matter of principle or significant miscarriage of justice.

DAWSON J: Why do you have sympathy?

MR HASTINGS: Because he seems to have been quite harshly dealt with on the basis of his co-operation that he gave.

GAUDRON J: But, is not there a question of principle in so far as this question of what is really to be taken into account in determining parity?

MR HASTINGS: Yes, indeed. Well, we would say that is not a matter of principle. It is just a simple matter of a judgment, an exercise of discretion in the ordinary principles of - - -

GAUDRON J: Well, not exactly, is it, because in this case it has been said, "Well, that's of no consequence. That's how it happened. It's of no consequence."

MR HASTINGS: That is a matter of discretion, we would say with respect, rather than a matter of principle.

GAUDRON J: Or misapplication, misexercise of the discretion.

DAWSON J: What is the totality principle, Mr Hastings?

MR HASTINGS: I am sorry, your Honour?

DAWSON J: What is the totality principle? Perhaps you will direct that question to Mr Game.

MR HASTINGS: Well, we would not have thought there was any doubt as a result of the authorities but it is simply a requirement on a sentencing judge to come up with a figure which is fair in all the circumstances where there are a number of circumstances to be taken into account including separate sentences and we do have some sympathy here because it seems that, at the end of the day, Mr Postiglione did not obtain the leniency which he otherwise seemed to deserve because of his contribution to the Crown case. It seems to us, with respect, that in a way the words of the current Chief Justice in Lowe are quite appropriate even though he was in a minority in that he said that the existence of a disparity sometimes heightened the interest in the sentence itself.

DAWSON J: If the disparity arises from previous custodial history, what does it matter?

MR HASTINGS: The circumstances generating the disparity, we would agree, do not matter in terms of classification. It is the end result which produces the disparity.

DAWSON J: So what you say is, notwithstanding prior custodial history, looking at the situation at the time of sentencing, if you have one man whose criminal culpability is much greater than that or another man, they being sentenced in relation to the same offence at the time of sentencing, the sentence should reflect that.

MR HASTINGS: All other things being equal, yes.

DAWSON J: That is what I am asking. Are all other things equal, if the lack of disparity depends upon what you do with the prior custodial history, that is the prior sentences.

MR HASTINGS: Yes. Your Honour, we would say that the problem really emerges in the sentence itself, rather than disparity, and when one looks at the way in which the end result was reached the applicant seems to have been unfortunate in that the non-parole period which was originally fixed before the application of the discount seemed to be quite high and, on my calculation, was around 80 per cent which is above the norm and certainly did not reflect any sense of leniency. And secondly, the discount for co-operation, again on my calculation, of a reduction of 3 years from a contemplated total non-parole period of 16 years and 10 months again was very low, as amounting on my calculation to 18 per cent. Hence we have said in our written submissions that if what seems to be a reasonably common rate of discount of 50 per cent had been applied to Mr Postiglione's sentence it would have reduced his sentence substantially and effectively avoided the disparity.

DAWSON J: This Court has said repeatedly that the mere excessiveness of the sentence is not sufficient to warrant the grant of special leave. Now, do you say there is nothing more in this case than that?

MR HASTINGS: We say that is where the matter comes back to. With the benefit of hindsight the error seems to have occurred within the sentence itself imposed upon Mr Postiglione, in that he was given an inadequate discount. If the usual 50 per cent discount had been - when I say usual, a rate which is commonplace - had been applied, then it would have significantly reduced his time in custody, which would have effectively reduced the appearance of disparity.

GAUDRON J: But do you shrink from saying that it raises a problem in the administration of justice in cases where you have accused assisting in the prosecution case?

MR HASTINGS: No, your Honour.

GAUDRON J: You say it does in fact create such a problem?

MR HASTINGS: Yes, and that was the basis upon which the concession was made in the court below, on a general level - - -

GAUDRON J: So it is not simply a matter of excessiveness, is it?

MR HASTINGS: No, no, and as I have said, we have considerable sympathy, not only from the general point of view, because of the deterrent that it would create, but also - - -

DAWSON J: If you make a concession, why do you not make a full-blooded concession?

MR HASTINGS: I am making concessions within the ambit of my instructions.

GUMMOW J: If leave were granted, what would you be saying in resistance to an appeal? That is what I am wondering about.

MR HASTINGS: We would not oppose the appeal with any vigour, can I just put it as limply as that, your Honour.

DAWSON J: It is limp, is it not?

MR HASTINGS: Yes. Unfortunately my instructions - - -

DAWSON J: If the Crown is going to take an attitude on these things, it should make its attitude clear.

GUMMOW J: It sounds like buck-passing to me.

MR HASTINGS: My instructions are based upon the absence of any error of principle which would normally attract the intervention of the Court.

DAWSON J: But Justice Gaudron has come close to having you admit there is an error of principle.

MR HASTINGS: I thought I went as far as conceding that there may be a problem with the administration of justice, rather than a matter of principle. I apologise for being somewhat mealy-mouthed, your Honour.

DAWSON J: Our comments are not personal, Mr Hastings.

MR HASTINGS: Thank you. I am trying to juggle the concession of sympathy with a maintenance of an argument or law.

DAWSON J: I think we understand your position.

MR HASTINGS: Thank you, your Honours.

DAWSON J: We need not trouble you further, Mr Game. There will be a grant of special leave in this matter.

AT 11.42 AM THE MATTER WAS CONCLUDED