Postiglione v The Queen S49/1996 [1996] HCATrans 343 (5 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 1996

B e t w e e n -

MARIO POSTIGLIONE

Appellant

and

THE QUEEN

Respondent

DAWSON J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 SEPTEMBER 1996, AT 2.17 PM

Copyright in the High Court of Australia

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

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

DAWSON J: Mr Game.

MR GAME: Before I hand the Court my outline, I have discussed this with my friend, and in the unusual circumstances of this case it might be of assistance to the Court if your Honours receive both of our outlines because they are really a matter of emphases as to our differences in relation to this case.

KIRBY J: Has the Crown firmed up a little since the special leave application, with a little encouragement from Justice Dawson?

MR GAME: I just thought that it might be preferable if the Court could see that, really, our differences were a matter of emphasis rather than a matter of substance.

DAWSON J: Very well. You do not have both Mr Hastings' - - -

MR GAME: No, but I also have a diagram which I will tantalise your Honours with.

DAWSON J: Hand up yours and the diagram first, and then if Mr Hastings would hand his up. You do not object to that course, do you, Mr Hastings?

MR HASTINGS: No, I agree with it, your Honour.

MR GAME: I hand the outline and the diagram to the Court.

DAWSON J: You wish to hand yours up, do you, Mr Hastings? Yes, Mr Game.

MR GAME: The appellant was sentenced by Justice Mathews on 7 May 1993. At that time he was serving a sentence which had a non-parole period of 9 years. There was total sentence in relation to the first Australian sentence of 12 years. There was outstanding a warrant for his return to Italy to serve the balance of an Italian sentence of 5 years, 4 months and 2 days upon his release, whenever that might be. Her Honour sentenced the appellant to a sentence of 18 years with a non-parole period of 13 years 10 months. She said that the non-parole period and head sentence would each have been three years longer but for section 21E of the Crimes Act.

She treated that as a 21E deduction and, in a sense which is not necessary for the Court to pursue, that was erroneous, the actual approach, but it is significant that the extra length of the sentence that she said would have been attributable to future assistance or that which was reduced for future assistance was three years relating both to the non-parole period and the head sentence, which would have produced a total sentence of 21 years.

The provisions of section 16G of the Crimes Act applied to this sentence and in line with the decision, it applies to all of the sentences which are under consideration in this case. Section 16G of the Crimes Act, following a decision of your Honour Justice Kirby when you were the President of the Court of Appeal, I think, has the effect that in relation to the fixing of sentences, the Court has regard to the absence of remissions in New South Wales and reduces the sentence accordingly, and the practice has been to reduce the sentence by a third.

Section 16G was introduced following the decision of - amongst a bundle of amendments to the Act, but it was introduced particularly with a decision of this Court in the case of Leeth in mind to ensure that federal prisoners are dealt with equally in States, but all of the sentences and sums to which you are referred and are related here are sums which are after the deduction and made for section 16G of the Crimes Act. So, for example, when one speaks of 21 years, then before the deduction for section 16G, the sentence would have been in excess of 30 years.

The effect of her Honour's sentence in relation to the non-parole period and head sentence was that, leaving aside for the moment how much longer she said it would be but for section 21E, but assuming that the appellant gave the assistance which he undertook to give, and he in fact did give that assistance, then the non-parole period was to be extended by 11 years and the head sentence by 12 years 2 months. The sentence was imposed at a time in which there was 2 years 10 months of the outstanding sentence to be served. To that extent only, it was concurrent. In all other respects, it was cumulative.

In effect, then, what we are speaking of in terms of non-parole periods in this case is 11 years or absent the future assistance, 14 years, and if one read into that the section 16G allowance made following El Karhani, the 11 year period would, in effect, be about 16 and a half years and the 14 years would be about 21 years. That leaves altogether, looking at the 11 years, aside past assistance, past co-operation and a plea, and it is inevitable on our case that those figures themselves, on careful analysis, demonstrate that the original sentence was attenuated by error but, clearly enough, events followed that threw that error into much starker contrast, in our submission.

Eventually, the appellant did give evidence in the trial of Savvas and his co-accuseds. Savvas was serving a sentence of 25 years with a non-parole period of 18 years. Savvas had, when he came up for sentence before Justice Grove, which was on 17 June 1994, served 5 years and 10 months. Incidentally, Mr Postiglione had appealed to the Court of Criminal Appeal and his appeal had been dismissed but, clearly, the question of parity had not been addressed by the Court and the Court's order was not perfected which enabled the appellant to re-visit the Court of Criminal Appeal after Savvas was sentenced and the Court held that it had jurisdiction in line with this Court's decision in Pantorno.

KIRBY J: Did it hold that or it assumed that for the purpose of reaching the conclusion?

MR GAME: It accepted it.

KIRBY J: I looked at those pages referred to by Justice Badgery-Parker and I was not sure that they supported the proposition. Perhaps I had not given thought to the fact that the order had not been perfected.

MR GAME: His Honour said at page 65:

For my part, I would be prepared to hold (had it been necessary to decide the point) that the applicant is entitled to bring a second application for leave to appeal in the particular circumstances of this case. It appears to me that the matter falls squarely within the principles expressed by the High Court in Pantorno.

But, your Honour, the court's order had not been perfected and there are a number of decisions which hold that the Court does have jurisdiction to revisit an appeal if it has not been perfected.

GUMMOW J: It is still the first proceeding. It is not a second proceeding.

MR GAME: Yes, your Honour, but there are cases where different Courts of Criminal Appeal have presided for the purposes of dealing with the one case and a case that came before this Court eventually was Shepherd v The Queen, where the third court disagreed with the first or second court's - the court was composed by three different members on three different occasions in Shepherd v The Queen.

KIRBY J: Where is that reported?

MR GAME: I have not got the citation, but it is in the Commonwealth Law Reports. Shepherd v The Queen, the circumstantial evidence case. It was a case where, in effect, special leave was granted with one Court of Criminal Appeal in the same case disagreeing with another in relation to the application of the proviso, but in any event it has not been an issue in this case as to the jurisdiction of the court which heard the case - - -

KIRBY J: We still have to be satisfied as to our jurisdiction.

MR GAME: Certainly, your Honour, but this Court held in Jones v The Queen that after an offender's case had been dealt with parity could arise in the event of the subsequent sentence. So it would create a most unsatisfactory result if an offender in the case of this appellant was not able to have his question of parity reviewed by the Court, given the fact that it is an aspect of the administration of justice in these circumstances that the offender is dealt with prior to giving evidence against his co-offender.

So, in a sense, it is inevitable, having regard to the way in which offenders give evidence and the decision of this Court in Jones v The Queen that the particular sequence of events that occurred in this case would happen. Now, Justice Grove, when he sentenced the offender, Savvas, imposed a sentence which was, in fact, the same sentence which had originally been imposed, namely, 25 years with a non-parole period of 18 years. Savvas had served 5 years 10 months, so, in effect, the sentence which was imposed by Justice Grove in relation to Savvas extended his sentence, both the non-parole period and head sentence, by some 5 years.

GAUDRON J: Well, the effect was that of the head sentence 19 years was to be served concurrently, is that right, with the sentence that he was then serving?

MR GAME: With respect to the head sentence, yes, your Honour, that is correct.

GAUDRON J: Yes, as distinct from 2 years 20 months concurrent?

MR GAME: Exactly.

GAUDRON J: With the sentence for your client?

MR GAME: Yes, exactly. Now, just in terms of sequence, in terms of findings in relation to levels of culpability, Justice Mathews had approached the case in relation to Postiglione on the basis that Savvas was more culpable than Postiglione. Justice Grove, in relation to Savvas found himself constrained in relation to actual culpability not to make an adverse finding against Savvas on that point. That appears at page 26. However, he was of the view that in relation to their overall merits on sentence, Postiglione's case was more merit worthy than that of Savvas', and that appears at page 34, where he said -

this is lines 15 to 3:

Second, I do not overlook that the extension of non parole period amounts to about six years, whereas Postiglione - whose merit on balance I consider exceeds yours - was extended by eleven years. Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in Postiglione. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable.

So then, looking merely for present purposes at the extensions of the non-parole periods, Postiglione, whose merit exceeded that of Savvas, had his non-parole period extended by 11 years, Savvas had his extended by 5 years and 10 months.

GUMMOW J: Well, your client goes in first and comes out later.

MR GAME: Goes in first and comes out last.

GUMMOW J: Well, later.

MR GAME: Comes out later, yes.

GUMMOW J: But at the end, you have to say that there is some error of principle on page 64 of the appeal paper, do you not, in the way the Court of Criminal Appeal approached this?

MR GAME: Well, yes, but could I just go back to page 63 for a moment, your Honour?

GUMMOW J: Yes.

MR GAME: In fact, if you look at page 62 you will see the things that favour Postiglione as against Savvas.

GUMMOW J: Yes.

MR GAME: Then, at page 63, his Honour accepted that:

not too much significance attached to the nominal term of the sentences -

that is line 25. Then his Honour observed a little bit further down that, in terms of nominal terms, 25 with a non-parole period of 18 was - or 18 with 11, or 18 with 13 years 10 months, represented a due discrimination. Now, we would submit that that is unduly conservative for the reason that when one includes this section 21E factor, it is almost bringing them back to the same. But accepting that proportionality just for the purposes of argument, 18 to 25 is about 75 per cent, 18 as to 11 is about 60 per cent, or 18 as to 13 years 10 is about 75 per cent, so they are in that region of between two-thirds and three-quarters, shall we say.

That is what, leaving aside the total sentences, we would say would be an appropriate approach to take to the fixing of Postiglione's sentence. Now, Postiglione was serving an Australian sentence which earned him half of the minimum term of Savvas. Now, Postiglione, serving an Australian term with half - and we would submit that it is appropriate for the purposes of this investigation to, in general terms, attribute half being appropriate as a measure of culpability as well - - -

McHUGH J: Well, Mr Game, this is what troubles me about this whole case. Your submissions are predicated on the base that the totality principle applies. Now, I do not think Mill's Case supports that proposition for this case. You might get some support in Gordon, a decision which at least, at first blush, seems to me of doubtful authority, but once you start talking about bringing in the Italian sentence, to take that into account as part of the totality principle, the matter seems to become unreal. I mean, no wonder the public is concerned about sentencing practices.

Supposing even at this late date that Postiglione - his original sentence was quashed or pardoned, what would be your submission then about the sentence that he has got for this matter, that he should get two or three years or something?

MR GAME: No, your Honour, which one is quashed - the Italian one?

McHUGH J: The original one. The one that he went into prison on 8 March 1987. I mean, surely a person should be sentenced for the crime for which he has been convicted and which is before the court, although it is legitimate, in some circumstances, where the crime is part of what might be called one transaction, to take into account the totality of his criminality. Here you are looking at events years before and in one case you want us to take into account what happens in a foreign country.

MR GAME: Your Honour, in my submission, the totality principle requires the court to consider the total impact of the sentence having regard both to the seriousness of the offence and the impact upon the offender, having regard to all of the circumstances relevant to the offender.

DAWSON J: What would happen if, for instance, he had completed his sentence for the previous offence before this sentence were imposed? It would then be irrelevant.

MR GAME: Well, it would not be irrelevant, your Honour, if, for example, he was at the very end of his sentence, it would necessarily affect the way in which you fixed the sentence.

DAWSON J: No, let us say he had completed it, would you then say it was irrelevant?

MR GAME: It is a subjective circumstance that would have to be taken into account, but, your Honour, if you sweep aside all of the other custodial history, then you are still left with a justifiable sense of grievance, because you would have to sweep away all of Savvas' custodial history as well. But, in any event, in my submission, there is an answer to your Honour Justice McHugh's question and the answer is that an offender who is serving a lengthy sentence with another lengthy sentence to be served and then another lengthy sentence after that, in the time of the second sentence, the second sentence is clearly more onerous period of custody, having regard to the fact that his situation is absolutely hopeless, in the sense that he will be in gaol in Italy until he is in his mid-70's, so there is a necessary impact on the effect of the second sentence on him - - -

KIRBY J: That is why Justice McHugh's question is very important and it arises in a special leave application next week. Is the totality principle an anticrushing principle, or is the totality principle a principle which is addressed to the totality of connected offences?

MR GAME: Your Honour, the totality principle has a number of different applications. One of them is an anti-crushing principle, which is its particular application in this case. One of them relates to consecutive sentences. But, your Honour, it is not limited to the imposing of consecutive sentences by one sentencer at the one particular time. If I could give the Court an example. If one does not take this approach, one ends up with really absurd sentences like 50 years or 60 years, and it is necessary to temper the way in which one sentences, having regard to that principle which has always been treated as having that effect.

KIRBY J: You say that, but maybe it is absurd sentences for absurd repetition, of absurd criminality. That is perhaps what the public would think, as Justice McHugh says, that if people go on committing offences they cannot expect to have some special benefit for it.

MR GAME: There is no special benefit that - this man is serving 30 years gaol for episodes of criminality in which he has produced absolutely no - he has been involved in conspiracies but not one gram of heroin has actually landed on the street in relation to him. Moreover, his sentences have been aggravated as he has gone along, having regard to his earlier sentence. In his first sentence, in the Court of Criminal Appeal, in the 1987 one, which was before the Court of Criminal Appeal in 1991, the very reason, the specific reason for his lengthy sentence, was the fact that he had a prior conviction in Italy. That was the aggravating feature against him. So, one cannot weigh these things - one is double-counting against him, in effect, to take that approach.

McHUGH J: I do not understand that, at all. Look at it from the point of view of the public. They say, these two people are involved in this serious crime. One gets 25 years with an 18 years non-parole period, the other one gets 18 years with 13 years 10 months non-parole period, and you say, with respect of the lower sentence, "Oh, that is far too harsh because this man is already in gaol for serving sentences and he is going to be in gaol overseas, therefore he ought to get - what, 5 years". What must the public think? Why is not the proper approach to sentence him for what he has done on this particular occasion, unless it is part of the one transaction? Then you can regard his criminality for those matters to be taken into account.

KIRBY J: That is why you have to say that the totality principle is an anti-crushing principle and you really have to look at the impact of all of this on the one human being, and we do not use the criminal punishments to crush an individual.

McHUGH J: That is what I want your assistance on, because I do not think Mills goes so far as to help you. It may be that Gordon does, and I am not sure that Harrison helps you either.

MR GAME: The three cases which I found that seemed to deal with the question, and we were unable to find cases in other jurisdictions that did, were Bakhos, Harrison and Gordon.

McHUGH J: Gordon is obviously a case that has helped you. Gordon is the one, I think, where he was already in gaol and serving a sentence and you had to take that into account.

MR GAME: Yes. Could I just say before going further, that it is part of our argument that on analysis that simply looking at that proportionality that Justice Badgery-Parker accepted, it must be that parity was not given any regard in relation to Postiglione. Secondly, just looking at the figures the way I analysed them at the very beginning, that is demonstrative of error in relation to this case.

KIRBY J: Would you just help me a little on that. Why is 25 and 18 so self-evidently disproportionate?

MR GAME: I am not arguing with that, but I am saying that if you take a figure of - Justice Badgery-Parker thought that a figure of 25 as to 18 purely in nominal terms represented their appropriate relationships between their sentences. So one might expect in general round terms somewhere between about 70 and 75 per cent for Postiglione, if you start the sentencing exercise at the right place, which is that you start with a commencing sentence for Savvas. The Court of Criminal Appeal has said in a case called Ng that if you would otherwise impose a sentence of life, then after section 16G but leaving aside other subjective circumstances, 20 years would be an appropriate starting point.

But life was held not to be appropriate in this case and it was not suggested to be appropriate in the case of either Savvas or Postiglione. So, if you started, shall we say, with a sentence of 25 for Savvas with a non-parole period of 18 and you applied section 16G to that as you must, then you would have a figure that was 16 and a half with 12 and then there must have been an allowance for totality which brought his sentence back to 12 with 6. But if you then apply the 75 per cent to Mr Postiglione, that being the 75 per cent of 25 with 18, you start with 18 and three quarters, head sentence 13 and a half non-parole period. Then, applying section 16G to that, you get 12 and a half with 9.

That is to say, forgetting altogether about totality, forgetting altogether about what actually Savvas got but taking the conservative starting point for Savvas' sentence at 25 with 18, that must - and accepting the proportional relationship between the two for parity purposes being about three quarters, you end up with a non-parole period for Postiglione which is before you have had regard either to totality or to any other features relevant to him, you are at a figure of 9 which is substantially less than the figure that was arrived at. That is why I say that - and it may explain the Crown's concession. On analysis these figures are simply so high that they are tainted by error. It may be that this is a case of the kind referred to by Justice Brennan in Lowe's Case where the disparity itself discloses that there is error elsewhere in the sentence rather than the disparity being simply the thing that one focuses on for the purposes of saying that there is error in the sentence.

But if I could return to your Honour Justice McHugh's question. It cannot be, in my submission, that the totality principle only applies to sentences being imposed at the one particular time, and I will give an example in a moment, but on the same basis, it cannot be that it is simply restricted to the notion of whether the sentence is crushing. If an offender, shall we say, had committed five armed robberies each of which would have deserved, shall be say, seven or eight years non-parole period, the sentencer might say, "Well, I'll give that person a non-parole period for all of them of, shall we say, 10 or 12 years". That is an application of the totality principle. That is an accepted application of the totality principle and it is also not an erroneous sentence to impose them concurrently.

If it so happens that three years through that offender's sentence it is discovered that that offender committed another armed robbery several years before the other armed robberies and that is then brought before the court, that person pleads guilty and stands for sentence for that offence, it would be quite inappropriate to accumulate on the 10 or 12 years another seven or eight years. It would be necessary to have some quite small adjustment upwards of the sentence to have regard to the totality of the conduct.

McHUGH J: You assert that and I know in practice that is what has happened, but how do you justify it in principle?

MR GAME: I justify it in principle because, your Honour, you are asking yourself the question: had the one sentencer been possessed of all of this material at the one time, what sentence would the one sentencer have imposed for the lot in that case?

KIRBY J: Is your answer that sentencing takes into account the dual functions, the criminal act, but also the features special to the individual, and if those features include the fact that the individual is serving very long sentences of imprisonment, it is inescapably something that has to be taken into account in judging the balance that has to be struck between the two elements of sentencing?

MR GAME: Yes, exactly. Could I also say this: although it is hard to find cases that really address this particular issue, that example I just gave I think people would say would represent their experience of the way in which the criminal justice system - - -

McHUGH J: It certainly represents my experience.

MR GAME: - - - has for a long time dealt with cases like this.

KIRBY J: This is why the use of those words "the subjective features" are always wrong in my opinion. It is not the subjective features of the prisoner. It is the whole impact of the sentence as it falls upon that prisoner, which goes beyond features subjective to the prisoner.

MR GAME: Indeed, those features, if your Honour applied that sort of reasoning, would be more aptly described as objective features but, again, it is just begging the question. I agree, your Honour. So, as I said, apart from that line of cases, Harrison, Gordon and Bakhos, those are really the cases that I have been able to find where there has been a court sentencing an offender who is currently serving a sentence which has nearly expired, shall we say, but there is a particular application of that which will always be relevant and it is this.

It is an accepted principle that it is inappropriate to extend a head sentence for the purposes of providing a meaningful period on parole and that particular principle was not observed in this case because there was a short extension of the head sentence proportionate to the extension of the non-parole period, but the effect of the application of that principle, when you have an offender who is serving a long sentence, is that the non-parole period must be adjusted downwards in order to provide for a meaningful period on parole and that is, again, as matter of experience, the way in which the courts have always dealt with cases of offenders who are serving long sentences. Otherwise you end up with an absurd sentence with a very long non-parole period and a very short period with eligibility for parole, which is generally - - -

KIRBY J: Parole is very unreal in this case because your client is going to be expelled from the country the minute his head sentence is finished.

MR GAME: Quite, your Honour. I am only giving that example to give an example of the sort of question that your Honours Justice Dawson and Justice McHugh were asking to attempt to give some substance to show that it was relevant, but that it was relevant in various and differing ways.

KIRBY J: I suppose we have to put out of our mind the fact that your client will be removed from Australia immediately he finishes his sentence because in the meantime he is costing the Australian taxpayer an awful lot of money to keep him in our prison. Is there any principle of sentencing that the fact that a person is going to be removed as a non-citizen is a factor that can be taken into account. It does not seem to have been taken into account in this case. This is going to cost thousands of dollars to keep this man all this time in Australia, when he should be sent back to Italy where he still has to serve sentence.

MR GAME: The case of Shrestha, which is a decision of this Court - again, it is not on my list of authorities, but the effect of the majority judgment in Shrestha - - -

McHUGH J: Yes, the Chief Justice and myself dissented.

MR GAME: The effect of the majority judgment in Shrestha is that in relation to the parole period one has to approach the question on the basis that the offender will serve a period on parole in this country, so that it would not be appropriate to say, "I sentence you to 10 years fixed term, no non-parole period, goodbye." That would not be an appropriate sentencing exercise according to Shrestha, but this case is a little bit different because this appellant will be - there is a warrant for his arrest and he will be removed from the country and taken to serve a sentence in Italy. The only other possible alternative in this case is that - and it may be a quite unrealistic possibility - is that he would, in fact, be refused parole because it only provides an eligibility for parole, but I think that may be just a purely hypothetical proposition in a case such as this, but in the ordinarily case one would have to have regard to the fact that there would be a period - he might not get parole given his history.

KIRBY J: I wish if I could to fashion a coherent principle that would say that he should be a burden on the Italian taxpayers rather than on ours. He has to serve five more years imprisonment in Italy, but his criminality for which he is now being punished is in our country against our laws and against the peace of Australia and, therefore, presumably has to be dealt with here for that.

MR GAME: Quite, your Honour, and I do not wish to turn this into submissions on a guilty plea, but he did provide an extraordinary level of assistance to the authorities.

McHUGH J: He only fleshed out some detail.

MR GAME: No, that was when he was sentenced by her Honour. Then he gave evidence against all of the co-offenders at their trial, people, in one case, who were of quite extraordinary dangerous potential. When he was sentenced he had provided assistance which only fleshed out some details; he had promised to give assistance. He gave that assistance. In a sense, the unreality in this case arises from the fact that the judge who knew all about the case and was ceased of the material, who was in the best position to sentence him, was Justice Grove, and yet he had already been sentenced long before by a judge who was quite unaware, who had not sat through the case, who had not seen him give his evidence, who had not seen how good his assistance was, who had not seen how serious the culpability of Savvas, who had not sentenced Savvas. So that is where, in terms of where something going wrong in the process, is the fact - - -

GUMMOW J: The Parliament needs to act in those matters.

MR GAME: Absolutely, your Honour.

GUMMOW J: Well it is shambles at the moment, conceptually, it seems to me.

MR GAME: Absolutely.

DAWSON J: Mr Game, in due course are you going to explain your diagram?

MR GAME: Yes. In a way I hope I have been explaining it as I refer to the figures, but I notice that the copies that you have received have had some of the entries cut off, but if you would look at the diagram, the first entry on - Postiglione is at the top and Savvas is at the bottom. The first offence for Postiglione is the conspiracy to import heroin; there is one for which he was sentenced firstly by Justice Roden and then by the Court of Criminal Appeal. That is a 12-year sentence with a non-parole period of 9 years. Then you go on that diagram to 7 May 1993, which is the date upon which Justice Mathews sentenced - - -

DAWSON J: So, the figure of 8 March 1999 is the head sentence, is it?

MR GAME: Expiry of the head sentence. Now, 8 March 1996 is the critical date in relation to that first entry, and that date is the expiry of the non-parole period for that sentence. Now, No 2 is the second sentence absent the allowance for section 21E. The period 7/5/93 to 8/3/96 is 2 years 10 months. That period is concurrent with the past sentence. From 8/3/96 to 6/3/2010 is 14 years; that is what the non-parole period would have been, and the head sentence would have been 21 years, which takes one from 7/5/93 to 6/5/2014.

Now, that is the sentence that her Honour would have imposed absent section 21E. Then the next one down is what she did take off for section 21E. That takes one through from 7/5/93 to a non-parole period of 6/3/2007, which is 13 years 10 months. But again allowing for the 2 years 10 months, that is 11 years, which is the operative number of years that we are concerned with in this case. It is to that figure that we would, for argument's sake, apply the section 16G factor to show error, which is that it is a non-parole period of, absent assistance, 16 and a half years.

KIRBY J: You date it from 8/3/96 in a notional sense.

MR GAME: Yes.

KIRBY J: But do you not have to take into account that the 8/3/96 was to be extended to 8/3/99 if there were any further offences, and there was?

MR GAME: Except that the sentencing law requires the fixing of the next sentence at the expiry of the non-parole period for the last.

KIRBY J: I see. That is under the Sentencing Act, is it?

MR GAME: Sentencing used to be under the Commonwealth Prisoners Act. When Part 1B was introduced, the Commonwealth Prisoners Act picked up State law for sentencing. Once Part 1B was introduced into the Commonwealth Crimes Act, that, in effect, was a code for sentencing of Commonwealth offenders and since that time, which is July 1990, all Commonwealth sentences have been imposed under Part 1B of the Commonwealth Crimes Act, and it is under that exceedingly complex regime that these inordinately complex exercises are conducted.

KIRBY J: That is explained how that came about in El Karhani, is it not?

MR GAME: Exactly, your Honour. El Karhani was one of the first cases through after the introduction of Part 1B. So, in nominal terms, the sentence which your Honour imposed was 18 years with a non-parole period of 13 years 10 months. It is those dates from 8/3/96 to 6/3/2007 which represents the period of custody purely referrable to this sentence, assuming he is deported on 6 March 2007, cumulative, and then one would add the three years had he not given the assistance.

KIRBY J: What is the three years again?

MR GAME: The three years is the three years that he would have served absent 21E, if he had not given the assistance. Then on his release, whenever that might be, Italy is the next figure that appears on the diagram, which is 6/3/2007 to 8/7/2012. We have put that there on the diagram on the assumption that he is deported at that time. This period of 11 years is served in what is called the special purposes prison. He is in strict custody. He has no possibility of classification. He is basically in isolation. So he is both in isolation and then knows that he has to go back to Italy for another five years, and he will be in his early 70s. He will have been in gaol from the time he was 41 until the time he is in his early to mid 70s by the time he actually has some prospect of release.

So, if one goes to the next entry on the diagram, the extension - if we start at the bottom, the first sentence that was imposed on Mr Savvas had a commencement date of 24 August 1988, it had a non-parole period of 18 years. That non-parole period was due to expire on 23 August 2006. The period to be eligible for parole was some 7 years, making for a total of 25 years. He was sentenced on 17 June 1994. He had served then 5 years 10 months. In effect, he was given an additional 5 years 10 months on his sentence and the whole of the period from 17 June 1994 until 23 August 2006 is to be served, in effect, concurrently with his other sentence.

DAWSON J: Mr Game, you said that sentences are to commence on the expiry of the non-parole period, but these sentences commence before the expiry of the non-parole period, if it is to be cumulative.

MR GAME: If it is to be cumulative, yes, your Honour.

DAWSON J: But you can make them concurrent?

MR GAME: I am sorry, your Honour. I am liable to make mistakes with this Part 1B of the Commonwealth Crimes Act and I apologise if I do. 17 June 1994 is the commencement date of the second sentence. 16 June 2012 is the expiry of that non-parole period, so his sentence has been extended by 5 years 10 months.

KIRBY J: That was the sentence of Justice Grove?

MR GAME: That is right. In effect then, leaving aside the 21E factor, the sentence of Postiglione or the extension of the sentence is nearly twice that of Savvas', yet Postiglione, according to Justice Badgery-Parker and according to Justice Grove - his case was more deserving of merit and, as we have said, we have adopted a point of about 75 per cent for the purposes of argument.

KIRBY J: Justice Badgery-Parker explained that by saying, "Well, you're dealing with two prisoners, different backgrounds of criminality, different sentences in the past and that is just how it falls, given their past convictions and sentences".

MR GAME: Yes, your Honour, but his Honour did not carry out the exercise of working out what the effect - first of all, Justice Grove did not identify what the sentence would have been absent totality in relation to Savvas, but Justice Badgery-Parker fell into error, in our submission, by not conducting the exercise, in effect, to which I have just gone through, which is analysing what the effect of the sentences are because his Honour said that:

The outcome does not result from any lack of even handedness in the sentencing for the instant case, but only from the prior custodial situation of each man respectively.

Well, if you are simply talking about custodial history, their custodial histories are very similar or, if you take only the Australian custodial situation - - -

KIRBY J: That is all this chart deals with, except for the little section of the Italian residue.

MR GAME: This chart will take you all the way through because it - - -

KIRBY J: But you have not started with an offence 1A, which is the Italian offence.

MR GAME: No, but I have got them both there with the Italian in the chart.

KIRBY J: Yes, but your client's criminality went back before this chart and that I think is what Justice Badgery-Parker was saying. You and Mr Savvas were not approaching it equally. You went back five years or so earlier, but you had served that when you were released because of the expiry of the time for the judgment of the Court of Cassation or whatever it was in Italy.

MR GAME: He had served four years in Italy - four or five years prior to his release and he has five years four months to go.

KIRBY J: So really if this chart were accurate there would be another line in it which would be 1982 and a line from there up until 1987 or whatever.

MR GAME: There would be a line that said 1980 to 1984, your Honour.

KIRBY J: Yes. Why did you not have that in the chart because that is a relevant criminal background of your client?

MR GAME: I am sorry.

KIRBY J: That is what Justice Badgery-Parker is saying. Your client came to sentencing with a different background of criminality and sentences. We have got to look at this problem, not just from the point of view of trying to fix up what you and the Crown say ought to be done in this case, but the principles that would be of concern to judges throughout the country.

MR GAME: Yes, quite, your Honour, but, in my submission, Justice Badgery-Parker was not there referring to the four years from 1980 to 1984. His Honour did not appreciate that what, in effect, was happening was that ultimately Postiglione, just looking at the Australian sentences, was being left in very much the same position as Savvas, yet in relation to both Australian sentences he was a person of substantially more merit.

DAWSON J: This can happen, can it not? I mean, imagine a situation where a man commits a series of offences and waits until he has completed his prison sentence before he commits the next, and you add up the sentences - let us say, they are 6 years each, until he has served 18 years in prison for those three sentences. Compare that with a man who does not wait so that he is in prison whence he is sentenced for the next offence and then in prison perhaps for that offence when he is sentenced for the next one, if that is possible, so that, by taking into account the fact he is serving a sentence in prison, he receives for the same offences a total of, let us say, 10 years, but that is the way the system works. Looking at those two men, you would say it is quite unfair that the first man served 18 years, whereas the second man served only 10 years.

MR GAME: Your Honour, parity - - -

DAWSON J: There is no parity there, the same offences.

MR GAME: Were they co-offenders or - - -

DAWSON J: No, no.

MR GAME: Parity is a specific principle that only applies to co-offenders so it is a principle of very specific - - -

DAWSON J: There is parity here as co-offenders. What you are talking about is previous offences where they were not co-offenders.

MR GAME: No, but, your Honour, my whole argument is that the previous custodial history does not explain the difference in the sentences.

DAWSON J: Why does it not?

McHUGH J: I do not think you can run the parity and the totality principle together, and it may be that in a case where the totality principle is applied, then you have just got to forget all about parity because, otherwise, it leads you into error. If you look at this, if there is any inadequacy in this, it is probably what Savvas got. Realistically, he has got 5 years 10 months. He is the one that seems to have got out of it well on that basis.

DAWSON J: In other words, the totality principle should give way to the parity principle rather than the other way around.

MR GAME: In my submission, if that is the case then, the totality principle should give way to the parity principle. It is hardly explicable to the offender - in my submission one can, in fact, apply both the parity principle and the totality principle, but if there is a conflict then the parity principle should be given precedence.

KIRBY J: Should it, given that at the heart of the totality principle is a sort of human right's notion that you do not crush a human being by a combination of sentences, however they arose. Whatever was the past, you leave out the prospect of hope and rehabilitation?

MR GAME: Quite, your Honour. But if you applied that principle in relation - what you have to do is, you have to apply the parity principle first and the totality principle last.

McHUGH J: But that seems to me to lead to all sorts of inconsistencies. Your client says, "I want the benefit of the totality principle, but once you apply that there is a disparity between me and the co-offender. Now I want to apply the parity principle to even it up even further." That seems to me to be the whole thrust of your submission.

MR GAME: Well, no, your Honour. As I said before - - -

KIRBY J: Can I just add to that, that what I do not see in your submissions, Mr Game, unusually, is any help to us in relation to what seemed to be the three principles that are at war here; parity, totality and reward, the reward being the reward that the Crown is concerned with of giving assistance to the Crown in the case. Now, there are three principles and, somehow, we have got to try to work out how they work together. I just do not see it.

MR GAME: Well, in my submission, I have tried to address that in paragraph 12, but perhaps if I could put to the Court how I would submit you should approach the sentencing if you did it absent all of the confusion that has reigned in this case to date.

McHUGH J: Well, your client might have much - he will not be aggrieved at Savvas, will he? I mean, Savvas has gone, possibly never to return.

KIRBY J: That is not a legitimate grievance of the kind that this Court was talking of, I think.

MR GAME: Well, we were not actually looking for that particular discount, your Honour.

KIRBY J: That is the chance principle. We put that out of - - -

MR GAME: Never to be seen again, I assume. I suppose one of the benefits of classification is that one finds oneself in a prison where one can achieve such an effect. But the approach that we would submit would be appropriate is this; firstly, it is quite inappropriate, obviously, to have them sentenced by different sentencing judges. The sentencing judge should work out what an appropriate sentence is for the principal offender, which is Savvas.

GAUDRON J: But realistically, that cannot be done, can it, when you have got somebody who is assisting the authorities?

KIRBY J: And that is contrary to principle - - -

GAUDRON J: They, in fact, have to be sentenced before they give their evidence.

KIRBY J: And if the judge of trial stood over the sentencing of your client, the Court of Criminal Appeal would come down on that judge like a tonne of bricks, because you may not stand over, you must proceed to sentence. Birlut is a recent case which says that.

MR GAME: Well, your Honour, it is simply not possible to conduct this exercise without at least approaching it theoretically and hypothetically on the basis which I am about to put in my submission.

GAUDRON J: But it is often the case, is it not, when you come to questions of parity, that they have been sentenced by different judges, and it has been precisely in these circumstances, and precisely because they had to be sentenced before the trial of the other could proceed, and that is how it works out.

MR GAME: Yes.

KIRBY J: That is why your suggested principle is completely unhelpful to the Court because it makes assumptions that simply cannot and should not happen in the criminal process.

GAUDRON J: Except, of course, you could point to what should have happened in the Court of Appeal thereafter.

MR GAME: Yes, your Honour.

KIRBY J: But we have got to really, I think, try to help the sentencing judge.

MR GAME: Well, your Honour, what I am trying to do is to identify, hypothetically at least, and I know it may sound unhelpful, how one would go about sentencing in this case having regard to the situations of both of the offenders and assuming, at least, that Postiglione's sentence is not beyond review after Savvas has been sentenced, and that is what has happened in this case. It has not been beyond review for particular reasons.

GUMMOW J: By chance.

MR GAME: By chance but, your Honour, one runs into an impossible problem having regard to the decision of this Court in Mickelberg if one then launches a special leave application based on a co-offender's parity, because co-offender parity, in effect, could be likened to fresh evidence and the Court would be unlikely to entertain a special leave application based on a subsequent sentence if the co-offender's sentence produced such disparity after the principle had - - -

GAUDRON J: But it is inevitable that that is when the parity question arises.

MR GAME: Quite.

GAUDRON J: So, really, what we have got to be concerned about in this case is not the guidance for the sentencing judge but for a Court of Criminal Appeal where there is a disparity.

MR GAME: Exactly, your Honour.

KIRBY J: But unless we give guidance, in effect, to sentencing judges, the problem will keep coming up to Courts of Criminal Appeal, because what they have got to do is to say what is the error in the exercise of the discretion of the sentencing judge. That is all they are there for.

GAUDRON J: Your answer to that surely is that the problem is inevitable. If there is disparity, it will always happen when it has gone beyond the sentencing judge.

MR GAME: Yes, and if it is an aspect of the system that not only is the sentence imposed but that the appeal is disposed of, then, subject only to a failure to perfect the order of the court and bearing in mind the decision of this Court in Grierson v The Queen, that would be an unreviewable decision. So, unless the Court revisited Grierson v The Queen, which is a very old authority, it would be the end of the case subject to an inquiry or something else that would enable the sentence to be reviewed.

KIRBY J: Let us go back to your paragraph 12, assuming that what Justice Gaudron has said is right, but if you look at that, you say, "Ignore his custodial history". That would be a total revolution in sentencing.

MR GAME: But all I am doing is, your Honour, trying to for a moment break up what the processes are of sentencing. I am not attempting to do anything else. What I am saying is this, and these are some figures I mentioned before. Perhaps if I could just hand the Court this decision of Ng, which is a Court of Criminal Appeal decision which is authoritative in relation to these lengthy terms. That was a case involving some 38 kilograms of heroin, and at page 6:

The application of s16G to an indeterminate sentence raises a problem, and neither counsel have been able to submit any possible alternative solution to that problem other than to take the course of paying regard to the experience and practice in relation to terms of persons sentenced to indeterminate sentences prior to the enactment of this amending legislation, and to endeavour to make a judgment as to the consequences of the operation of a system of remissions against that background.....However, I consider that it is reasonable to begin with the proposition that the objective circumstances of the case which if they stood alone merited a head sentence of imprisonment for life, in the light of s16G should be taken as warranting a head sentence of twenty years imprisonment.

And that is before subjective features are taken into account. Nobody has suggested, and in fact, Justice Mathews considered the matter and rejected it, that either Postiglione or Savvas should otherwise have received light sentences.

KIRBY J: I think somebody mentioned it that it was available but rejected it. Is that not correct?

MR GAME: It was suggested but put to one side by Justice Mathews. The figures that I was mentioning before were, in my submission, shall we say, conservative figures for Mr Savvas for his criminality in relation to this offence, and they just happen to be the same figures that his Honour extended the sentence by. Commencing figures, prior to section 16G of 25 with a non-parole period of 18. Section 16G works on that sentence to reduce it - the head sentence to 16 and a half with a non-parole period to 12. That is step one and that is before you make any allowance for him for totality.

In relation to Mr Postiglione applying the parity principle to him vis-a-vis Mr Savvas' sentence, that would produce a starting sentence of 18 and three quarters years with a non-parole period of 13 and a half. Again, still no reference to totality. That is simply looking at the culpability alone and the proportional relationship between the seriousness of their conduct. These figures, in my submission, once again, are conservative. That then, on section 16G would produce a figure of 12 and a half with 9. Then in relation to each of them the sentencer would then say, "What allowance do I make for totality, having regard to his custodial circumstances?". In my submission, there could be no objection to approaching it in that way. In the case of Postiglione, you would be looking at a downward adjustment from 9. In the case of Savvas, you would be looking at a downward adjustment from 12.

GAUDRON J: You say just the sentence rather than backdate it?

MR GAME: I am just looking at the pure mean sentence, your Honour, but accumulated, yes. In my submission, that particular approach to the problem is correct. All that is left is the possible and controversial question as to what allowance you make for totality in relation to each. We say their custodial histories are roughly equivalent, but if that is rejected, and one says, "They have different custodial histories", then all that does is produce a different allowance downwards for totality in relation to each.

In the case of Savvas, it may be that on those figures he then received a downward adjustment of 6 years for totality. In relation to Postiglione, one might say, "His custodial history is different; there are various different features; we will only reduce it, shall we say, by 3 years or whatever, which is 50 per cent of the deduction given to Savvas". But again, we would submit, there is no error in that approach. You have achieved a sensible sentence for both of them and you have approached it from principle by working out what the appropriate sentence was for each of them to start with, bearing in mind parity. You have given proper regard, but differing regard in relation to each case for the totality principle.

In my submission, that is the correct approach to take. The result of that approach would be whatever downward adjustment you make for Postiglione for totality and, in my submission, I would suggest something in the order of, say, half of the allowance that was made for Savvas, which is 3 years - Savvas gets an allowance of 6, so that, in effect, they end up with about the same non-parole period extension. There can be no complaint about any of those steps.

But the Court of Criminal Appeal fell into error because they did not even analyse what the problem was or where the question would take them. The result is that parity was never addressed in relation to Postiglione at any stage. It could not have been addressed by Justice Mathews. Justice Grove saw the problem but, obviously, he could not deal with it because he was sentencing Savvas and the Court of Criminal Appeal simply did not address it. Now that really is the argument that I wish to put to the Court and that is the approach that I would submit is the appropriate approach to take to the case. The differing ways in which I have put the problem and the solution to the problem, in my submission, demonstrate the way in which the error has occurred.

GAUDRON J: Can sentences be backdated?

MR GAME: Yes, your Honour.

GAUDRON J: There is no prohibition on that?

MR GAME: No, your Honour.

GAUDRON J: And you could have achieved the same result in this case by backdating to give some proportion of the sentence being served concurrently with that which was to be served concurrently by Mr Savvas.

MR GAME: Yes.

GAUDRON J: But you say the preferable course is to do it the other way?

MR GAME: Yes, but it comes down really to numbers, just to how you approach the problem in a particular case, your Honour. I am not quite sure that I have fully answered that question.

GAUDRON J: Yes. Well it is just that Mr Savvas had 19 years of his concurrent and your client had 2 years and 10 months concurrent.

MR GAME: Quite. That is a central part of our argument.

GAUDRON J: Yes. Which problem could be rectified to some extent by postdating the sentence.

MR GAME: Yes.

DAWSON J: But there is a limit to that. How far could you have postdated it in this case?

MR GAME: It could have been at any time prior to 23 August 2006. It could have been 23 August 2006. His sentence could have been ordered to commence on - - -

DAWSON J: Postdated is probably wrong; antedated.

GAUDRON J: Antedated.

MR GAME: Yes, I beg your pardon.

DAWSON J: Up to the time of the offence.

MR GAME: Yes.

DAWSON J: Or at the time of the offence.

MR GAME: Yes, that is quite correct.

KIRBY J: Can I just clarify it in my own mind. Your steps are: one, you work out what is the total sentence suitable to the objective circumstances of the case; two, you apply the federal factor in 16G to reduce that; three, you then apply a totality principle. Is that all that you do?

MR GAME: You apply a totality principle to that individual but, quite separately and independently, you have applied the parity principle to the co-offender so that you have parity of sentences at the commencement identifiable - - -

KIRBY J: Presumably you apply the parity principle before the totality because you look at what results from the adjusted downwards objective factor and then you apply the parity principle, and then you look back at it all and see if this is going to be too much for the totality of the criminality and to crush the particular offender.

MR GAME: Exactly, your Honour.

KIRBY J: So they are the four or five steps that seem relatively logical.

MR GAME: Yes, and that last step is an individual step in relation to each offender. That last step involves separate considerations.

KIRBY J: But lurking in that last step is still the question Justice McHugh raised at the beginning and, really, it is in Justice Badgery-Parker's judgment for the Court of Criminal Appeal that when you come to look back you will never get two people who are exactly the same, and here you get a person in the case of your client who did have a different criminal history including a quite significant criminal history in Italy, which he had not yet completed serving.

MR GAME: Quite, your Honour, but, as I said before, he is entitled at the least to the commencing point of parity. That is to say, there is no doubt that the co-offenders in this case, it is necessary to strive in the first - they may produce different sentences and, ultimately, parity is a question of making sentences comprehensible to co-offenders and if totality produces a different result at the very end then it has to explicable. What has occurred in this case is not explicable for the reasons that I have given but, as I said before, also, it is the bare application of the parity principle to a proper sentence for Savvas, immediately takes one to a sentence for Postiglione which is substantially less than the sentence that was imposed, putting aside totality altogether and resultant sentences altogether for each of them, but looking at it from the primary point of view.

GUMMOW J: How would all this work out, Mr Game, on the facts of this case if the orders of the Court of Criminal Appeal on 13 December 1993 had been entered? This case before us is a freak.

MR GAME: We discovered in the course of preparing this case that none of the orders of the Court of Criminal Appeal are ever - - -

GUMMOW J: I know that, but what would have happened if they had been entered? How would these principles then work and you had sought special leave from the 1993 orders of the New South Wales Court of Criminal Appeal and are being heard today?

MR GAME: We would have had to argue that Mickelberg was not to be followed in relation to circumstances such as these.

GAUDRON J: But if you look at it from the point of view of the Court of Criminal Appeal, one answer may be that criminal appeals should not be heard until such time as the principal offender has been sentenced.

MR GAME: Yes.

GUMMOW J: So should not the people on 13 December have got it stood over?

KIRBY J: But they may have an appeal against conviction, may they not, and they may not want to wait until - - -

MR GAME: No, there was no appeal against conviction.

KIRBY J: It is not here, but may you not sometimes have that?

MR GAME: In my submission, the approach that has been suggested by Justices Gaudron and Gummow is the solution to the problem, which is that you get sentenced prior to giving evidence. You have a sentence which is a final sentence for those purposes, but your appeal is stood over until after your co-offender is sentenced.

KIRBY J: We would have to be careful about that because this week we had a case involving Mr Barbaro and he has not yet been finally sentenced about 10 years after the offences. Now, you cannot really ask the Court of Criminal Appeal to stand over a person's appeal for a period longer than is just.

MR GAME: All they have to do is not perfect the order of the court in that case, but if you have a situation where the court's order is perfected, you have a principle such as Jones, you have a limitation on fresh evidence applied in Mickelberg, then you have closed every single avenue of reviewing a sentence for the purposes of parity, unless you open up the Mickelberg principle in relation to cases involving what is not strictly fresh evidence, but the application of new events relating to the sentencing of a co-offender.

GUMMOW J: One cannot have instructed that one invites appeal to this Court continually under that special jurisdiction.

MR GAME: No, of course, your Honour.

GUMMOW J: It has to be able to be sorted out at the State level, the intermediate level. That is what has to be sought, some solution there.

MR GAME: Yes.

KIRBY J: Mr Game, my note, therefore, is your steps are five: objective sentence; the federal discount, 16G; the subjective or reward factors in the particular case; then look at parity; then look at totality. Is that correct?

MR GAME: Yes, that is correct. The third one is the subjective one that produces parity - produces whatever the parity result is. But, your Honour, referring to subjective material, that is to say the assistance and so forth that produces the material upon which one then is directed to parity, yes. That approach would produce a proper sentence in relation to both offenders.

KIRBY J: That is assuming that the other offender wants to appeal. He might get a generous judge and walk away with a - it is inherent in the process of separate sentencing.

MR GAME: There is one matter that I should have raised in relation to a question raised by your Honour Justice McHugh, and it is a long-standing - - -

McHUGH J: Is there not a sixth step, that you should then review the individual sentences to see whether or not it fits the crime? I mean, this could lead to a situation where somebody gets 18 years and somebody gets 2 years, although their criminality is almost the same.

MR GAME: You would have to have a sixth step that requires you to review the whole situation. But if you have followed the steps judiciously, then hopefully you would not have reached that particular result. Could I just say one thing about the sentence imposed on Savvas. The Crown did not appeal that sentence, and there has never been any argument or suggestion that that sentence was inadequate. But, in any event, Justice Mason's judgment, at least in Lowe, would support the proposition that parity applies even in the case of a manifestly inadequate sentence.

There are really four different points of view expressed in Lowe: your Honour Justice Dawson's, Chief Justice Gibbs', Justice Mason's and Justice Brennan's, and they all speak in different ways in relation to this particular question.

KIRBY J: I suppose, in the nature of things, this problem will present itself quite often because of the federal factor, drug offences, one person co-operates, gives evidence, you discount. I do not imagine this is a completely unique case.

MR GAME: What happens in this case is a repeating feature of Commonwealth sentencing and what happens in relation to large Commonwealth drug trials. The specific circumstances of this appear are unusual, but the overall - - -

GUMMOW J: Because we have got the whole story before us in the proper form.

MR GAME: Sorry?

GUMMOW J: We have got the whole story before us, and in a proper form; that is what is unusual about it.

MR GAME: Yes. Now, with respect, there was one aspect of the argument which I may not have addressed in sufficient detail, but with respect to the Italian conviction, we submit there is an aspect of that that would produce a downward adjustment. Firstly, as I said before, the second sentence was already aggravated by that factor but, secondly, he is in protection now, he knows that he has got to go back to Italy for five years, and that makes matters worse, but we would submit that there is another way of approaching totality in relation to him and in relation to Savvas.

It is a matter that I raised before, which was that the totality of the criminality, if one looks at it from that point of view in relation to the Australian offending for Postiglione earned him half the sentence at first and then he should have, shall we say, before any of the other considerations received something like three-quarters of the sentence of Savvas and yet he ends up, just looking at the Australian sentences, in a comparable position to Savvas. We submit that, in itself, demonstrates that error has occurred in the process.

McHUGH J: The only error seems to me to have occurred with Savvas at the moment. I mean, Savvas' sentence should have started years ahead.

KIRBY J: I suppose you can say that if that is then a factor which we now know and which the Court of Criminal Appeal knew, it is a factor that had to be taken into account as being one of the ingredients that can cause a legitimate sense of grievance, that at the end of the justice system, he who gave all of this co-operation, walks away with a heavier sentence, and I think that is what concerns the Crown.

MR GAME: Yes, your Honour, but firstly I would submit that the Court should follow Justice Mason's judgment in Lowe but, in any event, as I have said, nobody has suggested that the Crown has not exercised its rights to appeal that sentence - - -

McHUGH J: I know that, but if Savvas' sentence had started from 23 August 2006, you would have had some problems, would you not?

GAUDRON J: You might not have had a sense of grievance.

MR GAME: Mr Savvas would have appealed with a sentence that was absurdly long, which would have been of no further concern to him because he would still have been overseas. But there is another aspect to this which is this, that if you end up on the specific figures - I should say I agree with and put to the Court the very proposition your Honour Justice Kirby has just put, that whether it is inadequate or not, it is the sentencing factor which is relevant to the question of grievance held by Postiglione. But if, ultimately, in this particular case, one says, "Well, we'll throw away Savvas' sentence but let's see what Savvas should have got, let's see what Postiglione should have got relative to that and accepting the 75 per cent in the Court of Criminal Appeal", it still demonstrates error in the sentence. So, in a sense, you can throw away both parity and totality and still demonstrate error with this sentence.

KIRBY J: Yes, but, Mr Game, on your hypothesis, somebody is going to have to resentence your client, and therefore it is important that the principle should be got clear. You do not make it clear in your orders that you seek, who is to have that happy obligation. Are you suggesting this Court do that, or is it a matter that should be sent back to the Court of Criminal Appeal to perform?

MR GAME: We would submit that it would be appropriate for this Court to resentence - - -

DAWSON J: It is unlikely to do that, Mr Game, and you can proceed on that basis.

MR GAME: In those circumstances, there is nothing further that I would ask the Court to do than to identify the principles and uphold the appeal and remit it to the Court of Criminal Appeal for resentencing in accordance with the statements of principle. Those are my submissions.

DAWSON J: Thank you, Mr Game. Mr Hastings.

MR HASTINGS: Your Honours, in our submissions we have repeated the quotation from the South Australian case of Tiddy which was, in fact, referred to in the Court of Criminal Appeal judgment because it uses the word "punishment" in the context of disparity. The paragraph 6:

Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.

It is the emphasis upon the practical effect of this sentencing process which, we submit, is important when it comes to the realisation that Mr Postiglione received a punishment in practical terms of 11 years, whereas the punishment on Savvas was nearly 5 years and 10 months. In a way, that is simplistic, but nevertheless it is the bottom line, and one can imagine if the two men retired to their cells at the end of these proceedings and compared notes Mr Postiglione would have a proper sense of grievance, in our submission, to find that he had received - - -

McHUGH J: But why would he?

MR HASTINGS: Because he is less culpable; he has co-operated with the authorities; he has caused himself to be held in a special protection for the rest of his sentence.

McHUGH J: But it is because they have totally different backgrounds. What has the parity principle got to do with in this sort of situation, at all. It may be that that ought to be jettisoned because it really is inoperative. If you are going to take into account totality; different criminal histories; different sentences that people are serving, or are about to serve, or will serve, then you are not going to get much assistance from parity. It does not seem to have much part to play.

DAWSON J: No, totality is utterly inconsistent with parity because their backgrounds are simply not equal.

MR HASTINGS: Yes, I accept the two principles are parallel and do not overlap, but it does not mean they are not capable of application in the same case. It is a matter of degree obviously, your Honour.

McHUGH J: I am not sure about that. I mean, for something to be comparable you have got to be measuring the same thing and you are measuring here apples and oranges.

MR HASTINGS: We would submit on the facts not so, but there are differences in their criminal backgrounds, but if one aggregates the criminality of Mr Postiglione by virtue of his Italian conviction and his previous Australian conviction, it puts him roughly on a par with the gravity of the conviction for which Savvas was sentenced.

McHUGH J: But what is the perception of the general public? What would the general public think of a situation where somebody gets a sentence of two or three years for this serious crime, if that is the result of applying the totality and parity principle? Confidence in the administration of justice in the courts will not last very long if that is the result.

MR HASTINGS: Your Honour, we would see it from a different perspective, although not entirely different, that the narrower group of the public, namely, offenders who may be inclined to co-operate, would similarly be unimpressed by the result if they were mindful of adopting the same course because of the poor treatment handed out to Postiglione because they would perceive the position to be a person who is said to be less culpable and who co-operated receiving in the end result more for his offence than the man who did not co-operate and who was convicted after a trial.

McHUGH J: I think this is a totally false and irrelevant argument because they will still get some reduction on their sentence because of their co-operation and it can have nothing whatever to do with what Savvas got and if Savvas had got off with a bond, do you think it would have made any difference to Postiglione? He was still giving what evidence he was prepared to give because he knew it would reduce his sentence, whatever it was.

MR HASTINGS: But on the assumption that it might not be totally out of the question that if they were to re-offend or Mr Postiglione was to re-offend, you can bet your life he would not co-operate again after the way that has been treated in this case?

McHUGH J: Why?

MR HASTINGS: Because he has done what he could to assist. He has shown contrition and all that sort of business, whereas his co-offender, who did not, ended up getting a better deal than he did.

GUMMOW J: But he still would have been worse off.

McHUGH J: He would have even been worse off if he had not informed.

MR HASTINGS: Well, not much and he probably takes the view that spending the 11 years additional - in fact, it is more than that, it is the 13 years. Once he had co-operated and was transferred to the special purposes unit, it was a worse penalty than spending the time in the open prison where he would have been able to take advantage of the education and other programmes which are now limited to him.

McHUGH J: But the problem, if there is one in this case, arises because the Crown did not appeal against the backdating of Savvas' sentence.

MR HASTINGS: Well, yes. Well, in our submission, it is both. It is the fact that at the end result Savvas' sentence seems to be lenient and Postiglione's seems to be harsh and by the operation of both factors the disparity has arisen which, in our submission, gives him a justifiable sense of grievance.

DAWSON J: It is not the sentence that is lenient. It is the totality you are talking about always when you are talking about leniency, is it not? I mean, the sentences when you look at them by themselves are perfectly explicable and there is no lack of parity. You mean the totality does not reflect parity. The totality - this is what is being put to you, I suppose - the totality does not reflect parity because what goes into the pot so far as totality is concerned is something different in each case.

MR HASTINGS: Yes, I accept that.

GAUDRON J: But the word of course used in Tiddy, which is where you started his punishment, and if you look to punishment for the particular offence rather than the head sentences or the non-parole periods or what have you, you do approach it from a different perspective.

MR HASTINGS: Yes, that is our preferred position, your Honour; we just think on a practical level, after all the rationalisation, the bottom line is - - -

DAWSON J: But then you have to ask, what is meant by punishment, and you come back to the question, do you mean by punishment the actual sentence for the crime or the totality. Now what is being put to you - - -

GAUDRON J: Or the period in which you will, in all probability, spend in gaol for the offence.

MR HASTINGS: We would say, the net result of being re-sentenced which, in his case, is an additional - - -

DAWSON J: You are looking at totality then.

KIRBY J: My understanding is that a judicial officer's duty was to work out what was the proper sentence and then to look back at it for totality, and it may be that this is what Justice Dawson is putting to you, that that is what you are submitting, that what happened here is that the Court of Criminal Appeal, with the benefit of the knowledge of what had happened to Savvas, did not then look back with sufficient clarity to whether the resulting outcome was, especially taking into account co-operation with the authorities, a total sentence which was crushing and unfair and breaching the parity rule.

MR HASTINGS: Yes, indeed your Honour. We would say that having adopted the punishment concept and looked at what appears to be, in our submission, a disparity between the treatment metered out to the two men, the task then is to identify why that is so, and I think as the current Chief Justice said in Lowe's Case, sometimes a disparity sharpens the interest or heightens the interest in the sentencing process involving the particular applicant and, for much of the reasons advanced by my learned friend, we would submit that when one goes back to Postiglione's sentence one can see why, in the end result, it is probably too high.

McHUGH J: Well then, having regard to what Savvas has got, just give us some ball-park figures for Postiglione; what should he have got, do you say?

MR HASTINGS: Well, we would submit, in the bottom line, something around 6 years. We would say that - your Honour looks aghast, but I can say from experience that those are the sort of sentences now being imposed on major drug offenders who co-operate, and it is very much a process of the discount procedure, because, even if you start with very huge sentences, such as 30 years, which, as an objective assessment of culpability of an offender, is a very huge sentence, and then apply section 16G, you get to 20 years. If you then adopt what has been approved generally as being appropriate for someone who co-operates fully, say 50 per cent, the head sentence drops to 10 years. So that by the time you apply a non-parole period to that head sentence, you are looking at sentences for major offenders of 10 years head sentence and 6 years minimum term.

McHUGH J: It is no wonder law and order is such an effective political tool in election campaigns, Mr Hastings.

MR HASTINGS: Your Honour, what also has to be acknowledged is that now, of course, that is real time, and the old days pre-Sentencing Act of six years being not six years, that is, a minimum term of imprisonment to be served to that very day which is specified by that order. I do not know what your Honours' views are, but six years seems like a very long time to me in imprisonment. It would deter me.

McHUGH J: It certainly is. Two days would be.

MR HASTINGS: Then, having said that, can I turn to this case. We would share Mr Game's view that when one looks at the way in which her Honour approached the original process it does seem to be flawed. As he has pointed out in Ng the Chief Justice identified 20 years as being the calendar equivalent of an indeterminate sentence of life. She, having rejected life, nevertheless, started at 21 years, so at the outset she seems to have started too high. So, if you come down to something less than 20 years as being something less than life, you start at about 18 years. By the time you then apply section 16G and - that is after section 16D - by the time you then give due acknowledgment for a plea of guilty and a discount for co-operation it has the result of bringing the sentence down to something like 12 years or 10 years with a non-parole period of six or seven.

Having said that, your Honours, taking up the point I was making about the disparity, perhaps causing attention to be focused on the sentencing process, if one does adopt the procedure which I have just outlined, one can discern at the first level of identifying the nominal head sentence an apparent error in that her Honour has gone above what is regarded as being the equivalent of life, and, secondly, in so far as she gave a discount of three years, which we would say seems to be modest given the circumstances, then applied the 50 per cent which would encompass both past co-operation and future co-operation, one can identify another error which would bring the figure down to something more realistic which has the result, as it turns out, that even adding to the 2 years and 10 months would certainly reduce the disparity and reduce the level of difference to a point at which Mr Postiglione could no longer have a proper sense of grievance.

DAWSON J: Putting aside the errors which you have just identified in Postiglione's sentence, when you talk of disparity in comparing the two sentences, what you are talking about is merely disparity in the extra time each has to spend in gaol.

MR HASTINGS: Yes.

DAWSON J: That is it?

MR HASTINGS: Yes, your Honour, the punishment.

DAWSON J: Yes. Well, in one sense it is the punishment but in another sense it is not because the former punishment is punishment for something different, but I know what you say and we are going over the same ground again, I concede.

MR HASTINGS: Your Honours, my learned friend pointed, or referred generally to the complex provisions in Part 1B of the Crimes Act. Perhaps I ought to specifically remind you of the provisions of section 19AD which, in a way, is a statutory totality provision. Your Honours, from time to time, have queried the frequency with which this problem arises. In many respects, this is quite an unusual case at the basic level; it would be relatively unusual to find offenders in custody re-offending. I am not saying that is an unprecedented event, but certainly in the way in which - - -

McHUGH J: Well, it is fairly common, is it not, in terms of assault and murder?

MR HASTINGS: Yes, but what is more specifically unusual, I submit, is that they have committed two federal offences, which specifically brings them within the provisions of section 19AD, which deals with the question of the fixing of a non-parole period for someone already serving an existing federal sentence. Your Honours will see that in (2):

Where this section applies -

that is where the court fixes a non-parole period while the offender is serving an existing non-parole period -

the court must, after considering the relevant circumstances, including:

(a) the existing non-parole period; and

(b) the nature and circumstances of the offence or offences concerned; and

(c) the antecedents of the person:

do one of the following things:

(d) make an order confirming the existing non-parole period;

(e) fix a single non-parole period in respect of all federal sentences -

or -

cancel the existing non-parole period and decline to fix a new non-parole period.

At all. So, in that sense, the statute requires a form of totality to be addressed. I am not saying that changes the situation greatly, but it perhaps does identify where - - -

GUMMOW J: Is there any statutory reflection of parity principles?

MR HASTINGS: No, your Honour, no.

GUMMOW J: In this part?

MR HASTINGS: No.

KIRBY J: I get the impression that the attitude of the Crown has changed between the Court of Criminal Appeal and this Court.

MR HASTINGS: It has found, in the practical consequence - I think, in principle, we made the same concessions but, as the Court pointed out at the time, we were somewhat less than precise about what we saw to be consequences of those concessions. We now have taken the point that given the concessions, if those concessions be valid, it would entitle the Court to grant relief.

KIRBY J: Looking at the matter conceptually, do you agree with the suggested six steps that were ultimately elicited from Mr Game?

MR HASTINGS: Not entirely, your Honour. I would agree with them as the steps. In my submission, I would reverse four and five.

McHUGH J: I thought you might.

MR HASTINGS: And address totality first and then look at parity next, and I accept your Honour Justice McHugh's point that, at the end of the day, there must be a re-assessment to ensure that what is imposed is not what the Chief Justice in New South Wales describes as an affront to standards of the community - - -

DAWSON J: Does that mean that you would espouse parity and totality?

MR HASTINGS: I am sorry, would espouse both?

DAWSON J: The principle of parity and totality? In other words, a parity in the extra time that each has to spend in gaol.

MR HASTINGS: Yes, your Honour, yes.

DAWSON J: Because that is what it means, does it not, subject to an overall review.

MR HASTINGS: Yes, in an informal sense. At the end of the day, there are these two final reviews to be conducted, in our submission. One is to look beyond the position of the offender in question to see whether there is a disparity with the others who were sentenced for the same offence, including the totality factors applicable to both, and then the second review is that to which Justice McHugh has referred of ensuring that the final result does not constitute an affront to community standards.

KIRBY J: Is that in Ng, is it, Chief Justice Gleeson's statement?

MR HASTINGS: No, I am sorry, your Honour, I was about to give you the reference to Gallagher. I think it is on our list of authorities, Gallagher (1991) 23 NSWLR 220 at 232.

KIRBY J: The reason I suggested that totality would come after parity is that my understanding was that totality was doing something akin to what Justice McHugh referred to as the Gallagher-type principle, that at the end of the process you look back and you ask yourself, "Is this, looking at its totality, so great that it crushes the particular offender?" Now, that is something you cannot do until after you have applied the parity principle and reached the conclusion as to what is your proper sentence taking into account the totality and then perhaps apply the Gallagher test.

MR HASTINGS: Yes. It may harken back to the dilemma that you referred to earlier as to the effect of the totality principle. My perception of it was that it was a subjective process confined to the antecedents of the particular individual.

KIRBY J: This is inherent in sentencing because it has the dual operation of so-called objective and subjective factors. The totality falls upon the combination of the two.

MR HASTINGS: Your Honour, we had rather seen parity as being the principle which applies in that context.

KIRBY J: But you do not know what the total is until you have applied the parity.

MR HASTINGS: The same may be said of the other procedure, may it not, but you do not know what the total for the individual is until you have assessed his - - -

KIRBY J: You do not know the parity until you have the total.

MR HASTINGS: Yes. In the end result it may not matter. In our submission, there is a difficulty in becoming too rigid and formal in the process, and at the end of the day it is not a procedure which is capable of such a rigid formulation. As we put in our submission, the final step really is to enable the sentencing judge to take into account the broader matrix of circumstances which he must perform with some difficulty in order to achieve a just result with regard to the individual and as between the co-offenders, as well, and as with regard to the interests of the community, also.

GUMMOW J: Six steps will produce more appeals, will it not, because it will be said judges have not followed the steps properly? There will be a plethora of sentencing appeals, will there not?

MR HASTINGS: Maybe not, your Honour. The approach taken by - - -

KIRBY J: I think some of these of these steps are perfectly orthodox steps that judges have to take anyway. There is nothing new in looking at what.....and there is nothing new in taking into account the subjective circumstances. Parity is an established principle. Totality is an old-fashioned principle. All that is new in that is section 16G which is a special federal statutory division that cannot be avoided anyway.

MR HASTINGS: Yes. Your Honours, can I just say as a matter of general impression that there have been authorities which justify sentencing judges taking a rather global approach to fixing terms, both as to head sentence and - - -

GAUDRON J: Authorities favour with that approach, do they not? The authorities in this Court favour that approach?

McHUGH J: In the good old days, that is what judges did.

MR HASTINGS: Yes.

KIRBY J: It is what they used to do in damages too and now we have become a little bit more normative. The rule of law generally requires normative treatment.

MR HASTINGS: Well, my impression is that notwithstanding dicta to that effect, the practice, particularly in Commonwealth matters in the last couple of years, has been to adopt the opposite approach of taking a rather arithmetic formula to fix a bottom line sentence and non-parole period and again I say this without the benefit of statistics but my impression is that it has led to more certainty in terms of the process being adopted - - -

KIRBY J: My understanding is the thrust of the new path is to try to get that because judges are taken through about 15 things they have to take into account when they sentence a federal offender.

MR HASTINGS: Yes, and despite the somewhat intimidating initial impression, it is not that complex when it can be presented properly and it then does give the sentencing judge a quite clear indication of the steps he should follow to comply with the legislation and the other common law principles of sentencing in order to reach a result and I was simply going to say my impression as being contrary to what your Honour suspects, that it has led to more precision and perhaps less appeals then one might otherwise - - -

GUMMOW J: I was talking about what would happen if the six - the new six, whether they have got old integers or not, as extracted from Mr Game, has applied in the said case.

MR HASTINGS: Well, one can then speculate but my analogy was intended to perhaps encourage the Court to indicate that it may not generate the sort of appeals that you would suspect. But unless there is anything else with which I can assist the Court, they are our submissions. May I just have a moment, your Honour? Yes, thank you, your Honour.

KIRBY J: Is the net result that you have firmed to the position that the Crown supports the allowing of the appeal?

MR HASTINGS: Yes, your Honour, yes and perhaps our reluctance on the last occasion was caused by an endeavour to identify something in the case which would meet the usual special leave expectations of this Court and, in the end, we still have difficulty finding the matters of principle that your Honour sought earlier from my learned friend but nevertheless the fact seems to remain that when one focuses more carefully on the plight of Mr Postiglione, he has ended up in a position which we say is unjust and as a court of last resort may warrant this Court intervening.

DAWSON J: Thank you, Mr Hastings. Mr Game, I do not know whether you really have a right to reply, but is there anything else you could say?

MR GAME: I only wanted to say that the introduction of steps in the way that has been elicited from me by Justice Kirby is really an inevitable part of the sentencing process, having regard to the provisions of Part IB and the particular circumstances relating to both the offenders and the factors that have to be taken into account in relation to each of them. There is nothing controversial about any of the steps.

Secondly - and in a sense I am repeating myself - but parity still applies, notwithstanding considerations of totality, and that can be seen by the way in which I have shown in paragraph 8, that, in effect, Postiglione started off 9 years better off, in terms of custodial situation and it was blown away by the sentence that was imposed on him by Justice Mathews. Those are my submissions in reply, if the Court pleases.

DAWSON J: Thank you, Mr Game. The Court will consider its decision in this matter.

AT 4.11 PM THE MATTER WAS ADJOURNED