Cook v The Queen B37/1997 [1998] HCATrans 99 (17 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B37 of 1997

B e t w e e n -

MAXWELL LEONARD COOK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 3.15 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the applicant. (instructed by the Legal Aid Office (Queensland)).

MR D.L. MEREDITH: May it please the Court, I appear with my learned friend, MR T.A. FULLER, for the respondent. (instructed by the Director of Prosecutions (Queensland)).

McHUGH J: Yes, Mr Glynn.

MR GLYNN: Your Honours, the applicant was convicted of 39 counts of inducing - - -

McHUGH J: I think we are familiar with the facts and reasons.

MR GLYNN: The principle for which we contend is set out in the record at page 34 and that is:

Whether it is correct sentencing practice for a court to impose cumulative sentences in respect of some offences when all of the offences committed by the offender arise out of a single enterprise, particularly where the sentence exceeds the maximum penalty in respect of the most serious -

The point of imposing cumulative sentences has been, in our submission, most thoroughly considered by the Court of Appeal in the matter of Hoad (1989) 42 A Crim R 312. That was a case where the appellant had been convicted of a large number of offences of unlawful use. He had been sentenced to the maximum term of imprisonment in respect of some and then had been given a cumulative period in addition in respect of others. The offences were essentially the one enterprise and in the course of the enterprise, there had been a point at which a co-accused had dropped out. The sentencing judge had treated that as being the point, as I understand the report, that triggered the second set of sentences.

The maximum sentence was seven years. He was given an effective term of 11 years. The Court of Criminal Appeal, at page 315, set out the special considerations which they said apply to the imposition of cumulative sentences. They set out four points which are (a) to (d) respectively which are set out down the page. The court did not deal with the issue of what effect the fact that in respect of some of the - or the fact that the effective sentence went over the maximum term of seven years but did interfere and reduced the overall sentence back to the effective maximum of seven years imprisonment.

That decision, and those four principles which are set out on page 315, are the clearest exposition of the approach to be adopted by sentencing courts in imposing cumulative sentences that have been made. The statute itself, which is section 156 of the Penalties and Sentencing Act, a copy of which I think the Court has, gives really no guidance as to the circumstances or the limitations upon cumulative sentences which may be imposed. It simply gives courts a power to sentence cumulatively for offences.

The court in Hoad effectively set out in some further detail the principles which had initially been set forth in Campbell and Brennan (1981) Qd R 516 and, in particular, the statements of the court at pages 523 and 524. But the court in Hoad effectively went further and gave much more detailed explanation of the principles involved.

KIRBY J: But you are going into all this detail of what the other courts have said, but what do you say?

MR GLYNN: Well, my submission, your Honour, is that firstly the principle is that a court should not sentence beyond the maximum where it is a single enterprise that is involved. In this case, the maximum sentence for misappropriation was 10 years. The maximum sentence for the other offences was five. It was a single enterprise and - - -

KIRBY J: In those words "a single enterprise" may lie a whole area of controversy and dispute. You did not take any contest to the separate charging of the different counts?

MR GLYNN: No, your Honour, because the separate charges really made up the various steps - - -

KIRBY J: You say you were entitled to assume that you would, even though they were separate, that they would be viewed by the sentencing court as part of the single enterprise?

MR GLYNN: Yes, your Honour, and that really does not seem to be doubted by the Court of Appeal in its judgment that it was a single enterprise. The sentencing judge, perhaps I could take your Honours to his remarks in this respect. He said at page 16 of the record:

As I have already said, it seems to me that there were three stages in this overall scam.

He then broke the stages up. Now, his Honour had sentenced on a different basis from that which was finally settled on by the Court of Appeal. What his Honour did was he broke the wilful false promise offences up into three groups and he imposed three years imprisonment for each of those groups, and then he made them cumulative one upon the other and he imposed concurrent sentences of nine years in respect of the misappropriation charges. The wilful false promises charges really, in a sense, brought into the Friendly Society, the money that was then misappropriated in the two misappropriation counts. The misappropriation counts were two in number simply because the first 1.9 million went to one company associated with Cook and the second, 1.4 million, went to another but it was still part of the same ongoing enterprise.

CALLINAN J: Mr Glynn, there is one matter that I wanted to ask you about. The Court of Appeal said that Heiser had extremely good prospects of rehabilitation as a justification for the disparity that would still remain after the adjustment of Heiser's sentence. Was there any suggestion that Cook could not have been rehabilitated?

MR GLYNN: No, your Honour. In fact, Cook, I think your Honour will see in the record or in the Court of Appeal's remarks, Cook had, the court said, effectively no prior criminal history.

McHUGH J: Yes, but Cook's attitude was very difficult. He appears, from the material, to have taken the attitude, "Well I've got the money, you do your best to get it back from me."

MR GLYNN: Yes, I do not know that I can - not only that, I think the court found that there was a much greater level of involvement. Cook was the chairman and he was - I think they have accepted the sentencing judge's view that he was really the major player.

CALLINAN J: He was 58 years of age.

MR GLYNN: Yes, but on the other hand, your Honour, 58 years of age and no prior convictions does not suggest that he - - -

CALLINAN J: It is a life sentence, almost.

MR GLYNN: It is a very lengthy sentence.

KIRBY J: But as against that, of course, I mean the writings on criminology it is often said that offenders of this kind, because they come to courts in suits and have good background, get sentences which are disproportionate to those that very minor criminals - I mean, 3.3 million, it takes an awful lot of small offences to add up to that.

MR GLYNN: Yes, but 12 years is a very substantial sentence for a 58 year old man who has never been in trouble with the law before either, your Honour.

KIRBY J: Anyway, that might be an interesting thing to think about in the appeal if you get special leave.

MR GLYNN: Yes. Your Honour, the point is that what the court has effectively done is that they have effectively increased the maximum sentence for misappropriation because the maximum sentence is 10 years.

KIRBY J: They are separate offences and he has been convicted of separate offences and they have punished him for the separate offences. Well, if Parliament likes to have separate offences, it is a question of prosecution policy and then sentencing policy.

MR GLYNN: Well, your Honour, you run the risk that the maximum sentence will then depend on how an indictment is framed and that if, for example, a person is charged with misappropriation, of a general deficiency, for example, they are subject to a much lower risk of punishment than someone who is prosecuted for the individual thefts, so that a tremendous amount will depend on who draws the indictment, how it is drawn, rather than the level of criminality and the important background matter which is the maximum sentence which is available for the type of offence in question.

KIRBY J: Really, you are putting forward a sort of totality principle, are you not?

MR GLYNN: Yes, in fact, in Hoad, your Honour, the court dealt with the totality principle but as a matter of amelioration.

KIRBY J: In Postiglione, this Court dealt with the totality principle.

MR GLYNN: Yes, but it is really an amelioration, or ameliorating principle in this rather than a principle which justifies increase, in my submission. In other words, although you might look at it and say for this amount of money you would normally award a sentence of 20 years, 20 years is far too high and it has to be cut back.

KIRBY J: Sometimes it can be fixed up by making sentences concurrent.

MR GLYNN: And in fact in my submission that is correct. What the court here has done has made them cumulative but it has not just made them cumulative, it has done it against a background circumstance that it is a single enterprise and against the background circumstance that the sentence that is imposed goes beyond the maximum that would be available had he, for example, been charged in relation to a general deficiency covering the whole amount. That is where, in my submission - - -

McHUGH J: But where is the point of principle involved? The principles set out in Hoad are well known, I imagine, to every Court of Criminal Appeal sitting in the country - not that I imagine, I know they are, and they are applied every day.

MR GLYNN: But they have been ignored, your Honour.

McHUGH J: Well, all you can say in this case is you claim that there is a single enterprise. That is not a view that necessarily commends itself to me at the moment. This is a case of setting up of an organisation. The indictment covered a period from what, January - - -

MR GLYNN: Ten months.

McHUGH J: 1990, until the end of the year. But brochures are sent out. You get conduct in relation to round robins and other attempts to conceal. The real question is whether or not the sentence of 12 years is too high. The way judges structure it may depend upon the individual circumstances, but it seems to me this is just an appeal against an excessive sentence.

MR GLYNN: Your Honour, my submission is not. If your Honour has a look at page 22 of the record starting at about line 30, and if you go over to page 23, your Honour will see that the court really has simply ignored the principles set down in Hoad. In fact, it has reduced them to no more than a footnote.

KIRBY J: But if every time there was a suggested departure from sentencing principles, this Court had to supervise - I mean, already we are doing an awful lot of criminal cases, more than our predecessors did.

MR GLYNN: But, your Honour, with respect, that should not prevent where a court - the Court of Appeal in Queensland has effectively said that the principles in Hoad do not apply. That is what they have effectively done. They have followed Ollis and Andersen which really never looks at the principle. Ollis and Andersen, the court simply said that the sentence was okay. Here, they have said in respect of, for example Hoad at line 20 on page 23:

Our attention was directed to a number of cases, which we do not think necessary to discuss.

Now, that is going to be treated, with respect, from now on as being - establishing the principle that Hoad can, in appropriate cases, be ignored and that sentencing courts may go beyond the statutory maximum despite the fact that it is, with respect, a single enterprise because the court itself really treats it as being - or certainly does not demur from the proposition that it is a single enterprise because at page 22 they refer to the submission, at line 30:

It was submitted for Cook that the offences which he committed constituted a single transaction or enterprise over an extended period of about ten months, and that there was no justification for a sentence in excess of the statutory maximum.

They then go on to say in the next paragraph:

However, there is no principle that no matter how many offences are committed, how long the period over which they are committed, or how much is involved cumulative sentences exceeding the maximum permissible for a single offence should never be imposed.

So it brings into play the principle in fairly stark terms.

KIRBY J: Yes, but this is always a matter of assessment because I have sat in a Court of Criminal Appeal where a person often, because of drug addiction, is engaged in a series of armed hold-ups of petrol stations and so on, and they are within days of each other but they are conventionally treated as separate offences, and they are within days, not nine months.

MR GLYNN: But your Honour, by the same token, where, for example, in Hoad's Case what you had was a man in the business, as it were, of stealing and changing the identity of motor vehicles, there was some 85 offences over a long period of time and the court there said, "It is a single enterprise". Here, again, what you have is, effectively, misappropriation of $3.3 million broken into two charges simply because the vehicle used changed and the other 39 charges are really particulars of how the money went into the company to be misappropriated. You cannot get a much clearer example of a single enterprise than that. It is very different from the drug addicted armed robber who commits a series of robberies over a short space of time.

McHUGH J: But this applicant committed all sorts of crimes. There are no more than one dishonest application of money. He was charged with general deficiencies. It has gone on for years. There were brochures put out. A whole scheme was designed and carried out. Talking about the general principles in this sort of case seems to me to be a little unreal. The real question is, was the sentence of 12 years, however it was structured, too heavy for this criminality?

MR GLYNN: Your Honour, with respect, firstly I do not think that is an approach that I can adopt in this Court and secondly - - -

KIRBY J: There is no special leave in that.

MR GLYNN: That is right, it is not a special leave point and secondly, to say that because he has behaved very badly you can put the principles to one side means that there are no principles of sentencing.

McHUGH J: Well, yes there are. It has always been recognised that these statements such as is found in Hoad are not concrete rules never to be departed from. For good reason, one can depart from them. And the Court of Criminal Appeal in this particular case seemed to take the view that this was a case where they should depart from them, or at least that is one view of what they said.

MR GLYNN: Your Honour, the response to that is simply that there is obviously room, but that room should not extend beyond the statutory maximum for the effective conduct which is misappropriating $3.3 million.

KIRBY J: I suppose you have this going for you. This Court has said in recent cases that it wishes to encourage the principle of charging for specific offences and judges having to direct for the specific offences, and juries being able to reach differential verdicts on specific offences. Maybe the corollary of that is that, if then you get a sentence, an ultimate and total aggregate sentence, which is greater than would have been the case if the general single offence had been charged, if that is a consequence of this policy of specificity, then that is a matter of general importance that should be considered.

MR GLYNN: Yes, your Honour, if I could, with respect, adopt that. I think I dealt with your Honour's question, I hope I did.

CALLINAN J: Yes, you did.

MR GLYNN: I do not think there really is anything further I can advance, your Honour.

McHUGH J: Yes, Mr Meredith.

MR MEREDITH: Thank you, your Honour. The first issue is whether this point of special leave, being of general importance, this Court in Lowe held that it has to be a point of general accordance and a gross violation of the principles of sentencing prescription. It is our submission that there was not a violation of the principles of sentencing discretion, let alone a gross one. If you go to Hoad, which was referred to by my learned friend on page 315, the court there summarises the issues that should be covered. They first ask two questions:

(a) is there some clear reason why the sentence should be served cumulatively?

Well, the court had Hoad, and Campbell and Brennan and Henderson and Webber, cases which this Court has been referred to, referred to it, and it referred to them in the footnote. It had them on its mind and considered them.

KIRBY J: Did not the court here say this was to be viewed as one enterprise, the Court of Appeal?

MR MEREDITH: A single enterprise, but not a - to use the words in Hoad - "a one incident".

KIRBY J: Of course it is not one incident.

MR MEREDITH: No, and it is over 10 - - -

KIRBY J: It is a scheme.

MR MEREDITH: Yes.

KIRBY J: And he has conceived it and he has taken the little steps on the way to effecting it and it surely cannot depend, as was put to the applicant, on the number of charges that a prosecutor then elects to find in his indictment.

MR MEREDITH: No, but, I noted that my friend said, "Well that depends how the indictment is framed." Well, at the time that the indictment was framed, and I framed it, so I am talking about - I know what was the issues involved - - -

KIRBY J: Nobody is criticising the framing - - -

MR MEREDITH: No, there was 1,700 - - -

KIRBY J: Nor asking for evidence from the Bar table.

MR MEREDITH: No, but there were 1,700 complaints, so the Crown, at a very early stage, had to make a choice about how it would indict and with the idea of - with the decision in Ollis and Andersen to refer to, it is incumbent upon the prosecuting authority to make a choice about what it sees, what it is alleging to the court, as the seriousness of the offence and, with respect, that is what the indictment was framed to do. It put the amounts that were represented by the wilful false promise, its two counts of misappropriation and, as my friend said, they are divided in two because the applications went to one company and then went to another company after a certain time. And then it also put in the specific wilful false promises that were the subject of those misappropriations. It did that with - it is legitimate for the Crown to do that with an idea that the appropriate sentence could be structured as it was in Ollis and Andersen. So when my friend says, "Well it depends on what the Crown does", well, of course, the Crown must make a choice about how serious it regards it and try and convince the court of that. I submit that is what the prosecution did, if not before the sentencing judge, certainly before the Court of Appeal,.

KIRBY J: If it is to be viewed as one conception carried out by lots of little acts, it does seem quite a high aggregate sentence. I know we are not concerned in reviewing sentences but it raises a question as to whether an incorrect sentencing principle has affected the sentencing judge's discretion.

MR MEREDITH: Well, yes, there is the authority in Queensland for Ollis and Andersen, although the court had that, and it is a very similar case, only considerably less money, but the same sort of scheme. But as the court says, the number of times must make a difference. If you engage in an operation and it goes for a short time and you stop, or you stop by your own choice, or you keep going for a long time, then it must be regarded as more serious. I mean, the more times you do it, it does not multiply; if you do it twice you get twice the sentence. But if you do it a thousands times, it must be more serious than if you do it a hundred times and that is a legitimate consideration the Court of Appeal took into account when that section that my learned friend referred to at the bottom of page 22. In answer to that first question:

is there some clear reason why the sentence should be served cumulatively?

They say, yes. The criminality here is such that it deserves that. And then they took into account the totality. The second question is:

is the combined sentence out of proportion to the combined seriousness of the offences?

And they had that in mind. And they answered, no, that is what it is, it is a matter of judgment on their part and they have an authority of a previous decision of the Court of Criminal Appeal.

CALLINAN J: Mr Meredith, did the Crown appeal in Heiser's case only after the appeal or the application for leave to appeal was made in Cook?

MR MEREDITH: No, they were done together.

CALLINAN J: What do you mean? They could not have been done accidentally, simultaneously filed together. It was a Crown appeal, was it not?

MR MEREDITH: Yes, there was a Crown appeal.

CALLINAN J: That is what I mean. The Crown appealed in Heiser.

MR MEREDITH: Yes, the Crown appealed against the sentence in Heiser and against the sentence in Cook.

CALLINAN J: Yes.

MR MEREDITH: Then Cook appealed against the conviction and the sentence.

CALLINAN J: Right, and also sought leave to appeal against the sentence.

MR MEREDITH: And then he abandoned the conviction appeal, right.

CALLINAN J: I see, thank you. I had the impression that Cook applied first and then Heiser, an application was made by the Crown in Heiser. All right, thank you.

MR MEREDITH: Heiser did not appeal against the conviction and he was answering the Crown's appeal against his sentence.

CALLINAN J: Yes, it was the order that I was interested in.

MR MEREDITH: The Crown put them in first and then Cook put in his application against conviction and sentence. The third of the - not so much a question, but a statement:

sentences imposed in respect of offences arising out of one incident or transaction are ordinarily ordered to be served concurrently;

That obviously does not mean that they must be and the court, having that in mind, decided this was a case, because of the nature of the offences, the extent and the amounts involved, that it was one that stepped out of that. So my friend says that they had ignored Hoad and that they give a message to the other sentencing courts that Hoad should not be followed. That is not so. They do not say anything against that. In fact, they say they are noting Hoad and they are not specifically overruling anything in it. They say this is a particular case where, although there might be one enterprise, that a cumulative sentence is not inappropriate.

CALLINAN J: Mr Meredith, can you help me a little. Accepting the various propositions about the circumstances in which this Court will take on a sentencing matter, whether it is a gross violation or something of that kind, for my own part, I am concerned about a sentence of 12 years in this case for a man of 58 years of age, when the other man was a professional man of 48 years of age who, I think, ends up with seven years. Is that correct?

MR MEREDITH: Yes.

CALLINAN J: Now, part of the matrix, those facts are part of the matrix and have to be considered a principle. Now, I tell you frankly I am concerned about that aspect of the matter and I would like to hear you on it.

MR MEREDITH: If the sentence really offended the court, in the sense that they said this is just out of proportion, then that would be an indication that something has gone wrong in the sentencing process.

CALLINAN J: That is why I wonder if you can help me on this aspect.

MR MEREDITH: I submit that that is not the case, that the clear case of Ollis and Andersen was one that the court could rely on for a comparable sentence. But more importantly, in relation to Cook and Heiser, the trial judge's sentence, the Crown appealed against Heiser's sentence that it was totally inappropriate, that it was not adequate and the Court of Appeal agreed with them. When someone gets a low sentence, there is a reluctance on the Court of Appeal's point of view - - -

CALLINAN J: The double jeopardy principle has some application, I am convinced of that.

MR MEREDITH: Yes. So he went up, and my submission is if the Court of Appeal had been sentencing them together, then the disparity would have been not as great as it was in these circumstances. So that they said, well, Cook is more seriously involved, he is the one that gained the most of out, he is the one that really stood to benefit from it - - -

CALLINAN J: You have satisfied me on that aspect. What about the age, in respect of ages, or the age of Cook, 58.

MR MEREDITH: Yes, his effective sentence is 12 years. His expectation of parole is after six years. Ordinarily, white collar criminals are not the sort of people who are likely to not attract themselves to the parole board, so although he is sentenced to 12 years and it is possible he may serve that, realistically he is at least serving six. Now, that puts him into his sixties. That was a matter that was before the trial judge. His age was mentioned but there was no significant issue of his health, and that is not referred to anywhere in the Court of Appeal. So, it was not as though that was a special circumstance. He is 58, yes, that is something that is relevant but not of significant relevance, and there is no authority for someone who is in his fifties that he should get a sentence that is not appropriate. There might be - I cannot quote them but I know of cases when someone in their seventies, that certainly makes a - - -

CALLINAN J: Do we not look at the actual effect upon the wrongdoer, we do not sentence people - the courts do not sentence in a vacuum. They look at the circumstances of the person who is being convicted.

MR MEREDITH: By the nature of this offence, Cook's position in the community enabled him to commit this offence. His business contacts, and that was part of the evidence of the trial, of how he built up a number of contacts over many years and that allowed him to then use a number of agents all over the country which meant that this Friendly Society expanded at a great rate because he was able to use people in different States. In fact, he had very good contacts in Adelaide and that is where most of the complainants came from. It is because of his experience, which came with age, that he was able to commit this offence and his respect, what respect he had in the community, enabled him to do it. And he took the advantage of the respect that Heiser had, too, as a chartered accountant. So his age was in some way something that contributed to the commission of the offence. It gave him a cover that someone much younger might not have had.

Finally, in relation to the principles outlined in Hoad, the sentence for offences which are separate in character and seriousness are often made to run concurrently, although it is not of particular relevance to this case. They were quite closely related, the wilful false promise and the misappropriation. In fact, the wilful false promise was necessary so that the two accused could get their hands on the money. In my submission, there is not a gross violation of the principles of sentencing and the court was mindful of what its predecessors had said in Hoad and Webber and Henderson and did not ignore them, so it is not as though there is any confusion in the courts of Queensland as to what should be done about cumulative sentences.

There is no reason for this Court to step into clarify something that is confused nor, in my submission, is there a particular misapplication of the principles in this case. The only issue that my friend really makes is, is it possible to have cumulative sentences, so bringing about a sentence that is greater than the maximum for any one of them. In my submission there is no authority to the contrary and, in fact - - -

McHUGH J: Well no, there is one further qualification he puts to it, that is if the offences all arise out of a single transaction or enterprise. So, the proposition is, as I understand it, that it is error for a Court of Criminal Appeal to impose cumulative sentences exceeding the maximum permissible for a single offence, the subject of those sentences, if the offence arise out of a single transaction or enterprise. That is the proposition of law that is put up.

MR MEREDITH: In my submission, there is no authority advanced nor do I know of any that says it is not possible to do that. It is just that Hoad says it ordinarily would not be done. You need a reason for doing it. The court said the reason was the totality of the criminality involved. Now, I would only be repeating it, but the point was it must be open to a court to regard an enormous activity as something that makes the criminality greater even if - say he had misappropriate 3.3 million in one go, and as opposed to doing it over a long period of time and engaging in a complicated, sophisticated scheme as this, setting up a whole financial institution, it seems clear just for the purpose of misappropriating money from it, that would not be regarded as more serious than taking one lot of 3.3 million at one occasion.

McHUGH J: Well, yes, I must say I find it difficult, at the moment anyway, to accept that the principle as formulated is an accurate statement. It is very difficult to think, for example, when the maximum penalty for Commonwealth drug offences is 14 years, that if somebody had been engaged in importing drugs year in and year out, with hundreds of transactions, the maximum you would give the person is 14 years; you could give them 20 years or even 30 years. But if Mr Glynn's proposition is correct, 14 years would be the maximum.

MR MEREDITH: Yes, the court just cannot get around it. If there is a principle that says you cannot - if there is one enterprise, you cannot give more than the maximum, but in my submission there is no authority for that proposition. And that not only does the Penalties and Sentencing Act, section 156, it does not say very much but it says you can impose cumulative sentences, and Hoad envisages that, even in those circumstances, you can impose - - -

McHUGH J: Well, plainly you can when the offences are not committed as part of a single transaction or enterprise.

MR MEREDITH: Well, they allow that even if it is part of a single enterprise you could. They just say it ordinarily would be concurrent. They do not say it always must be concurrent - the third point (c) that is about point eight on page 315. It is a warning rather than a prohibition, in my submission. It is warning against imposing cumulative sentences, it is not a prohibition. I do not believe I can add anything to that.

McHUGH J: Yes, thank you. Yes, Mr Glynn.

MR GLYNN: Your Honours, just two points. Firstly, the totality principle that is referred to in Hoad - and it is not just dependent on Hoad - but is am ameliorating principle, not a principle which justifies an increase. The other point is that which my learned friend dealt with with Justice Callinan in respect of the double jeopardy principle. Both the sentences were increased so that the double jeopardy principle would have applied both to the new sentence for Cook, and the new sentence for Heiser.

KIRBY J: But what is your answer to Justice McHugh's question, because it may be that all one is saying, whether it is in cumulation of sentences or in the sentence predicament that is faced here, is that you get to the end of it and then you look back and see whether the total sentence is disproportionate to the total criminality. If we were to say that, we would be merely repeating what we said in Postiglione and in other cases.

MR GLYNN: My submission really is that - and this is obviously a point that his Honour does not accept, is that where you have to go beyond the statutory maximum, there is no warrant to do that. My learned friend says there is no authority. I accept that. But my submission is that this Court would become the authority for it.

CALLINAN J: What about the case of accumulated drug offences over many years?

MR GLYNN: It would depend, your Honour, really on whether they were part of a single enterprise or whether they were a number of enterprises and that would have to be a judgment that would be made at the time. But if, in fact, they were adjudged to be a single enterprise then, in my submission, the maximum would be 14 years. But sometimes where someone has been importing over a number of years, they in fact are not engaged in one enterprise but rather engaged in a series of enterprises and therefore can be sentenced cumulatively. And, of course, often there are - in fact, I think most of the offences permit, where there is sufficient drugs involved, permit life sentences in any event.

McHUGH J: Now, they do.

MR GLYNN: That is all. Thank your Honours.

McHUGH J: The Court will take a short adjournment.

AT 3.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.07 PM:

McHUGH J: The applicant seeks special leave to raise the following question:

Whether it is correct sentencing practice for a sentencing court to impose cumulative sentences in respect of some offences when all offences committed by the offender arise out of a single enterprise, particularly where the sentence exceeds the maximum penalty in respect of the most serious of the offences.

We do not think that the applicant has sufficient prospects of establishing a negative answer to that question to warrant the grant of special leave. Furthermore, when the total criminality of the applicant is considered, there is not such a gross disproportion between the overall sentence imposed on him and his criminal conduct to conclude that some error has occurred in the sentencing process.

Special leave is refused.

AT 4.09 PM THE MATTER WAS CONCLUDED