Allen v The Queen H7/1999 [2000] HCATrans 169 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H7 of 1999

B e t w e e n -

STUART WILLIAM ALLEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO SYDNEY

ON FRIDAY, 14 APRIL 2000, AT 10.21 AM

Copyright in the High Court of Australia

MR D.J. PORTER, QC: If the Court pleases, I appear for the applicant. (instructed by the Legal Aid Commission of Tasmania)

MR D.G. COATES: If the Court pleases, I appear for the Crown. (instructed by the Director of Public Prosecutions (Tasmania))

GLEESON CJ: Yes, Mr Porter.

MR PORTER: Yes, thank you. If the Court pleases this case, in my submission, squarely raises, and does so in satisfactory form, a general point of public importance. That point of public importance is the question of the principles which govern Crown appeals against sentence as of right, particularly where manifest inadequacy is the sole ground, and subsumed within that broad question are the two questions set out at page 27 of the application book.

This honourable Court has consistently held that appellate intervention upon a Crown appeal against sentence is an exceptional jurisdiction, the exercise of which is attended by restraints even where leave is not a prerequisite. Those principles emerge from the authorities of Griffiths, Malvaso and Everett as referred to in the summary of argument and recently, I should say, reinforced in Bond v The Queen (2000) HCA 13 at paragraph 27.

GLEESON CJ: Have you looked at the decision of the Court of Criminal Appeal of New South Wales in a case of Allpass?

MR PORTER: Yes, your Honour.

GLEESON CJ: Do you have any quarrel with the principles stated there?

MR PORTER: No, your Honour, we do not quarrel with Allpass, and there is a subsequent case of Khan which I believe is referred to in the Crown's submissions which restates what was in Allpass. We do not quarrel with that at all, your Honour.

GLEESON CJ: What is unsettled about the principles?

MR PORTER: The principles are certainly settled by this Court and are, in the main, applied throughout the Commonwealth. The particular point which brings us to this Court, your Honour, is that there is a conflicting line of authority emerging or which has emerged from the Court of Criminal Appeal in this State.

GLEESON CJ: That may or may not be so, but it is a little difficult to see at work in this case, is it not?

MR PORTER: With respect, not, your Honour. The majority judgment in this case, in my submission, shows a clear failure to apply those proper principles. It is submitted, your Honour, that the approach of Justice Slicer, in dissent, in fact shows the correct application of the principles and demonstrates that a different result could well be reached.

GLEESON CJ: Correct me if I am wrong, Mr Porter, but as I read the reasons for judgment of the majority in the minority the point of departure between them simply turned upon an assessment of whether the sentence was manifestly inadequate.

MR PORTER: Your Honour, before reaching the question of the quantum of the sentence, the Chief Justice - and this is at the application book page 13 - said that he paid "due regard to the double jeopardy principle" and so "a sentence of three years' imprisonment should be substituted". My point is that a proper application of the principles would mean that the question of manifest inadequacy should be looked at as a threshold test, that is that should be examined before intervention. What his Honour the Chief Justice has there done is simply to say that the double jeopardy principle is to be recognised solely in the resentencing process.

GLEESON CJ: I am terribly sorry. If you look at the bottom of page 12 of the application book in the last sentence, which is introduced by everything that went ahead on that page, you find him concluding that the sentence imposed was "manifestly inadequate" and then he goes on to decide what sentence should be reimposed in the light of the double jeopardy principle. There is nothing unorthodox about that, is there?

MR PORTER: Not as to the latter stage, your Honour. My submission is that his Honour and the other member of the majority, Justice Wright, failed to apply the proper principles in that they failed to look at whether the sentence was so manifestly inadequate as to constitute an aberration so it was so manifestly inadequate so as to constitute error in point of principle. It is that kind of manifest inadequacy, your Honour, constituting error in point of principle which will only enable an appellate court to intervene. It is to be borne in mind, with respect, that this Court in Everett did speak in those very terms, that is they spoke of the kind of manifest inadequacy to constitute error in point of principle.

My submission to this Court is that the approach of the majority has not demonstrated the application of that principle to looking at whether the Court should intervene or not. They have simply not taken that step, if the Court pleases. What has occurred is they have simply said it is manifestly inadequate in their view, due regard is paid to the double jeopardy principle in the resentencing process. So they have missed out the first part of the step and, in fact, Justice Wright speaks of the propositions postulated by Justice Charles in Clarke's Case numbered 4 and 5 which is, in fact, recognition of the double jeopardy principle in the resentencing process. His Honour fails to allude to propositions numbered 1, 2 and 3 which are principles derived from Griffiths and Everett and which govern intervention in the first place.

So, to come back to your Honour's particular point at the start of this exchange, in my submission, it is plainly demonstrated on the face of these judgments that the majority has not applied the Griffiths, Everett principle looking at whether to intervene or not.

Now, I think I was going on to say that the majority judgment in this case represents a line of authority which has developed from the Court of Criminal Appeal in this State, that there is a divergent line of authority which has now been developed and that, in my respectful submission, requires correction by this Court. This case has as its progenitor the case of, certainly Harland-White.

GUMMOW J: But are you saying these cases in the Supreme Court of Tasmania are in conflict some way with Allpass?

MR PORTER: Some of them are, your Honour, and some of them are not and that is the very real problem.

GUMMOW J: Yes.

MR PORTER: There is a line of authority starting with Justice Wright's judgment in Harland-White which is Tasmanian Serial No 23/1997 where his Honour said:

The observations of the majority of the High Court of Australia in Everett v R.....do not appear to be applicable to an appeal where leave is not a prerequisite.

Now, his Honour was in the minority in that case. From there we go to the case of Meers which is referred to in the written submissions and the Chief Justice, Chief Justice Cox, accepted what Justice Wright said where he simply repeated what he had said in the Harland-White Case.

GLEESON CJ: But there is no mention of any of this in the reasons for judgment in the present case.

MR PORTER: With respect, your Honour, his Honour Justice Wright at pages 17 and 18 has repeated - set out in its entirety the passage from Harland-White and that is the passage to which I was making reference a moment ago and that is the genesis of what I say to your Honours is the problem where he says that:

"Once the merits of the appeal have been considered, the Court has a residual, but -

and I am looking at the top of page 18, your Honours -

limited discretion which appears to me to have been appropriately summarised by Charles JA - - -

and so on. Now, there is no quarrel taken with that as such.

GLEESON CJ: Am I right in thinking that Mr Justice Charles in Clarke followed Allpass?

MR PORTER: In that respect that is correct, your Honour, but Justice Charles in Clarke's Case also in his propositions numbered 1, 2 and 3, set out what, we say, are the principles derived from Griffiths and Everett which govern intervention and, if your Honours look at what Justice Wright said in Harland-White, I say again seems to be the genesis of this, his Honour expressly said there that the Griffiths, Everett principle does not apply where there is an appeal as of right and that the only point of recognition paid to the double jeopardy principle is after intervention.

His Honour said if the ground of appeal is a manifest inadequacy then that is determined as such that it simply determined whether it is manifestly inadequate or not then the double jeopardy principle comes into play in the resentencing process. My submission to this Court is that it is plain the proper approach is to look at whether it is the kind of manifest inadequacy so as to constitute an aberration or error in point of principle before intervention.

In my submission, if one looks at the passages from the Chief Justice's judgment to which I took the Court a moment ago and looking at those passages at pages 17 and 18 of the application book from the judgment of Justice Wright, it is plain, in my submission at least, that that approach has not been taken, that is the principles have not been applied in determining whether or not intervention should take place. As I say, the statement of the proposition set out by Justice Charles quite significantly, in my submission, omit his Honour's propositions 1, 2 and 3.

Now, in the cases of Harland-White, to which I have been making reference, and Woore, to which reference is also made in the written submissions, the majority have applied what I submit to be the correct principle and that is demonstrated by the judgment of Justice Zeeman in Woore's Case at page 2 of the judgment where his Honour referred to the sentence as "rather light", "a somewhat longer sentence might have been appropriate" but it did not stand out as aberrant. That, in my submission, is the correct approach which is not, in my submission, what has occurred in this case. This Court has followed a line of development from Harland-White through Meers to this case and your Honours can see the way that the courts have been constituted.

So, what has occurred, in my submission, is the development of a patent and marked inconsistency of approach by the Court of Criminal Appeal which, as I said a moment ago, in my respectful submission, requires correction, that the Crown - - -

GLEESON CJ: When you say that the question of whether the sentence was aberrant was not addressed by the majority, have a look at page 17, the last complete paragraph on the page.

MR PORTER: Yes.

GLEESON CJ: Mr Justice Wright said the sentence was:

surprisingly light. This was an arrogant and vicious attack by any standards.....The offender deserved condign punishment. A sentence of three years' imprisonment would have been very low -

Is not that saying in a variety of ways that the sentence was aberrant?

MR PORTER: No, your Honour, I would submit not. His Honour certainly expresses those views about the sentence but the critical part, in my respectful submission, is the explicit mention of the double jeopardy principle which, of course, underpins Griffiths and Everett, should only be given recognition in the resentencing process. I accept what your Honour says in terms of what may be derived from that passage to which your Honour referred but then, when one moves on, his Honour has said that the double jeopardy principle only arises in the resentencing process and it is an error by omission but the omission, in my submission, is a very significant one.

If your Honours go to page 19 of the application book which is the dissenting judgment of Justice Slicer it puts, in my submission, the judgments of the Chief Justice and Justice Wright in sharp contradistinction. In particular, at the bottom of that page, his Honour says:

I do not accept that proper regard can be had to those principles -

that is the Griffiths, Malvaso, Everett line of principles -

by the imposition of a lesser sentence once the ground of "manifest inadequacy" is made out.

It is clear, in my submission, that his Honour there recognises what is, in fact, the approach of the majority and he is taking issue with it. That represents, in my submission, the correct approach which is plainly, in my respectful submission, not apparent from the judgments of the majority. So, it is submitted that the approach of the dissenting judge highlights the omission and the failure to apply the proper principles by the majority.

Now, the point which we say is raised by this case is one of broader import in the geographical sense in that there has been some erosion, if I might put it that way, of the Griffiths, Everett principles in the State of South Australia where there has been an express statement that the principles do not apply to non-custodial sentences and at the very least there emerges some degree of discomfort in applying those principles to appeals as of right.

In summary, where we are at this point, if the Court pleases, there have been occasions on which the Court of Criminal Appeal in this State has failed to apply the correct principles governing Crown appeals against sentence as of right. There have been occasions when we accept that the correct principles have been applied but we now have two completely different lines of authority. It is an inconsistency in approach which can only be corrected by this Court.

In terms of the South Australian situation, the case of Police v Cadd has been referred to in the written submissions. There was at least a majority view, if not a unanimous view, that the principles did not apply when reviewing non-custodial sentences: the Chief Justice at page 159 and the other judgments at 172 and 174. A dissenting minority of two said that the Griffiths, Everett principles had no application where appeal would lie as of right and the majority expressed a view that there was scope for a more liberal approach as dictated by those principles.

Now, those comments do not sit, in my submission, very happily with the reinforcement of that principle which occurred via this Court in the Bond Case. It is respectfully submitted that there is a fundamental and demonstrable need for this Court to correct what, I submit, is a patent inconsistency in approach in the senior appellate court in this State. There is a need to confirm the application of the Griffiths, Everett principles to Crown appeals as of right and to clarify for the country whether there is, in fact, any limitation to the application of those principles depending on the nature of the sentence imposed or otherwise. If the Court pleases.

GLEESON CJ: Thank you, Mr Porter. Yes, Mr Coates. Time starts running when you get to your feet, Mr Coates, not when you start talking.

MR COATES: Sorry. If it please the Court, it is the respondent's submission there is no fundamental principle of law to be considered in this case and the authorities are applied - the Griffiths, Everett principles have been applied in Queensland, New South Wales, Victoria and also in South Australia in Allpass and although the Chief Justice in that case indicated some reservations about the principle, he stated that - - -

GLEESON CJ: I think you have the name of the case wrong. Allpass was a New South Wales case.

MR COATES: It was, sorry. Your Honour, in Cadd's Case Chief Justice Doyle in that case stated that although he had some reservations about the Everett principle, until told by the High Court to the contrary, it would be applied. In all those States there is no requirement for leave.

It is my submission in this case, the case of Allen, it is obvious from their Honours' judgments that "manifest inadequate" meant something exceptional. His Honour Justice Wright states at page 17 that he thought the sentence "surprisingly light", that three years would be light and therefore:

Two and a half years, with nine months suspended, was too low.

He also stated that, as a general principle, that crimes against section 170 of the Criminal Code would range somewhere between three and seven years. Reference has been made to his Honour's decision in Harland-White. In that case Justice Wright stated that Griffiths was a case that did not involve a question of leave to appeal against sentence so therefore, it was implicit in his judgment that it does apply to a case that leave is not required.

His Honour went on to state that the court's restrictions, as the court has been restricted by the abolishment of leave since the decision in Everett and that should be borne in mind with section 80 of the Sentencing Act which states the Court of Appeal cannot take into account Crown counsel's failure to address the court on sentencing which was the - - -

GLEESON CJ: Mr Coates, I do not imagine it is part of your purpose to seek to raise a question of principle where none exists in the particular case.

MR COATES: No.

GLEESON CJ: As I understand it, the essence of your submission is that the majority in this case did not just hold that the sentence was a bit light on. They held that it was manifestly inadequate and that was the point of difference between them and Justice Slicer.

MR COATES: Yes. With respect, Justice Wright said three years would have been light but probably be in range. However, a sentence of two years nine months was outside that range.

GLEESON CJ: That is the point, is it not?

MR COATES: Yes.

GLEESON CJ: They may have been right or they may have been wrong about what was inside or outside the range but they intervened because they thought, not just that it was lenient but that it was outside the range.

MR COATES: Yes, with respect, and this appeal is basically - the decisions are basically not one of principle but one of disagreement about what the range is.

GLEESON CJ: Thank you, Mr Coates.

MR COATES: If it please, your Honour.

GLEESON CJ: Yes, Mr Porter. Is there anything you want to add?

MR PORTER: If the Court pleases, a proper application of the principles requires a determination of whether the sentence was manifestly inadequate. It is then to be determined if the manifest inadequacy is of such a kind as to warrant interference. At the risk of repeating myself in reply, I simply stay to make the point again that the majority judgments do not disclose in any way at all that the proper approach was adopted, that is to say, yes, it may have been manifestly inadequate but was it of such a kind, was that inadequacy of such a kind to constitute error in principle and, in my submission, the judgments are devoid at all of any suggestion of that approach. As I say, the judgment of Justice Slicer demonstrates the correct approach. I do not have any other submissions in reply, if the Court pleases.

GLEESON CJ: Thank you, Mr Porter.

The Court is not persuaded that this case raises the questions of principles which the applicant seeks to argue. The point of departure between the majority and the minority was whether the sentence was manifestly inadequate having regard to the facts and circumstances of the particular case. On that point, there is an insufficient prospect of success of an appeal to warrant a grant of leave and the application is refused.

We are going to adjourn to deal with oral applications now.

AT 10.34 AM THE MATTER WAS CONCLUDED