Barber v The Queen S114/1999 [2000] HCATrans 318 (16 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S113 of 1999

B e t w e e n -

PAUL ANTHONY HENRY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S114 of 1999

B e t w e e n -

STEPHEN ANTHONY BARBER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 9.34 AM

Copyright in the High Court of Australia

______________________

MR T.A. GAME, SC: If the Court pleases, I appear with my learned friend, MR P.J.D. HAMILL, for the first applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

Before I resume my seat we are agreed that it is acceptable in the Court that Mr Nicholson will go first in submissions.

GLEESON CJ: Yes.

MR J.C. NICHOLSON, SC: If the Court pleases, I appear with my learned friend, MR A.P. COOK, for the second applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR M.G. SEXTON, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR P.G. BERMAN, for the respondent in each matter. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Consistently with what has just been said, I presume everybody is agreed that these two applications should be heard together?

MR SEXTON: If the Court pleases.

GLEESON CJ: Yes, Mr Nicholson.

MR NICHOLSON: If the Court pleases, this is an application for special leave to appeal from the whole of the judgments of the New South Wales Court of Criminal Appeal given on 12 May last.

GLEESON CJ: Which judgments?

MR NICHOLSON: That is the guideline judgment and the judgment in respect of Barber v The Queen and Henry v The Queen.

GLEESON CJ: What do you mean "appeal from the guideline judgment"? Did the guideline judgment make an order against your clients?

MR NICHOLSON: Well, your Honour, it did not, but it was used, we argue, that is, the findings of the guideline judgment were used against the applicant.

GLEESON CJ: You may or may not be right about that and that, as I understand it, is a matter of contention to which we can come. But, presumably, what you seek leave to appeal against is orders, not reasons for judgment.

MR NICHOLSON: There were findings contained in the guideline judgment and, in particular, findings in respect of the level of sentencing that was applicable to the offence of armed robbery within New South Wales.

GLEESON CJ: But, presumably, what you would seek to do if your appeal succeeded would be to have us set aside some orders made by the Court of Criminal Appeal.

MR NICHOLSON: Or to set aside the fact of making guideline judgments.

GLEESON CJ: You cannot set aside a fact. That is one aspect of life, Mr Nicholson.

GAUDRON J: There may be a question whether the guidelines are in any event something that can be the subject of appeal under section 73 of the Constitution, it itself not having purported to determine any rights, liabilities, or impose any sentence.

MR NICHOLSON: That may be so, your Honour, but we would argue that the approach of the court in the past to that issue has been one of, if I can put it this way, a practical approach, that it has taken the view that giving authoritative decisions on questions of law, in effect, comes within the concept of a judgment.

GLEESON CJ: Mr Nicholson, what actually happened to your client and to Mr Game's client was that the Crown appealed against sentence and the Court of Criminal Appeal, substantially for the reasons given by Justice Simpson, as I understand it, said that the head sentence should stand and altered the minimum and additional terms. In so far as your clients have a legitimate complaint, it is against that order, that is, the alteration of the minimum and additional terms. That is what you would be seeking to undo if you got leave to appeal to this Court and if your appeal succeeded. Presumably, your object is to restore the relationship between the total sentence and the minimum term established by the original sentencing judge.

MR NICHOLSON: Your Honour, certainly at the end of the day, that would be part of the exercise, but the obstacle in the way - - -

GLEESON CJ: What else could there be in terms of orders by this Court?

MR NICHOLSON: It is our submission that the obstacle in the way of doing that is the findings by the Court of Criminal Appeal exhibited in the guideline judgment.

GLEESON CJ: You see, you seem to be confusing a judgment and reasons for judgment. The judgment, decree, order or sentence with which you are aggrieved is the order reversing the decision of the judge at first instance to the extent to which I have just mentioned. Now, the reasons why that happened may be things that you do not like, but the appeal is against the decision, is it not?

MR NICHOLSON: Well, from the perspective of the applicant, I guess that is so.

GLEESON CJ: I mean, there is a problem about parties, is there not? As I understand this guidelines judgment, there were other appellants or respondents involved apart from the people presently before us. What is supposed to happen to them? Are they going to be involved in this appeal?

MR NICHOLSON: Well, they are not, your Honour.

GLEESON CJ: No. Well, then, if this is an application for special leave to appeal against the guidelines judgment, it is defective for want of parties, is it not?

MR NICHOLSON: That may well be so too, your Honour, in which case then the appropriate course for me to do is, I suppose, to develop the arguments that relate particularly to the - - -

GAUDRON J: That does not mean to say that you cannot develop the argument that there is error shown in the actual judgment concerning your client by reference to the guideline judgment.

MR NICHOLSON: No, I intend to do that, your Honour, yes.

GLEESON CJ: I notice that - are you appearing for Mr Henry or Mr Barber?

MR NICHOLSON: No, Mr Barber.

GLEESON CJ: I have not picked up Mr Barber's. Mr Henry's application for special leave to appeal is against a judgment, not against two judgments. But, as Justice Gaudron says, it may be that you can persuade us that we can find error in the judgment against which you properly seek leave to appeal by cross-reference to the guidelines judgment in some way.

MR NICHOLSON: That will impact substantially upon where we would start. Your Honours, the issue that we now seek to raise is that when resentencing the applicant, the Court of Criminal Appeal, we would argue, should not have taken into account the guideline judgment or fresh evidence tendered in the Court of Criminal Appeal as relevant to the guideline judgment.

GLEESON CJ: Was I right when I put to you that the reasons for the decision against which you seek leave to appeal were substantially those given by Justice Simpson?

MR NICHOLSON: Yes, your Honour.

GLEESON CJ: Where in the reasons of Justice Simpson do we find her making the errors of which you complain?

MR NICHOLSON: Yes, your Honour. Your Honours, in paragraph 84 of her judgment - perhaps the starting point, if I may, is this, that the findings made by the Chief Justice in the original guideline judgment, which are at 152 of the application book, were these, that the:

(i) Non-custodial sentences -

of which there were, I think, 18 per cent -

are not confined to exceptional cases. The fact that 147 individuals received non-custodial sentences out of a total of 835.....is not consistent with an "exceptional case" test.

Secondly, that:

(ii) the leniency of sentencing pattern is also suggested in the full terms. (Over 60% of those who were in fact sentenced to prison received one fifth or less of the maximum, i.e. four years or less).

Nextly, that:

(iii) The pattern of leniency is reinforced by the extent to which the statutory ratio between minimum and fixed terms has been altered so that over 60% of those who do receive prison sentences, receive a minimum or fixed term of two years or less.

GLEESON CJ: This is all leading up to his conclusion that there is a justification for "the promulgation of a guideline judgment".

MR NICHOLSON: That is right, and these, we would argue, are findings that the Chief Justice made in respect of the current level of sentencing - - -

GLEESON CJ: How did they impact on the reasoning of Justice Simpson?

MR NICHOLSON: Yes. Now, in paragraph 84 on page 97 of the application book, she observed that:

The Crown has argued that, having regard to all the circumstances, the total term imposed in each case was manifestly inadequate. I am not persuaded that this is so, and this view is strengthened by reference to paragraphs 164 to 167 of the Guideline Judgment -

and I will take your Honours to those paragraphs - - -

GLEESON CJ: Although that looks as if it is a finding in your favour.

MR NICHOLSON: True it is, but it is not the finding in my favour, but the reasoning process that I am seeking to look at; and 164 deals with:

two principal reasons why a sentencing range is appropriate for this offence:

(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii) Many of the seven identified characteristics contain within themselves an inherent variability -

and then he gives examples.

In my opinion sentences for an offence of the character identified above should generally fall between four and five years -

and he has arrived at that figure after consultation.

GLEESON CJ: She is there talking about the head sentence, is he not?

MR NICHOLSON: She is there talking about the head sentence and it is true that she is seeking to dismiss a Crown argument in paragraph 184, but she does so - - -

GLEESON CJ: Yes, she rejects the Crown submission that the head sentence was inadequate by reference to that part of the guideline judgment.

MR NICHOLSON: Yes, she does so by reference to the guideline judgment. Then elsewhere - - -

GLEESON CJ: To put it bluntly, Mr Nicholson, where do we find her using the guideline judgment against you?

MR NICHOLSON: In the result, that is the three years. If I can take your Honours to the graph which is probably better illustrated in the - you see, the minimum term that the applicant had received was a term of 15 months. Now, if you had regard to the graph which is perhaps better illustrated in the reported decision of Henry at page 370 - - -

GAUDRON J: I do not think we have that, Mr Nicholson.

GLEESON CJ: Is this in the application book?

MR NICHOLSON: No, it is one of the authorities, your Honour. It is an authority handed up by my learned friend - your Honours have a copy of it.

GAUDRON J: Yes, thank you. It is the last judgment in the bundle.

MR NICHOLSON: Yes. It is in the application book, but it is almost indistinct in the application book I have, and I just assumed that your Honours would be better served by having reference to it at page 370. Your Honours will see that the sentence of 15 months, which would be regarded as 18 months on the graph on page 370, falls in what I might call the median area and, indeed, 45 per cent of offenders are either treated equally or more leniently - - -

GLEESON CJ: These are from the New South Wales Judicial Commission's JURIS system which judges and magistrates routinely refer to on their computers.

MR NICHOLSON: Yes, your Honour. The argument is that if one has regard to two things - 18 per cent of people are not receiving a full-time custodial sentence, and of the 82 per cent who do, 45 per cent are either in the same group or receiving a sentence of less severity than the applicant - then our argument is that the sentence that the applicant had received was not manifestly excessive prior to the guideline judgment. Two things came about as a result of the - - -

GLEESON CJ: Firstly, the guideline judgment is not the original source of these statistics. As I said, these are statistics that are kept by the Judicial Commission and have been for years.

MR NICHOLSON: Yes. I took your Honours to the findings by the Chief Justice at page 152 and his findings were based in part upon those figures, that is, the findings that up until this point in time there has been a leniency and an inconsistency. The argument that I am seeking to advance is that but for the guideline judgment the sentence that the applicant had received at the hands of the first instance judge was not one that was manifestly inadequate.

GLEESON CJ: Where do we see that in Justice Simpson's reasoning? I cannot at the moment see her using the guideline judgment against you. I can see her in one respect using it in your favour.

MR NICHOLSON: What she has done is she has - if I can take your Honours to 152 of the application book, point (iii):

The pattern of leniency is reinforced by the extent to which the statutory ratio between minimum and fixed terms has been altered so that over 60% of those who do receive prison sentences, receive a minimum or fixed term of two years or less.

GLEESON CJ: This at present is a case, is it not, in which the sentencing judge departed from the statutory requirement to explain why he was giving a relationship between minimum term and head sentence that was different from what used to be sometimes called - there was a very provocative term that used to be used about it - "the norm".

MR NICHOLSON: Yes. The "statutory norm", yes, until it was found it was not a statutory norm at all.

GLEESON CJ: Many hours were devoted to "the statutory norm", yes.

MR NICHOLSON: Your Honours, our argument is that her Honour has increased the sentence beyond the two-year threshold that was complained of in the guideline judgment as being excessively lenient to three years, and she has come closer to the statutory norm by bringing the sentence up as a greater proportion of the full term.

GAUDRON J: Where is the error of sentencing principle in that approach? How do you identify that?

MR NICHOLSON: We say the error of sentencing principle is the application of the guideline standards.

GAUDRON J: But the guidelines do not deal with minimum terms.

MR NICHOLSON: Well, in our submission, they do.

GAUDRON J: Minimum terms are dealt with by Act of Parliament.

MR NICHOLSON: They are, except where the judge finds special circumstances, and then he - - -

GLEESON CJ: In which case he has to give reasons, which did not happen here.

MR NICHOLSON: No, but Justice Simpson supported the - I mean, that was one of the arguments that the Crown put and it was an argument that did not succeed. Justice Simpson said that there were, as I recall it, adequate grounds for the making of special circumstances, and she herself made special circumstances.

GLEESON CJ: Yes.

MR NICHOLSON: But what she has done is she has brought the sentence up to a level that would now be acceptable within the guideline in the case of a sentence that had already been acceptable pre the guideline if one has regard to the statistics.

GLEESON CJ: She identified manifest error in the process of sentencing at first instance because the sentencing judge did not explain why he was giving less than the minimum term that would have been required absent special circumstances. She then re-exercised her own discretion. Where do we find any error in the way she exercised her discretion?

MR NICHOLSON: If your Honours are not with me on the proposition that I am seeking to advance which is that she has relied upon the guideline to come to that figure, then there is nothing further I can really put.

GLEESON CJ: I understand the way you put it.

MR NICHOLSON: If the Court pleases.

GLEESON CJ: Yes, Mr Game.

MR GAME: I wanted to put one or two specific submissions, but they do join issue with something that your Honour the Chief Justice just said a moment ago which is that her Honour re-exercised the discretion, because we do not accept that that is what occurred in this case. The non-compliance with section 5(3) in the circumstances was, we submit, really immaterial, given the fact that her Honour both accepted that there were special circumstances and that the Crown in the court below had conceded that there were special circumstances.

What we submit happened in this case is this: her Honour found that this sentence was not manifestly inadequate and that the sentences were not manifestly inadequate. Her Honour accepted that there were special circumstances. The Crown had accepted below that there were special circumstances, but her Honour thought that there was manifest error in respect of the minimum term that was imposed, and that was for a specific reason, not concerned with the re-exercise of discretion at all but concerned with the fact that the minimum term was lower than that which was commensurate with the objective gravity of the crime. That appears in paragraphs 76 and 78.

I am sorry to descend into percentages, but special circumstances allow the judge to impose in effect a minimum term of less than 75 per cent of the sentence; 75 per cent of this sentence of 51/2 years is 4 years 11/2 months. Now, the sentence imposed, in fact, is 31/2 years which is 64 per cent. Now, the point is a simple one.

GLEESON CJ: Sixty-four per cent of what?

MR GAME: Sixty-four per cent of 51/2.

GLEESON CJ: Of the head sentence?

MR GAME: Sixty-four per cent of the head, yes. Now, the point is really this, that what has happened, we submit, is that her Honour has lost sight of the double jeopardy principle because what she has actually imposed is the minimum term that might be appropriate if this had not been a Crown appeal because, otherwise, how do you get to 64? You would not say, "Well, this is an appropriate case to vary the sentence, we will make it 72 per cent", or something like that. We have gone from a minimum term of 18 months, which is 27 per cent of 51/2 years, to 3 years 6 months, which is, as I say, 64 per cent.

So when you couple that with the fact that she does not mention double jeopardy at all and she does not mention the principles relating to Crown appeals and she is in the majority on this question because she was joined by Justices Newman and Justice Wood - and we might mention that Justice Spigelman seems to have foreseen this problem because he mentions double jeopardy and he mentions that the overall sentence might have been somewhat high, but there is a problem with that as well because this was not the type of case that falls within - there are some respects that do and do not fall within that category of incidence said to be the guideline, but the last category in the guideline was a plea of guilty with minimum weight and the sentencing judge in this case gave the pleas of guilty great weight. If there is a problem with the guideline, we would see it in that particular area, because pleas of guilty have very considerable variation. The variation in this is between four and five years. I should say, with respect, that we do not see error in the discretionary approach taken by the Chief Justice to how one approaches the giving of a guideline. So we have the double jeopardy problem and the way in which the minimum term has been imposed by the majority.

Then we have a second problem, which is this, that the sentencing judge - - -

GLEESON CJ: The double jeopardy problem being that Justice Simpson did not mention it, although the Chief Justice who agreed with her did.

MR GAME: Yes, she did not mention it but two other judges agreed with her. But the problem is not only did she not mention it, but the little calculation I have just given you shows that she did not mention it and she did not apply it.

GLEESON CJ: Well, it is the second that is perhaps rather more important. I mean, for all we know the other two judges agreed with her in the light of having read the Chief Justice's agreement referring to double jeopardy.

MR GAME: Yes, that is possible, but an examination of what happened is that she did not apply it, and they specifically agreed with her reasons.

GAUDRON J: First of all, I do not know where this double jeopardy notion comes from in relation to Director's appeals.

MR GAME: It has been around for a long time, your Honour.

GAUDRON J: I know it has been around, but ultimately the question was manifest inadequacy and then resentencing. Her Honour found manifestly inadequate, did she not?

MR GAME: In respect of the minimum term, yes.

GAUDRON J: Yes, and she resentenced.

MR GAME: Yes. But there is another step according to a long line of cases about Crown appeals, one of which is a decision of your Honour the Chief Justice in a case called Allpass in the New South Wales Court of Criminal Appeal which has been applied many times, that you do have regard to the fact that it is a Crown appeal in resentencing and that you do impose a lesser sentence. Now - - -

GAUDRON J: In this case it would be a lesser sentence than the statutory requirement.

MR GAME: No, it would be a lesser sentence than the judge should have imposed in the first place. The double jeopardy is the fact that the person comes to court with an 18 - double jeopardy has a particular bite when a person goes from a non-custodial sentence to a custodial sentence.

GLEESON CJ: Exactly.

MR GAME: But it also has a bite when you are serving 18 months, you are some months into the sentence and you come to court, and they say, "Sorry, it's not 18 months, it is actually - - -

GLEESON CJ: Well, Allpass, as you may remember, was itself a case in which there was an attempt made to change a non-custodial sentence, in relation to a very elderly man whose crime had attracted a great deal of public attention, to a custodial sentence.

MR GAME: Yes.

GLEESON CJ: The weight that that particular factor has does depend on the circumstances and, importantly, whether somebody is trying to put in prison somebody who had not been sent to prison in the first place.

MR GAME: Of course, and I would accept and I think it is unquestionable that it has more bite, and it is certainly more significant, we would submit, and the cases have accepted for a long time that it still has a cogent application with respect to what the new sentence is, and we would submit that that manifestly has not been acknowledged in this process.

GLEESON CJ: The way the English judges refer to it often is that you will read them saying, when they are resentencing after a successful Crown appeal, "I think the least sentence that could properly have been imposed at first instance was so-and-so", and that is it.

MR GAME: True. The second point is this, and it is referred to only by Justice Hulme in dissent, who would have imposed much longer sentences. There were two other offenders sentenced at the same time and one could accept that his Honour - and I think it is unquestionable - attempted to achieve relative parity between those sentences. They had different circumstances and, in the instance of my client, one more offence but the sentences sought to achieve a descending parity between those four offenders. They were all up to their ears or eyes in the armed robbery of May 1998. One got a non-custodial sentence, one got a very short custodial sentence and the two applicants here got custodial sentences.

Now, we would submit that the majority decision in Postiglione acknowledges that one must seek to achieve, if one can, relative parity between offenders, even if there are different circumstances. For example, in Postiglione there was a whole different custodial history, a dramatically different custodial history. Now, what has occurred in this case is that relative parity has been destroyed. Now, the court has delivered a guideline and said the sentence should be - the sentences - the courts have been unduly lenient. We said before the courts have been unduly lenient before, but now - - -

GLEESON CJ: Nobody has taken any notice of us.

MR GAME: Nobody has taken any notice of us, and the statistics are wrong - sorry, the statistics are right, but the statistics are too low. But the judge in this case had the statistics and he presumably attempted to achieve parity applying those particular statistics, and one of the particular complaints was that people were not going to gaol and that might well have applied to the particular prisoner - she was not a prisoner, but the particular individual who did not receive a custodial sentence. That parity has been destroyed by the court's intervention. Now, the court made no reference to that argument and it was probably the most significant part of the argument, coupled with the last point that I have mentioned, neither of which receive any attention at all. Your Honour suggested that we are seeking to reinstate the original sentences. It is a question of what the new sentence should be, error having been identified, and we submit that for those two reasons - and we submit that the guideline is brought back into it inevitably by those factors that I have identified.

One cannot escape from the guideline because the guideline actually does have application with respect of the minimum term because, as soon as you say it is not long enough having regard to the objective gravity of the offence, that has to be against some principle or some yardstick and the yardstick that the Chief Justice and Justice Simpson both applied was the yardstick of the guideline. So we submit that it is relevant for that particular reason, and it does - - -

GAUDRON J: Is it the yardstick of the guideline or the yardstick of the statutory requirement?

MR GAME: The statutory requirement is gone because, once you find there are special circumstances, you do not have to keep finding them, you impose a minimum term, applying Bugmy and Power, and we do not accept that the short statement of what the cases say is necessarily a full statement of it or correct in Justice Simpson's judgment. But be that as it may, at that point you impose a minimum term but it must still have regard to the objective gravity of the offence. That must be against the question of what is the minimum time that should be served in gaol for this offence, having regard to what is an appropriate sentence for the offence. Now, that does bring back the yardstick; it does not bring back the statutory provision.

GLEESON CJ: But ultimately Justice Simpson and those who agreed with her concluded that, having regard to the objective gravity of the conduct engaged in by these two offenders, notwithstanding the existence of special circumstances which they were prepared to accept, the minimum term imposed by the sentencing judge was too low and it should be increased as they increased it.

MR GAME: Yes, we can accept the first part of that proposition but not the second, and we submit that the second part - we have established that the errors occurred and that they are not met by anything that has been put against us. That really is the substance of the case as we see it, with respect to these issues.

GLEESON CJ: Thank you, Mr Game. We do not need to hear you, Mr Solicitor.

The decision of the Court of Criminal Appeal in these matters, by which I mean the decision in relation to the alteration of the minimum terms applicable to each applicant, which was substantially based on the reasons expressed by Justice Simpson, and agreed in by some other members of the Court, turned upon well-established discretionary principles. The guidelines judgment referred to in argument in these applications does not appear to have entered substantially into the reasoning of the Court of Criminal Appeal save in one relatively minor respect favourable to the applicants. The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The applications are refused.

Call matter No 3.

AT 10.09 AM THE MATTER WAS CONCLUDED