Krakouer v The Queen P47/1999 [2000] HCATrans 338 (16 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P47 of 1999

B e t w e e n -

JAMES GORDON KRAKOUER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 10.32 AM

Copyright in the High Court of Australia

MR M.E. DEAN: I appear for the applicant, if the Court pleases. (instructed by Messrs Williams Ellison)

MR S.P. PALLARAS, QC: If the Court pleases, I appear with MS J.A. GIRDHAM for the respondent. (instructed by Director of Public Prosecutions (WA))

McHUGH J: Yes, Mr Dean.

MR DEAN: Your Honours, this is an application for special leave to appeal from a decision of the Court of Criminal Appeal of Western Australia delivered on 25 August 1999. The question, it is submitted, to be considered in this application is whether or not the law governing parity in sentencing in settled in Australia.

It is submitted that one aspect of it is not and that is whether or not parity in sentencing extends to cases not concerning co-offenders. Indeed, that was the substance of the application in the court below. There were other grounds but the three principal grounds dealt with that question.

KIRBY J: Did the court below specifically reject the submission?

MR DEAN: It did, your Honour, yes. In the court below and during the course of submissions, the presiding judge referred counsel to a decision of the Court of Criminal Appeal of Western Australia of Thorp v The Queen which is a case that I will come to in a moment. At page 12 of that judgment, Justice Ipp neatly, it is submitted, encapsulates the question that arises in this application. At page 37 of the transcript of the proceedings, his Honour referred counsel to the decision of Thorp and then raised with counsel the following matters. He said, in part:

I'm not saying the argument is untenable but it's a difficult one and might be one that will have to be taken further. On the face of it you have got four members of the High Court in Lowe and - Postiglione is not as clear but Gummow J was clear, and only Kirby J in Postiglione does say something that helps you. What he does say applies to offenders in a situation demanding comparison and contrast whereas you have got others where you say it applies only to co-offenders. So that's where I think the state of the law is.

KIRBY J: But the foundation of this Court's holding was the justifiable sense of grievance. I do not think in the bosom of prisoners they are quite so refined as to distinguish a sense of grievance on the basis of the particular fact of being a co-offender.

MR DEAN: Well, certainly that is consistent with our submission, your Honour, and indeed, if one applies the co-offender principle strictly, particularly in cases where joint members of a criminal enterprise are prosecuted in separate States, they are not going to be co-offenders anyway.

KIRBY J: Is Lowe specifically limited in its terms to co-offenders, or was it simply dealing with co-offenders?

MR DEAN: It was dealing with co-offenders.

KIRBY J: Therefore, the wider question did not arise.

MR DEAN: It did not, and - - -

KIRBY J: But if you look at the foundation of the principle, which is the justifiable sense of grievance, you have to look to what can rationally and legally give rise to such a grievance.

MR DEAN: Yes, I would accept that, your Honour, and when one examines Justice Mason's, as he then was, dissenting judgment in Lowe v The Queen, that judgment is based on principles of equality of justice rather than the strict application of a rule concerning co-offenders and parity applying to them. That has subsequently been picked up by her Honour Justice Gaudron in Siganto, which is a case that I propose to refer to.

KIRBY J: Would you ever have co-offenders in different States being prosecuted in different Supreme Courts?

MR DEAN: In circumstances such as these, they are being prosecuted in different jurisdictions under different enactments and so they would not in those circumstances be co-offenders, in my submission.

McHUGH J: But your problem in this case is that there is just no factual foundation for the principle which you seek to have determined.

MR DEAN: Your Honour, that is not strictly so, in my submission.

McHUGH J: First of all, the case against Higgs and Foster never rose above suspicion of them being involved in the offence for which your client was convicted and sentenced. Now, Higgs was sentenced in Victoria to one count of conspiracy to traffic, contrary to the Victorian Act. Foster was charged with trafficking in a drug of dependence and one count of aiding and abetting in the trafficking of a drug of dependence, contrary to the relevant Victorian statute. I mean, it would be a different thing altogether if they had been charged with being accessories, in some way, to a transaction for which Krakouer was convicted. But the evidence, far from suggesting that there was any association, tends to suggest the contrary.

MR DEAN: Well, your Honour, Foster was a named co-conspirator in the matter that Krakouer was prosecuted for. The drugs that Foster was dealt with for in Victoria were most probably the drugs that Krakouer received in Western Australia.

McHUGH J: You cannot put it higher than that it could have been, and, indeed, the evidence would suggest that it was not. I mean, this case would never rise above its facts, you would never get to the point of principle involved.

MR DEAN: Your Honour, the way that Justice Kirby expressed the question of principle in Postiglione was whether or not the offenders demand comparison and contrast. Now, here - - -

KIRBY J: Yes, but unless you have a factual foundation, then a court of law cannot, as it were, rise to the legal question. What is the evidence you rely on to link your client to the other two offenders who were convicted and sentenced in Victoria? What is the specific evidence, as distinct from speculation or possibilities?

MR DEAN: The specific evidence led in the matter concerning Krakouer in his trial?

KIRBY J: Yes.

MR DEAN: Well, the only evidence that I can point to is the fact that Foster was a named co-conspirator and that the arrangements that were made for the drugs that Krakouer was dealt with for in Western Australia were made by Foster.

McHUGH J: But, first of all, Foster was never charged in Victoria or elsewhere in relation to the particular conspiracy and Foster, I would have thought, was your weakest link. If you were going to make any sort of a case, it would have to be in relation to Higgs. I mean, what did Foster get? He got an almost trivial sentence, did he not?

MR DEAN: Two and a half years, your Honour, with 12 months to serve.

McHUGH J: Two and a half years, and you want to compare - he was convicted of trafficking in a drug of dependence and aiding and abetting trafficking in a drug of dependence. He got two and a half years for that and you want to equate that in some way with a sentence of 16 years.

KIRBY J: I read your submissions to be more directed to Mr Higgs - - -

McHUGH J: Exactly.

KIRBY J: - - - and that you were saying - and I read this - that he was the mastermind.

MR DEAN: That is what the sentencing judge found, your Honour, that Higgs was in charge of this criminal enterprise of which one aspect or one component was the offence committed by Krakouer.

KIRBY J: Your theory is that Mr Higgs was the person who organised the drugs and all that Mr Krakouer did was to drive to Western Australia with the drugs. Is that how you relate the two?

MR DEAN: He received them after they were delivered to him by Foster in Western Australia. Krakouer is a resident of Victoria.

McHUGH J: But Higgs, assuming he may have been under suspicion, but he was never charged, nor was he indicted or named as a co-conspirator in this.

MR DEAN: I accept that, your Honour, but - - -

HAYNE J: So, what is the comparison you say should have been made but was not?

MR DEAN: Well, the court refused absolutely to consider whether or not the sentence imposed on Higgs and the sentence imposed on Foster were proper matters to consider in Krakouer's matter, both when he was first sentenced for the second time and in the court below.

HAYNE J: But do you accept that both Foster and Higgs were sentenced for other criminal behaviour, that is, other than the criminal behaviour for which Krakouer was sentenced?

MR DEAN: Your Honour, in my submission, Higgs was sentenced on a representative count which encompassed the dates between which Krakouer's offence occurred and he was characterised as the principal or mastermind of the organisation that Krakouer participated in on a much lower level.

KIRBY J: Was that the characterisation of the first or the second sentencing judge?

MR DEAN: The second sentencing judge did not have before him the Higgs sentence because Higgs had not been sentenced at the time Krakouer was resentenced by Judge Viol on the second occasion. He did have Foster's sentence before him, though.

McHUGH J: Mr Dean, there is evidence before the Court from La Spina to the effect that Higgs was sentenced in respect of an entirely different course of conduct from that which gave rise to the charges against the applicant. Now, Higgs is not indicted, he is not charged, he is not even named as a co-conspirator. I mean, a more unsatisfactory vehicle for determining this question of principle would be hard to find.

MR DEAN: Well, your Honour, there is, in my submission, a clear question of principle to be determined.

KIRBY J: Well, that may be as it may be. The question is whether this is an appropriate vehicle for it, and if you do not establish the factual foundation, then the whole issue goes off and the opportunity is lost.

McHUGH J: We would be deciding an abstract question of law and we might uphold your general proposition and say, "However, it has nothing whatever to do with this case. The evidence fails to establish a factual foundation for the application of the principle".

KIRBY J: Is your best leg into it the fact that the sentencing judge called Mr Higgs the mastermind; is that it? Your client may suspect that he is the mastermind or may know, for all I know, and you may assert it, but a court can only act on what the evidence is.

MR DEAN: Your Honour, in the court below the respondent made some submissions about this question and it is accepted that Higgs and Foster were prosecuted for different offences to that which the applicant was prosecuted for.

HAYNE J: But also, is it accepted that they were prosecuted for different behaviour? True it is they are different offences, but was it different criminal conduct?

MR DEAN: Well, if your Honour means by that that the specific elements of the offence that Krakouer was convicted of - - -

HAYNE J: No, I mean was it the same drugs?

MR DEAN: Well, Higgs was not prosecuted for any particular drug. He was prosecuted for conspiracy to manufacture and, as far as whether or not the drugs were the same drugs that Foster delivered to Krakouer is concerned, I would again have to concede that the evidence is not strong on that question, although it is Higgs' daughter-in-law's car that is sent to Western Australia containing drugs arranged to be placed in it by Foster.

Now, in the court below - and it is referred to in the respondent's reply - the submissions that were made in this respect have been repeated and the proposition that is being advanced on behalf of the applicant in relation to his participation in a drug syndicate was accepted really in the court below by the respondent. Those submissions were made by Mr MacTaggart who was then appearing for the respondent. He said that Higgs, Foster and Krakouer were part of a drug syndicate, that Foster and Higgs were suspects for the transaction, for which the applicant was imprisoned, that the applicant was apprehended as a result of the investigation into Foster and Higgs and that Foster and Higgs were suspects in relation to the provision of methylamphetamine in the motor vehicle in which the applicant was arrested. The connection between the three was accepted by the respondent, in my submission, in the court below, that there was a connection.

True it is that the offences that they ultimately faced the court on were different to those that the applicant was dealt with for, but they were each participants in a drug syndicate that involved the distribution of drugs interstate. Of course, Krakouer was apprehended in 1994, came before the courts and subsequently Higgs' matter was resolved - if I can use that expression - and he pleaded guilty to what, in my submission, was a count that was representative of his overall criminal conduct.

Now, the case cannot be put any more highly than that in relation to the facts but there is, in my submission, a question of principle involved and each of the courts that dealt with the matter refused, effectively, to take into account these sentences at all. Can I point this out, your Honour, that when one examines what Justice Ipp did in Thorp, his Honour was not prepared to accept that the sentence sought to invoke the parity principle in Thorp's favour, that that person was a co-offender as well but, nevertheless, his Honour Justice Ipp took the sentence into account. Now, whether or not there has to be some strict evidentiary connection between the two offenders or the sentences does not, in my submission, fully answer the question.

KIRBY J: It looks as though you have a good point, but not in this case.

MR DEAN: That is certainly - - -

KIRBY J: It looks to me, at least, that you have a good point.

MR DEAN: Well, in my submission, the point is clearly - - -

KIRBY J: But it is no good coming up here unless you have the factual evidentiary foundation, I am afraid. In fact, it is counterproductive to the point of law, which is our chief concern.

MR DEAN: Well, I accept that, your Honour, but where does one - - -

KIRBY J: I do not put out of mind the fact that this seems, with respect, a very high sentence and maybe your client subjectively has a sense of grievance and maybe he knows things that we do not know and that are not on the record, but the Court can only act on the things in the evidence that link him and give rise to the justifiable sense of grievance. You just do not have it, I am afraid.

MR DEAN: But if, your Honour, there is a factual connection or an evidentiary connection, then it may be that the principle would be applied in relation to co-offenders. But if the principle is wider than that, if the principle is about equality of justice, then, in my submission, it is not necessarily determinative of the question as to whether or not there is an evidentiary connection.

KIRBY J: Well, the criminal Bar will know of this point and will ensure that the sentencing facts are before the courts to raise the issue so that it can be tendered cleanly and on the evidence to the Court of Criminal Appeal and, if necessary, to this Court. Maybe if it had been tendered, the Court of Criminal Appeal would have seen the point of justice that at least has appealed to Justice Gaudron and me so far.

MR DEAN: It seems Justice Ipp was prepared to follow that, although in the court below, your Honour, the - - -

KIRBY J: Often, you know, at the sentencing stage, sentencing facts, it is the most undeveloped area of the criminal law, and yet it is often absolutely crucial. I am not criticising anybody, but that is a common fact.

MR DEAN: Well, I am conscious of the Court having a very full list and I will not, therefore, press the point. If the Court is of the view that this is not an appropriate vehicle to test the question, then I will not pursue the matter.

McHUGH J: Yes.

KIRBY J: Well, you have pursued it to the end of the utility of the point.

MR DEAN: If your Honour pleases.

McHUGH J: Thank you, Mr Dean. The Court need not hear you, Mr Pallaras.

In this matter, the applicant seeks to raise the issue whether the parity principle of sentencing applies where persons involved in an offence are dealt with in another jurisdiction for associated or similar offences. The applicant was sentenced in Western Australia, the other persons in Victoria. However, the case is not a satisfactory vehicle to determine the issue. Although the evidence suggests that the persons sentenced in the other jurisdiction were suspected of being involved in the offence of which the applicant was convicted, the evidence does not appear to establish, even on the probabilities, that they were involved in a relevant way so as to give rise to the justifiable sense of grievance referred to by this Court in Reg v Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610. Special leave is refused.

Call the next matter.

AT 10.53 AM THE MATTER WAS CONCLUDED