Siganto v The Queen D175/1997 [1998] HCATrans 190 (21 May 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D175 of 1997

B e t w e e n -

COLIN JOSEPH SIGANTO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 2.34 PM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by the Northern Territory Legal Aid Commission)

MR R.S.L. WILD, QC: If the Court pleases, I appear on behalf of the respondent with my learned friend, MR W.J. KARCZEWSKI. (instructed by the Director of Public Prosecutions (Northern Territory))

GAUDRON J: Yes, Mr Grace.

MR GRACE: The weight of judicial authority in Australia is to the effect that a defendant is not to be additionally penalised upon convictions for pleading not guilty, giving evidence that is not believed by a jury and conducting his or her defence with vigour and to the embarrassment, discomfort or distress of prosecution witnesses.

GUMMOW J: That is all very grand.

GAUDRON J: Yes. Are we to assume that that is what happened in this case or is there something that points to that having happened in this case?

MR GRACE: Yes, there is, your Honours. In this case - - -

GAUDRON J: What points to it?

MR GRACE: There are three reasons why it is submitted that the Court of Criminal Appeal's conclusion that there was nothing in his Honour's reasons for sentence that pointed to that was an error.

KIRBY J: But it is also the weight of judicial authority that if a person who is accused pleads guilty and spares a complainant in a sex case from the obligation of having to give evidence that that redounds to their benefit in sentence.

MR GRACE: Yes, but the converse is not true, with respect your Honour.

KIRBY J: Yes, but I wonder if that is a difference in reality. I mean, what is said here is that the comment that you defend at the trial was simply preliminary to the observation that he could not get the benefit that would otherwise have attracted by his pleading guilty. The latter would not be an incorrect consideration, the former would be, but the question is whether that was merely part of the recital of the background to explain the latter.

MR GRACE: Well, it submitted that it was not relevant to the exercise of the sentencing discretion. Could I just go back to what your Honour just said? Absence of remorse is not an aggravating factor. Existence of remorse is a mitigating factor. Absence of evidence of remorse results in no mitigation of penalty on that account but it can never amount to an aggravation of penalty. The three reasons why it is submitted that his Honour's comments, as affirmed by the Court of Criminal Appeal, were in error are these: from the words themselves and the placement of those reasons in the reasons for sentence, or those facts in the reasons for sentence, leads one to the reasonable inference that the sentence has been increased by reason of those facts.

Could I refer your Honour's to page 4 of the application book, and there you will see four paragraphs. The first paragraph contains objectionable material, in my submission, as does the last sentence of the second paragraph. Secondly, the second point is that the clear linking of the finding of lack of remorse with the conduct of the defence by the applicant, shows that these factors have entered into the exercise of sentencing discretion. This is, in fact, conceded by the respondent at paragraphs 12 and 13 of his submissions.

GUMMOW J: Look, you have got a limited time, Mr Grace.

MR GRACE: I appreciate that.

GUMMOW J: Just put shortly what the three points - and I hope you do.

MR GRACE: Yes.

GUMMOW J: Just give us the three points shortly.

MR GRACE: Yes. This approach was decried as being in error and improper by the Victoria Court of Criminal Appeal in Yam, at pages 118 to 119.

GUMMOW J: Is there any point of general principle that comes out in any of this related to the transmission of systems from one sentencing system to another?

MR GRACE: Yes, there is, your Honour.

GUMMOW J: All right.

MR GRACE: This is brought out by the third point, which is that the common law of the Northern Territory is that a sentencing judge is entitled to regard the distress suffered by a prosecutrix in giving evidence as an important aggravating factor. The Northern Territory is alone in Australia in regarding that as an important aggravating factor for sentence. That appears clearly at page 9 of the unreported decision of Melville, which your Honours have in the materials provided. The learned sentencing judge in this case presumably applied the law of the Northern Territory as it stood at the time of sentence.

GUMMOW J: We understand the Melville point, but is there any point that arises from the repeal of the Correctional Service Act?

MR DAVIES: No, your Honour.

GAUDRON J: Why do you say that? I look, for example, at page 24, where their Honours said:

The head sentence.....is within the range of sentences imposed in this Court in recent years -

the assumption apparently being that nothing has changed by reason of the remission of - the abolition of remissions or the alteration of the non-parole period.

MR GRACE: At the time of writing of that judgment, it is submitted it was far too early for the court to have reached that conclusion. The new sentencing regime had only just come into operation, so - - -

KIRBY J: Has it developed in a different way?

MR GRACE: I am unable to say. Perhaps Mr Wild can - - -

GAUDRON J: There is talk in some of the submissions about disparity. Is there disparity?

MR GRACE: When one considers that - - -

GAUDRON J: Either backwards or forwards, it does not much matter. Is there disparity?

MR GRACE: Yes, in terms of the punishment suffered by a person convicted of rape after this Act came into operation there is disparity.

KIRBY J: But that is by reason of the Act, which is the will of the Parliament of the Northern Territory.

MR GRACE: Yes. But nevertheless there still is disparity in terms of length of time spent in custody by such persons.

KIRBY J: But that was the whole purpose of so-called truth in sentencing to cut down on the mythology of imposing a sentence which was not intended to be served.

MR GRACE: Yes.

KIRBY J: So, if that is the will of Parliament and that operates on your client, then that is as the law is intended to operate.

MR GRACE: Except for sentences of less than 12 months imprisonment. Anyone sentenced- - -

KIRBY J: Yes. That is against you, because that means where Parliament has intended a variation to be taken into account is expressly stated.

GAUDRON J: No, in other jurisdictions, however, the absence of remissions has been taken into account, has it not, when fixing the head sentence? Is that right?

MR GRACE: That is right, and in the Commonwealth jurisdiction as well.

KIRBY J: But that is by the force of the statute in the Commonwealth jurisdiction, is it not? It is expressly stated. What about in New South Wales or in other States with truth in sentencing legislation? When that came in, has the common law developed that the judges' say, "Well we will take that factor into account in the sentence we actually now impose and make allowance for that fact."?

MR GRACE: Well it is to the contrary, except where it has been statutorily prescribed.

GAUDRON J: Why?

KIRBY J: Well as it is not statutorily prescribed in the Northern Territory, why should it be taken into account? If Parliament so provides, makes an exception for one year sentences, why is that not the will of Parliament that must be complied to by the judges?

MR GRACE: That is traversing into the second issue raised by this application. Now if I could just leave that point until I come to that issue - - -

KIRBY J: We will leave it hanging in the air.

MR GRACE: - - - because there are transitional provisions which provide for a prisoner not to be prejudiced by increases of punishment which occur subsequent to the date of commission of the offence. That is section 121. But could I just refer to one case in relation to the first issue, which is taking into account the facts that are being referred to, and that is the Tasmanian decision of Hryczszyn v The Queen, and- - -

GUMMOW J: Well, just tell us what it says?

MR GRACE: It says that the approach taken by the learned sentencing judge in this case and affirmed by the Court of Criminal Appeal is in error, because it gives the clear indication that, in deciding upon the sentence, the learned sentencing judge must have been influenced by those facts, and those facts are improper influences upon the exercise of sentencing discretion.

GAUDRON J: Well now, I think we have lost Darwin. Could you just wait for one moment. Do we have a court official here who could attend to that? Thank you.

KIRBY J: This is the sort of relief from the deity that many counsel have prayed for in the middle of these sort of things.

MR GRACE: As long as the clock stops, your Honours.

GAUDRON J: I am not too sure about that, Mr Grace. I think we are back with Darwin. Now, Mr Wild, can you hear us?

MR WILD: Yes, thank you, your Honour.

GAUDRON J: And do you know when you lost us?

MR WILD: My learned friend was just about to cite from an unpronounceable case.

MR GRACE: From Tasmania.

GAUDRON J: Yes, from Hryczszyn, I think, yes. Thank you, Mr Grace.

MR WILD: Thank you.

MR GRACE: In Hryczszyn the sentencing remarks by the sentencing judge were these:

You have not been repentant, you chose to plead not guilty, you have told a story which has been rejected by the jury and, in my judgment a punishment less than a sentence of imprisonment would not be sufficient.

KIRBY J: Well that is very similar to what was said here. And what happened in that case?

MR GRACE: The Full Court of the Tasmanian Supreme Court held that those sentencing remarks gave the clear impression that his Honour was influenced by those factors, and improperly so, and that impugned the exercise of the sentencing.

KIRBY J: Now has this Court ever pronounced on this matter and, in particular, explained the differentiation between giving credit for remorse and sparing the complainant on the one hand and not punishing a person for exercising his civil rights?

MR GRACE: Not that I am aware, your Honour.

KIRBY J: All right, well that is the first point.

MR GRACE: That is the first point, and there is English authority which supports- - -

KIRBY J: Then you are going to take us into these obscure provisions of Northern Territory sentencing legislation?

MR GRACE: Yes, your Honour.

KIRBY J: The equivalence of which I had thought I had escaped forever.

MR GRACE: Does your Honour talk about the Commonwealth Crimes Act?

KIRBY J: No, I am just thinking of the New South Wales Sentencing Act.

MR GRACE: Yes. Could I first commence by taking your Honours to the judgment, or reasons for sentence of his Honour Justice Mildren, of the Supreme Court of the Northern Territory in the matter of Staats. It is unreported decision of 10 April 1997.

GUMMOW J: What would it tell us?

MR GRACE: It gives your Honours an analysis of why, in his Honour's view, the contentions submitted by the applicant ought to be accepted.

GAUDRON J: Which contentions?

MR GRACE: The contentions that section 55 of the Sentencing Act of the Northern Territory is not applicable to the circumstances of the applicant, that is - - -

GUMMOW J: Was this case referred to in the Court of Criminal Appeal in the Northern Territory?

MR GRACE: No, what had happened was - - -

GAUDRON J: This is your retrospective - - -

MR GRACE: Yes, this is the retrospective point.

GAUDRON J: Well, there seems to be a deal of authority against you on that, including, I should have thought, Bugmy.

MR GRACE: Well, could your Honours please bear with me for a few minutes, just to allow me to address you on it?

GUMMOW J: Well, I am asking you, was this referred to in the Full Court?

MR GRACE: In Siganto?

GUMMOW J: Yes. This decision you are now referring to of 10 April, was that referred to when this matter was heard in Darwin on 3 October?

MR GRACE: No, the argument in Siganto before the Court of Criminal Appeal had already been presented before this decision was handed down, and that is referred to in the reasons for sentence, itself. What is submitted is that Justice Mildren was correct in his analysis because, in essence, what Justice Mildren did was to equate the word "penalty" with the word "punishment", so that that brought into play the relevant provision of section 121 of the Act, and that provision provided that where there had been legislation which:

increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to an offence committed after the commencement of the provision effecting the increase.

GUMMOW J: Where do you say Justice Priestley went wrong in his analysis of this question? We are not embark on this de novo, you have got to show where the court went wrong.

MR GRACE: In failing to equate the word "penalty" with the word - - -

GUMMOW J: Yes. Which passage do you say is wrong? It looked, to me, like a very thoughtful and detailed judgment and I just want to know which passage you say is the wrong - - -

MR GRACE: At page 23, there is reference to the second reading speech.

GUMMOW J: Well, they said they were not deciding it by reference to that, did they not?

MR GRACE: Yes. And, also, at page 22, where there is discussion of the word "penalty" and - - -

GUMMOW J: It is the last sentence on 22, is it?

MR GRACE: Yes, the last two sentences on page 22.

GUMMOW J: All right.

MR GRACE: Now, one then needs to look at the relevant provisions of the Criminal Code, which mentions the word "punishment" instead of "penalty". The argument for the applicant is this, that the punishment has been effectively increased by reason of the abolition of remissions.

GAUDRON J: Yes, but has it been increased to a greater extent than was authorised by the former law? They being the words in section 14(2) of the Criminal Code. It does not seem to me that that provision is directed to what happens in fact but to what the law provides by way of maximum penalty.

MR GRACE: Yes, but the - is your Honour looking at section 14(2) of the Criminal Code?

GAUDRON J: Yes.

MR GRACE: It is submitted that the word "punished" refers to the existence of a regime which - - -

KIRBY J: You say by juxtaposition of punish and penalty, that - - -

MR GRACE: Yes.

KIRBY J: - - - "penalty" is what the law provides as the maximum, and "punished" is what is actually served?

MR GRACE: Yes, and the result of the legislation is to increase the punishment - although penalty is not increased - save for those sentences of less than 12 months.

KIRBY J: But how would one reconcile the Criminal Code 14(2) with the express regime of the Sentencing Act? Would not one give priority to the Sentencing Act and say the Criminal Code states a general proposition, but here is now a special regime for the sentencing?

MR GRACE: No, with respect, your Honour, because one can use section 121 as providing the jurisdiction to apply section 14.

GUMMOW J: No, no. Look, what we have said recently in Project Blue Sky is that one begins with the proposition that sections like this can be harmonised.

GAUDRON J: And there is no necessary inconsistency because what the Criminal Code is talking about is what the former law authorised, not what happened under it.

MR GRACE: But one has to not close one's eyes as to the result of punishment.

GAUDRON J: We have asked you that before and you said - you did not seem to be much interested in that. Namely whether, the system having changed, it was not incumbent upon the sentencing judge to have regard to that change in fixing the head sentence, which after all is the only thing he was thereafter permitted to fix, and whether the Court of Appeal, the Full Court, asked the right question or answered the question in the right way at page 24 by comparing the head sentence with sentences in recent years, presumably with sentences under the earlier regime. The question being whether it was now necessary to have regard to the fact of change.

MR GRACE: It is submitted that the court was obliged to do so, and furthermore there is nothing in the Sentencing Act which prevents the court, at common law, from having regard to the abolition of remissions as a relevant factor in the imposition of the penalty.

GAUDRON J: Well, is that an argument you put?

MR GRACE: That is an argument that was put before the Court of Criminal Appeal.

GAUDRON J: Is it an argument you put here?

MR GRACE: Yes, I do.

GAUDRON J: It is not within your draft grounds of appeal.

MR GRACE: It is certainly within the arguments and certainly within the submissions, in my submission.

KIRBY J: We have to have our record in order. If you are going to raise that matter, which itself may be of some significance, then you have to formulate a ground of appeal.

MR GRACE: I am prepared to do that, certainly, your Honours, but the result, if this method of approach to sentencing under the new regime is allowed to prevail, is an increase of 50 per cent in the period of time spent by any prisoner sentenced to 12 months or more in the Northern Territory.

KIRBY J: Well, that may be the intention of Parliament, but you have put the proposition at this stage that it raises an important general question of where that is introduced, if the judges have to take into account the reality that it increases the amount of time spent in custody.

MR GRACE: Yes. Well, it is submitted that that was not the intention of Parliament and, in fact, that was referred to in the second reading speech which is set out at page 23 where the Attorney said:

While it is the intention of the government to see that offenders are properly punished for their offences, it does not intend that sentences be effectively increased by reason of the abolition of remission alone.

Now, the Court of Criminal Appeal said that was in reference to section 58 only, which was the provision that dealt with remissions for sentences of 12 months or less. The applicant argued before the Court of Criminal Appeal that it had a more general application.

KIRBY J: This is, of course, just the legislation of one particular State. Have you done any analysis of the comparative legislation in other States to show that there is some relevance?

MR GRACE: Yes. In Victoria the issue of taking into account abolition of remissions prevailed for five years from April 1992 until April 1997 when the sunset clause ended that particular operation.

KIRBY J: But that was by statute, was it not?

MR GRACE: That was by statute.

KIRBY J: Is that not itself significant?

MR GRACE: Except that at common law it was always relevant to take into account the existence of a remission scheme or the absence of one and that has been enshrined in the Commonwealth legislation now under section 16G.

KIRBY J: Yes, again, by statute you see.

MR GRACE: By statute.

KIRBY J: Well, why should we not say here the Northern Territory is not incorporated in the statute, therefore, it is not the intention of - - -

GAUDRON J: Well, you say that is the question of principle that arises.

MR GRACE: That is the question of principle.

GAUDRON J: Whether correct sentencing principle requires consideration to be had to that in the absence of the statutory provision.

KIRBY J: You seem to be a little in front at the moment, Mr Grace, and you are lost for time.

MR GRACE: Thank you, your Honour.

GAUDRON J: Yes, Mr Wild.

MR WILD: Yes, your Honour.

GAUDRON J: The Court wishes to hear from you on two points. The first is what is encompassed in ground 1 of the draft grounds of appeal, that being the question whether the sentencing judge took matters into account improperly. The second is that question of principle that we have adverted just in the last minutes of Mr Grace's submissions.

MR WILD: Yes, thank you, your Honour. Can I deal with the last matter first. Your Honour Justice Kirby, in the course of the early part of the argument, referred to section 58 of the Sentencing Act which specifically provides that in cases where there is:

a term of imprisonment of less than 12 months a court shall consider whether the sentence it proposes would result in the offender spending more time in custody -

Now the legislation has taken into account the effect of the abolition of remissions specifically and pointedly in one area only. By implication, it was intended, clearly enough on the legislation, to not incorporate that same principle in larger sentences than 12 months and this Court really need not concern itself with that question. It is not a larger question which involves other jurisdictions. The situation that my learned friend has referred to all have involved legislative approaches, the sunset clause in Victoria, for example, where the legislation has deliberately referred to the situation.

It would be the Crown's submission that there is no need for the Court to consider further what was intended by the legislation. It is clear enough by looking at it and that is certainly the way it has been interpreted by the Northern Territory Court of Criminal Appeal. That, in our submission, is a simple answer to the proposition that is put. In respect of the other matter - - -

KIRBY J: It may be a good answer and it may gain strength from the fact that in certain other jurisdictions there is a specific provision for dealing with taking into account so I would accept there are a number of arguments but the issue is still an important question, is it not, of principle because it is a trifle unfair to say that you do not take into account at all that a new regime effectively increases custodial time and very significantly and the judge just has to pay no regard to that fact.

MR WILD: That is true, your Honour, but it is clear from the legislation - - -

KIRBY J: It may be that that is what the statute requires but it is a rather harsh consequence.

MR WILD: No one said it was not harsh, your Honour, at any point. The case of Maclay which is a - - -

KIRBY J: It is one thing to get rid of the charade that used to exist by the old regimes of non-parole and remissions but it is another thing to very substantially increase custodial time and to say the judge just cannot take that into account, although that is going to be what is the burden of punishment on the prisoner sentenced.

MR WILD: Yes. Your Honour talks of punishment. I do not know whether the Court requires me to deal with section 121 of the Sentencing Act or section 14 of the Crimes Act, the Criminal Code, but we would say they had no bearing on this matter that the sentence - - -

GAUDRON J: Yes. No, we do not need to hear you on those matters.

MR WILD: Thank you, your Honour. Now, if I can turn back to the other question that the Court has raised. The fact is that when the Court of Criminal Appeal dealt with this matter they did not deal with the Melville situation at all and, in fact, they deliberately did not consider the correctness of that decision. This is at page 15 of the application book.

KIRBY J: I do not think we are really - we are not bound by Melville, so we have just to look at this as a matter of principle. Here is a judge who says, "You have pleaded guilty, you have put the complainant to an awful lot of trouble. You have shown no remorse and you are going to be punished for those considerations". Now, it would be a terrible thing if people were punished for exercising their fundamental and constitutional rights. That would be a very wrong sentencing principle.

MR WILD: Indeed, your Honour. But your Honour has jumped a stage, with respect, in the remarks that you have indicated. His Honour did not say it because of that, that you are going to get a sentence of X years. He indicated a number of other matters that justified the sentence and it is only an inference which is being asked to draw by my learned friend, Mr Grace.

KIRBY J: I am merely looking at the top of page 4:

You pleaded not guilty, having always denied the charge -

both of which are his rights. You:

have shown no remorse whatsoever. The jury took but a short time to find you guilty, an inevitable finding -

he says, so all of these - it looks as though his Honour has fallen into the error that was revealed in the Tasmanian case of taking these matters into consideration.

MR WILD: Well, with the greatest of respect, your Honour, it is not the view that was taken by the Court of Criminal Appeal when it considered the very - - -

KIRBY J: I realise that, but that is the point. We were asked, did they err?

MR WILD: You are being asked, with respect, to find that the Court of Criminal Appeal misread his Honour's remarks and that there is, therefore, a principle at stake which needs to be considered by - - -

KIRBY J: This is again the civil right of this applicant. You know, prisoners do have rights. They are under penalty and they have lost their liberty, and it is our funny old system that they can come to courts and complain.

MR WILD: Your Honour is playing with me. I was not suggesting that such was not available to him. I was putting that the Court of Criminal Appeal , looking at the same words that your Honour is looking at, has come to a different conclusion. The point I raise is that, on that basis, is this a proper case for you to consider a principle for which this case does not presently stand. That is what you are being asked to do.

KIRBY J: Could I ask this? If it was a particularly brutal offence: a young full-blood aboriginal woman and grabbed off the side of the road, and dealt with in this way, is the sentence that was imposed the sort of standard sentence for this kind of offence in the Northern Territory? In other words - - -

MR WILD: Your Honour, there is no such thing in the Northern Territory as a standard penalty, with respect. I can say to your Honour that this was regarded as a good, strong penalty from a Crown point of view, but it was not regarded as over the top, as it were, it is within the range.

KIRBY J: There is no challenge to convictions, so the only question is whether or not, having regard to the way his Honour approached the matter, the end result is such as would invite the interference by this Court. That the way he approached it brought him to a conclusion which was erroneous. In other words, that he upped the ante a little because of the fact that this man pleaded not guilty, always denied the charge. Now, the question is, does the sentence actually imposed give some credence to that complaint?

MR WILD: The Crown submission is that it does not, your Honour, but I am conscious of that being a self-serving remark. We do not have statistics to put before the Court today, which are meaningless in any event, of course, without some substantial categorisation of the individual offences. But it is submitted that it was a proper sentence and that is what the Court of Criminal Appeal thought in terms of what was reasonable at that time and in accordance with current sentencing practice, as they say towards the end of the reasons. I just lost the place now but we referred to it earlier during the course of the argument. So, the Crown submission, ultimately, is this is not a, "Oh, my gosh, it is too much" sentence, this was a fair and reasonable sentence, not reflective of the judge's views about the way in which the defence had conducted itself. Page 24, your Honour, I was looking for the remarks:

The head sentence of nine years.....is not excessive. It is within the range of sentences imposed in this Court in recent years - - -

GAUDRON J: Yes, now that seems to me to be the worrying part about this case, that regard is there had to what has been happening under the earlier regime, without making any allowance for the new regime. That is the first point.

MR WILD: Yes, the other point, your Honour, and I think your Honour Justice Kirby referred to truth in sentencing. That is what the Sentencing Act was intended here in the Northern Territory, and it is true that it was intended to effectively have what might be regarded as minimum terms which are closer to the head sentence. It has not affected, in this case or in other cases, in the Crown's submission, the head sentences in various cases, but it obviously has affected what the minimum term for parole will be. There is no doubt it has done that. The Crown argument is that is not something which can be cavilled with.

GAUDRON J: Yes, thank you.

MR WILD: If your Honours please.

GAUDRON J: They are your submissions, are they? Yes. Mr Grace, the Court is minded to grant special leave on limited grounds in this matter.

MR GRACE: Yes.

GAUDRON J: There will be a grant of special leave limited to ground 2 in your draft notice of appeal at page 31 of the application book, that being whether the Court of Criminal Appeal of the Supreme Court of the Northern Territory of Australia erred in failing to find that the learned sentencing judge:

erred in characterising the applicant's plea of not guilty effectively as an aggravating factor.

And there will be leave to you to amend your notice of appeal to raise the further question whether the Court of Criminal Appeal erred in determining that the sentence was within range by reference to sentences imposed in recent years rather than by reference to the new statutory regime. I take it you will file an amended notice of appeal within the time limited.

MR GRACE: Yes, that will be done, your Honour. Thank you.

GAUDRON J: In that case, there is nothing else - - -

MR WILD: If the Court pleases.

GAUDRON J: - - - for the Bench to do and we will adjourn to reconstitute for the next application.

AT 3.10 PM THE MATTER WAS CONCLUDED