Rexhaj v The Queen S41/1996 [1996] HCATrans 384 (30 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S41 of 1996

B e t w e e n -

PETRIT REXHAJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 12.26 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, in this matter, I appear with my learned friend, MR A.C. HAESLER, for the applicant. (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR R. KELEMAN, SC: If it please the Court, I appear for the respondent. (instructed by S. E. O'Connor, Solicitor for Public Prosecutions, (New South Wales))

BRENNAN CJ: Yes. Mr Byrne.

MR BYRNE: Your Honours, this application raises a question of what, we would submit, is a question of general importance in the administration of criminal justice concerning the application of the principle of parity in sentencing. The specific question raised, your Honours, might be formulated in this way: what is the proper approach to be taken by a judge called upon to sentence a person, where a co-offender of that person has already been sentenced and the judge considers the sentence imposed on the co-offender to be inadequate? In our submission, your Honours - - -

BRENNAN CJ: It is not a question of being inadequate. It is a question of whether, if the relevant offender is given a condign sentence, whether the existence of the other sentence, the lighter sentence, might justifiably engender a sense of injustice. Is that not right?

MR BYRNE: That is, with respect, your Honour, the proper principle, but that is not the principle that came for determination in this case. The circumstances as they occurred in this case, your Honour, were that the co-offender had already been sentenced. The two offenders were, for all relevant purposes, for the purpose of sentence, equivalent, in our submission.

Your Honours, will recall the facts that there were two men in custody in jail. They escaped together and they were both recaptured; one of them, not this applicant, was recaptured by way of arrest. This applicant surrendered himself at the gates of the prison. They came before the respective courts which sentenced them, as, in our submission, approximately equivalent offenders. In those circumstances - - -

BRENNAN CJ: But were they not under different sentencing regimes?

MR BYRNE: They were, in a sense, under different sentencing regimes but they were sentenced, as it were, within the same jurisdiction. It was not the same distinction that exists, for example, in a matter that this Court dealt with by way of an application for special leave in the case of Diamond, where one offender was dealt with as an adult and the other offender was dealt with under the Children's Court legislation. It is true to say, as your Honour the Chief Justice points out, that one of these men was dealt with in the District Court and the other was dealt with in the Local Court. But that has not, according to the authorities, we would submit, deal with this principle, then seen as a relevant point of distinction for the purpose of the application of the principles of parity.

TOOHEY J: Mr Byrne, you seem to baulk at the proposition suggested to you by the Chief Justice. Are you seeking to put the principle in some different form?

MR BYRNE: Your Honour, the proposition which the Chief Justice put was to the effect, as I understand it, that where there is one offender sentenced to, as your Honour used the word, "condign" punishment, can it be said - condign and appropriate punishment - that the Court of Criminal Appeal should interfere to alter that sentence by reference to the sentence imposed on the other offender?

TOOHEY J: I thought the Chief Justice said by reference to the other sentence, giving rise to a sense of injustice.

MR BYRNE: Yes. In my submission that is the appropriate principle to be applied.

TOOHEY J: I understood you not to accept that proposition.

MR BYRNE: No, I am sorry, I did agree with the proposition that his Honour put to me. But in this case, this applicant came before the District Court knowing what his co-offender - a co-offender who, in our submission, should have been regarded as approximately equivalent for all relevant purposes, for the purpose of sentence - he was ultimately sentenced to a sentence which was in excess of 17 times that imposed on his co-offender, but the error which, we would submit, is exposed by the transcript of the proceedings in the District Court, is that the learned sentencing judge was asked to apply the principles established by this Court in Lowe's Case. He, in effect, refrained from doing so by saying that there were other principles which qualified that principle; that those principles being, as he explained it, that where he prior sentence can be classified as manifestly inadequate, then it can be ignored.

Now that, in our submission, simply does not exist as a principle of sentencing. The principle established by this Court is that where there is a co-offender who has been sentenced, and the offenders are approximately comparable or equivalent, then the earlier sentence must be taken into account. It cannot simply be dismissed on the basis that in the view of the second judge it is manifestly inadequate. In our submission, the approach which should be taken in circumstances such as that is the approach which was outlined by Justice Mason in his judgment in Lowe v The Queen [1984] HCA 46; 154 CLR 606. If I might refer your Honours to page 613, where the judgment Justice Mason is recorded, and take your Honours to the last complete paragraph on page 613, and going over to the next page. His Honour there, in my submission, set out the appropriate principle to be applied in circumstances such as this. In the third-last line his Honour said:

It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.

DAWSON J: Certainly that is the point at which a court is entitled to intervene and unless there is a manifest discrepancy it ought not to intervene.

MR BYRNE: Yes, your Honour.

DAWSON J: But, it is pointed out elsewhere in that case that there is always the dilemma that, in order to eliminate a disparity, the court may have to alter a sentence which is proper in itself because of an inadequate sentence imposed on a co-offender and that leaves to the court a discretion as to whether it will or will not exercise its entitlement to reduce the sentence which is a proper sentence. It cannot, of course, raise the sentence which is inadequate. But it is not suggested anywhere in Lowe, I think - unless you can point to me where it is - that, simply because there is a disparity, a court must, as a rule of law, interfere with the greater sentence.

MR BYRNE: Your Honour, in my submission, that principle can, with respect, be derived from the various judgments in Lowe's Case, and I appreciate that there are a number of differing views, in effect, expressed in the different judgments in that case. If I could take your Honours - - -

DAWSON J: That is a very extreme view, that if you get a sentence which is, quite obviously, imposed in error, is quite wrong and is not only manifestly inadequate but quite unthinkable, you nevertheless, as a matter of law, must reduce the co-offender's sentence to coincide with the quite wrong sentence which is imposed elsewhere. I find that hard to accept. You see, where it can be demonstrated that a sentence is far too low and is quite wrong and if some particular offender has been simply more than lucky, he has been able to take advantage of an error that has been made, there cannot be a sense of injustice.

MR BYRNE: That is one of the ways in which the principles in Lowe have sought to have been qualified but, in my submission - - -

DAWSON J: It is only sensible that it should be, is it not?

MR BYRNE: In my submission, not, your Honour, because it depends firstly, and that is a live issue on the facts of this case, whether the earlier sentence, that is the sentence imposed upon the co-accused, the co-offender, can legitimately be described as being manifestly inadequate and, indeed, to the extreme measures that the learned sentencing judge took in describing that sentence in the course of the proceedings. It certainly was a lenient sentence. It was, perhaps - - -

DAWSON J: Well, it was practically no sentence at all, was it not?

MR BYRNE: It was a sentence of three weeks imprisonment which is, I have to concede, a lenient sentence but, on the figures available relating to sentencing for escape in New South Wales, it was not an unprecedented sentence. It was not one against which the Crown exercised its right to appeal, and that, at least in New South Wales, where the Crown has a right of appeal against what it perceives to be an inadequate sentence imposed in the Local Court, the failure of the Crown to exercise its right of appeal, is at least something of an indication that the sentence is not seen by the relevant authorities as absurd or ridiculous as it was described by the learned sentencing judge.

I have to concede, your Honour, that it was a very light sentence, a very lenient sentence, a surprising sentence on its face, but it was one that needed to be taken into account, in our respectful submission, in determining the appropriate sentence in relation to the co-offender. The situation that he is now left in - - -

DAWSON J: Can I ask you this, Mr Byrne. you do not suggest that it is an inviolable rule that because one co-offender has been given a particularly light sentence, therefore his co-offender must be given the same, or as nearly as possible the same sentence?

MR BYRNE: No, I do not. I do not suggest for one moment, with respect, your Honour, that he should be given the same sentence but, in my submission, the learned sentencing judge, in this situation, should have taken into account that sentence as a relevant fact to be weighed in the balance in determining an appropriate sentence for this applicant.

BRENNAN CJ: But you go further, do you not, and say we should not only take it into account but we should give weight to it and not impose a sentence which is substantially at variance from that which was first imposed?

MR BYRNE: No, your Honour, I do not submit that, with respect. What I would submit and what we would submit is that the fact of the other sentence is a matter which should be taken into account - - -

DAWSON J: Well, one has to understand how that is done. It was taken into account in the sense that it was disregarded. It was looked at and said, "Well, look, this must be explicable on some grounds which have no application here." Now, having regard to the other sentence, what sentence do you say that your client should have been given?

MR BYRNE: It would not have been inappropriate to have sentenced this applicant to, for example, a sentence of six months imprisonment.

DAWSON J: There is still a vast disparity.

MR BYRNE: There is a vast disparity, but it is not as big as it is at the moment. Perhaps, your Honours, if I might - - -

DAWSON J: It would still engender a sense of grievance; it ordinarily does that.

MR BYRNE: It would, but it would not be as severe, or as stark as the current situation in which he finds himself where he serves an extra 49 weeks beyond the co-offender. Your Honours, the solution to what, with respect, your Honour Justice Dawson described in Lowe's Case as the dilemma which arises in this situation may be resolved by the application of this principle which is to be found in the judgment of Mr Justice Anderson in the Court of Criminal Appeal in Western Australia in the case Reg v Capper, 69 A Crim R 64 and, in particular, I refer to his Honour's judgment at page 74, about halfway down the paragraph on that page, where his Honour says this:

When a co-offender has been treated with excessive leniency, justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner.

Now, that was not the approach that was taken in - - -

DAWSON J: That is a very pragmatic approach, is it not?

MR BYRNE: It is, your Honour. But it is a preferable approach in achieving the objective of, if not eliminating the existence of a justifiable sense of grievance then, at least, ameliorating that sense of grievance and perhaps diminishing it, but it is a much more acceptable approach, in my submission, than to say that the other sentence should be ignored because it is inadequate. The approach that was taken by the learned judge in this case was one - and I emphasise that he was specifically referred, on more than one occasion to the judgment of this Court in Lowe v The Queen. He referred to the case in his reasons for sentence but said that that case, as I said, was subject to qualifications. He identified those qualifications as being that a manifestly inadequate sentence could be ignored in the way that he proposed to do. The approach he took was not in any sense criticised by the Court of Criminal Appeal.

In my submission, the Court of Criminal Appeal, in dealing with the matter, fell into the same error by referring to the fact that by taking into account that earlier sentence there would be what the court described as an approach of responding to one wrong decision by making another wrong decision. It also referred to the course being one which would involve the multiplication of manifest errors. Now, that is all predicated on the basis, as the learned sentencing judge approached it, that the earlier sentence was one which was so inadequate as to have no legitimate bearing whatsoever. In my respectful submission, that was not a proper approach. It was one which was contrary to the principles which have been established by this Court in Lowe and it was one which should have been corrected by the Court of Criminal Appeal. Those are my submissions, may it please your Honours.

BRENNAN CJ: Yes, thank you. Yes, Mr Keleman.

MR KELEMAN: The position that the respondent takes is this: the question is not whether the sentencing judge misapplied the principle stated in Lowe, but whether or not the Court of Criminal Appeal properly carried out its function and applied the principles in Lowe. That, we submit, is the principle test. Now, at page 25 of the application book, line 6, the court accepted that the correct view in Lowe was that disparity itself was:

a ground of appellate intervention and not merely a circumstance -

indicating possible error. Similarly, at page 25 of the application book, at line 41, the Court of Criminal Appeal opposed the very test which your Honour Justice Dawson posed in Lowe at page 24, having considered the seminal principles that appear at page 623 of the judgment in Lowe. Now, the test that your Honour Justice Dawson imposed in Lowe at 624 appears at approximately point 2, and perhaps I should commence at the first clear paragraph on that page:

Whether this Court would or would not have taken the same course as the Court of Criminal Appeal is not material in an application for special leave to appeal. The significant thing is that the course taken did not involve the application of any rule of law and insofar as it involved the exercise of a discretion there was no violation of the relevant principles. In the end, the question before the Court of Criminal Appeal was whether the sentence imposed upon the applicant was excessive having regard to the lesser, albeit later, sentence imposed upon Smith.

Now, with respect, that was precisely the same test that the Court of Criminal Appeal applied at page 25 of the application book.

BRENNAN CJ: How is that reconcilable with what appears on page 25? In other words, in 25, as I read it, they have adopted what was said by Justice Mason, and that is that in the choice as between the significance of disparity being a ground for intervention in itself or merely a point to error, the answer is that it is a ground for intervention by itself.

MR KELEMAN: Yes.

BRENNAN CJ: Now, if it is a ground for intervention by itself, how is it that one comes, if one then adopts Justice Dawson's approach, to the question of seeing whether or not the sentence is excessive, having regard, inter alia only, to the disparity?

MR KELEMAN: We would submit that the two tests are virtually the same. Justice Dawson, in concluding that that was the appropriate test, touched upon the very same matters at page 623 that the former Chief Justice referred to in his judgment. They appear again at the first clear paragraph at page 623.

BRENNAN CJ: I must say, for myself, I am inclined much more favourably towards Justice Dawson's view, but that is not quite the point. The point is, is it right to say that disparity is itself a ground of intervention?

MR KELEMAN: It is on a discretionary basis. It opens the door. It is an initial - - -

DAWSON J: If the court did not have regard to disparity where it existed, then it would be a wrong exercise of its discretion.

MR KELEMAN: Certainly, but it - - -

DAWSON J: Or, if it gave insufficient weight.

MR KELEMAN: All the court is, in effect, saying, is that disparity is a matter that enlivens its jurisdiction or a basis for intervention. Once there is a disparity, the court then considers whether that disparity, in the light of the principles enunciated in Lowe, whether one refers to a sense of justice or justifiable sense of grievance or excessiveness, we would submit, is the same. It then becomes a question of the court exercising its discretion. The former Chief Justice, if I can take your Honours to that page, refers to that very issue, at page 610, the second line from the top of the page:

It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.

Now, we would say that is entirely consistent with the approach taken by your Honour Justice Dawson at page 624 of the same judgment. It really boils down to, at the end of the day, the discretion of the court in assessing the nature of the disparity. Disparity of itself will not necessarily involve a reduction in sentence. What it involves is the consideration as to whether or not the disparity is an appropriate one for intervention - - -

TOOHEY J: In other words, it could stand as a ground of appeal on its own.

MR KELEMAN: Certainly.

TOOHEY J: It may not get you there in the end but it would be an appropriate ground of appeal, that there is a disparity. That would then enliven - I use your words, Mr Keleman - the court's jurisdiction, but how the court deals with the matter in the end depends on all the circumstances.

MR KELEMAN: Yes. It depends upon how the court characterises, ultimately, that disparity, and whether or not - - -

DAWSON J: What is said against you here is that the court gave no weight to the disparity at all. It just disregarded it and it said, "Well, you could have given some weight to it, even if it didn't want to make the sentences equal by, at least, reducing what it otherwise would have regarded as a proper sentence".

MR KELEMAN: The court said it had regard to the question of disparity. The passage at page 25 line 6 is an acknowledgment that disparity provides a proper basis to intervene if the court so wishes. Similarly, further down that page, at line 41, the court accepts that the disparity, of itself - - -

DAWSON J: There is no indication, either with the sentencing judge or with the court, that the sentence which was the proper sentence was reduced in any way, having regard to the lower sentence imposed on the co-offender, is there?

MR KELEMAN: But the sentencing judge reduced the - - -

DAWSON J: He did?

MR KELEMAN: I am sorry, your Honour.

DAWSON J: Yes, did he?

MR KELEMAN: No. The sentencing judge did not seem to - - -

DAWSON J: Because he regarded the other one as wrong.

MR KELEMAN: Certainly, but then - - -

DAWSON J: And what has been put against you is wrong or not, there is a disparity and some weight must be given to it.

MR KELEMAN: With respect, we would submit that the Court of Criminal Appeal did, and - - -

DAWSON J: When?

MR KELEMAN: In those two passages I referred the Court to, plus at page 26 of the application book at line 46, the court said:

In all the circumstances of the case, I do not consider that what this court knows about the sentencing of the co-offender Martin should lead us to intervene in the sentencing of the present appellant. The discretion of the court is enlivened by the objective fact of the difference between the sentences -

So that the court acknowledges, again, that there is this disparity. It says, "Yes, there is a disparity."

BRENNAN CJ: I do not understand this about the court's jurisdiction being enlivened. The court's jurisdiction is enlivened by the application.

Either, it enlivens it in the sense that it shows error or it is not. I mean, does it show error?

MR KELEMAN: No. We would submit that Lowe does not refer to disparity in terms of error but in terms of whether or not the disparity, in the circumstances, can give rise to a justifiable sense of grievance or a sense that there has been injustice or, in the terms of Justice Dawson in Lowe, excessiveness.

DAWSON J: But what you have is disparate sentences and in sentencing the accused who we are concerned with here, the disparity was disregarded, said not to be relevant. When it comes down to that, if a court below or one sentencing judge makes a big error and imposes a sentence which is far too light and the co-offender then comes up for sentence and the judge says, "I'm not going to take account of that because it was in error", is that judge in error? Or must he, whether or not the original sentence was in error or not, take it into account in sentencing the co-offender? That is what we are concerned with.

MR KELEMAN: I understand that but in this particular case - - -

DAWSON J: Well, what do you say?

MR KELEMAN: We would submit that it goes ultimately to the question of the nature of the sense of grievance or the question of whether or not - - -

DAWSON J: But do you say the second judge, if he concludes that the first sentence was in error, can disregard it?

MR KELEMAN: No, I do not say that.

DAWSON J: Because that is what has happened here, is it not?

MR KELEMAN: It appears that that is what the sentencing judge did here but the Court of Criminal Appeal did not take that same approach. The Court of Appeal carried out its task as Lowe required it to do. It applied the principles in Lowe. It also had a difficulty with the way in which the appeal was conducted in so far as the important question of comparability was concerned. The Court of Criminal Appeal accepted impliedly that disparity only applies when the circumstances are comparable and that is not disputed from - - -

DAWSON J: The circumstances here were comparable, were they not?

MR KELEMAN: Well, the subjective circumstances - - -

DAWSON J: Same offence.

MR KELEMAN: The objective circumstances were comparable but the subjective circumstances were clearly very different and the Court of Criminal Appeal was, to some extent, constrained because of the lack of information before it. But on the material before it - and this appears principally on page 26 of the application book - there is no question that the court took the view that it was constrained by the material before it because it could not conclude that the subjective circumstances were, in fact, comparable.

That discussion commences at page 26 of the application book, at line 6:

Saunders DCJ had before him no information as to the reasons why Magistrate Orchiston took the course she did. This court has before it some rather incomplete information, the effect of which is summarised above.

Because we do not have before us in detail the whole of the subjective material relating to Martin which Magistrate Orchiston took into account, I am reluctant to say categorically that her decision was clearly erroneous.

So the court is not accepting that there was, in fact, error in the imposition of the extraordinarily lenient sentence imposed on the co-offender. The court goes on to say:

On the extremely limited information available to him, Saunders DCJ was certainly entitled to take the view that the - - -

DAWSON J: They certainly did not think he was plainly right, did they?

MR KELEMAN: No, they did not say that. And then at line 34, the next full paragraph, the court said:

Unless Magistrate Orchiston's decision was based upon some serious error, then the subjective circumstances applicable to Martin must have been quite extraordinary. There is no other apparent explanation for the fact that, as she acknowledged, she set out to produce a result which imposed no effective -

cumulative -

punishment at all upon Martin for his escape from lawful custody and the stealing of the motor car.

So, it is really on that basis, the factual basis, that the court's consideration turned. The court did not cavil with any of the principles stated in Lowe. It, in fact, applied them. What was critical in this particular consideration was the question of the facts or the sufficiency of facts concerning this subjective area, because we would submit disparity does not apply where the subjective circumstances are not comparable, and that is all that the Court of Criminal Appeal made conclusions about.

BRENNAN CJ: Nobody has ever doubted that. What do you say Lowe stands as authority for?

MR KELEMAN: That where the objective and subjective circumstances of co-offenders are comparable, disparity between the sentences imposed can enliven an appellate court's jurisdiction where that disparity gives rise to a justifiable sense of grievance or a perception that justice has not been done or is otherwise excessive.

BRENNAN CJ: So, in other words, the test is whether, objectively speaking, the disparity is so grave as to give rise to a justifiable sense of grievance?

MR KELEMAN: Yes, where the circumstances are comparable, both objective and subjective.

DAWSON J: Can there be a justifiable sense of grievance where the lesser sentence is in error or apparently in error?

MR KELEMAN: We would submit not.

DAWSON J: Yes. Why not?

MR KELEMAN: Because of the public interest considerations, that where the - - -

DAWSON J: That would have nothing to do with the sense of grievance.

MR KELEMAN: But it is a justifiable sense of grievance. There could hardly be a justifiable sense of grievance in circumstances where the earlier sentence was clearly in error.

BRENNAN CJ: So, as the door slams shut, he says, "Good luck to me mate, he got it light." It just seems to me to be a bit unreal to put it on that basis.

MR KELEMAN: We would submit though that this case does not give rise to that issue. That question of principle does not properly arise here because of the way in which the Court of Criminal Appeal determined the matter on the facts and not on the law. The Court of Criminal Appeal made no decision about this particular aspect at all. It turned solely on its fact-finding exercise in relation to the subjective circumstances and nothing else. At the end of the day, having considered those principles, it exercises its discretion in a particular way, so that even if the question which your Honours have posed is a proper one, and I do not dispute that it is, we would say it does not arise in this particular case and this is not an appropriate vehicle. I do not believe I can add anything further, unless your Honours wish me to deal with something.

BRENNAN CJ: Yes. Mr Byrne.

MR BYRNE: There is just one matter arising out of what my learned friend has put to the Court in his submissions. The proposition has been put that the subjective circumstances of these two offenders were not comparable. There is no evidence to establish that fact at all. It was put up by the Crown as a matter, on the sentence proceedings, that they were in fact comparable. The Crown put before the court material relating to their prior records and did not suggest in any way that the prior sentence imposed upon the co-offender should not be taken into account; indeed, to the contrary. It was put there now what the Court of Criminal Appeal has said, not that there is evidence of the subjective circumstances being different but a conclusion that my friend has referred to at page 26 of the application book, at line 35, that because of the apparent leniency of the sentence, then the subjective circumstances must have been extraordinary. If that approach is open, then it can be taken in every parity case.

DAWSON J: Well, not quite. I mean, there was some suggestion here, was there not, that this man had been on drugs, that he had rehabilitated himself and for that reason he was to be encouraged? I do not know where that takes you but that may have been a point - - -

MR BYRNE: That is our situation as well. We are also a person who is affected by drugs and who had, during the course of his imprisonment, tried to do something about it. He had fallen into family problems. They were equivalent, in our submission, for the purpose of sentence, both from an objective point of view and from a subjective point of view.

Perhaps the final thing I might say in relation to the question of whether, indeed, this sentence that was imposed on the co-offender could legitimately be described as being so lenient as to demonstrate that there were exceptional circumstances in his case, there was an exchange between the legal representative of the applicant and the learned judge in the sentence proceedings where there was discussion about the range of sentences for escaping from lawful custody. I refer your Honours to page 9 of the application book where the learned sentencing judge said, at line 40:

I think the Court of Criminal Appeal has said that unremarkable escapes, if you want to call them that, justify sentences of from twelve to eighteen months.

The legal representative said:

Your Honour will be aware of course that there are many, many sentences imposed that are significantly less.

HIS HONOUR: I know that -

Now, for it to be suggested that this sentence was so exceptional as to be legitimately described as manifestly inadequate and, therefore, to be ignored and, therefore, that the application of what is a crucially important principle in the administration of sentencing is not, in my submission, sufficient. May it please the Court.

BRENNAN CJ: Thank you, Mr Byrne. The Court will consider its decision in this matter over the luncheon adjournment. The Court will adjourn until 2.15.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN CJ: In dismissing the appeal to the Court of Criminal Appeal, the Chief Justice speaking for that Court said:

In all the circumstances of the case, I do not consider that what this court knows about the sentencing of the co-offender Martin should lead us to intervene in the sentencing of the present appellant.

Although the Court of Criminal Appeal recognized the difficulties which the differences in the sentences imposed on the applicant and his co-offender revealed, that Court was unable, because of the inadequacy of the factual material, to conclude that the sentencing judge was in error. This Court is in no better position than the Court of Criminal Appeal. Accordingly, the case does not raise with sufficient clarity the question of the nature and extent of the discretion which Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 requires to be exercised in cases where there has been disparity in the sentencing of co-offenders. For these reasons, special leave will be refused.

AT 2.19 PM THE MATTER WAS CONCLUDED