Ianculescu v The Queen B16/2000 [2000] HCATrans 711 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B16 of 2000

B e t w e e n -

COSTEA IANCULESCU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 11.41 AM

Copyright in the High Court of Australia

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

MR M.J. BYRNE, QC: May it please, your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIRBY J: Yes, thank you.

MR GLYNN: Your Honours, this is a matter which again requires leave as it is out of time. I understand the application for leave is not opposed by my learned friend, the extension of time also.

KIRBY J: Very well. You can proceed with your submissions and we will deal with it on the merits.

MR GLYNN: Thank you. This Court has long recognised that there is a public interest which is well served by encouraging and rewarding offenders to encourage the provision of information to authorities about criminal conduct by others. In Malvaso v The Queen [1989] HCA 58; 168 CLR 227 at page 239 in the judgment of Justices Deane and McHugh, they say, about halfway down the page:

It would be to close one's eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence. Justice Olsson clearly and properly gave great weight to that consideration. In the course of his remarks on sentence, he commented that "it is vital to ensure that it be apparent to those who do co-operate and assist [in giving relevant information to the authorities] will receive adequate recognition and consideration".

KIRBY J: Well, what more can this Court say on the matter?

MR GLYNN: In fact, if that were the only point, your Honour, then, no, the Court could not. However, there are complications that are raised by virtue of the provisions of 9A of the Penalties and Sentences Act 1992 of this State, which relates to the sentencing of people convicted of, what are described as, serious violent offences.

There are two categories of offenders created in respect of serious violent offenders: those sentenced to terms of 10 years imprisonment or more and those sentenced to terms between five and 10 years. Those sentenced to 10 years imprisonment are automatically, if the offence is a relevant offence, declared to be serious violent offenders; between five and 10 years, if the offence is a relevant offence, there is a discretion in the sentencing judge to make such a declaration. The offence of carrying on the business of trafficking is such a relevant offence. So that it has an impact on the sentencing of all offenders, including those who fit into the category of informants. The only useful way, as the Court points out, to encourage offenders to inform on other offenders is to be able to point to significant discounts on otherwise appropriate sentence.

It is not submitted that there should be a fixed tariff of discounting, but, as Justice Pincus says at page 27 of the record, at paragraph [6]:

There are risks associated with granting excessive allowance for co-operation and these are explained in Demir. The countervailing risk is that discounts which are thought too niggardly will encourage offenders, and their advisers, to think that the reward for co-operation is not enough to justify the risk which co-operation is said to entail. It does not appear to me that the 10 year sentence imposed on this offender would be treated, by those who may be interested in the question, as convincing evidence that co-operation is worthwhile. Here the co-operation was quite extensive and although it was ineffective it does not appear to me that one should assume, against the applicant, that this was because it lacked genuineness.

HAYNE J: But do you say, Mr Glynn, that the presence of 9A and the regime which it creates, affects the way in which a sentencer should determine the length of sentence to be imposed on the offender who has co-operated with the authorities?

MR GLYNN: My submission is, your Honour, that it should be taken into account by the sentencer, not that it will directly affect the sentence, because it is a provision which is, in fact, directed in the opposite way, namely to increasing the effect of term of sentences.

HAYNE J: Well, you say it should be taken into account by the sentencer in some way. In what way should the sentencer take account of the presence of 9A on the statute book?

MR GLYNN: The sentencer should, in my submission, sentence towards the bottom end of the appropriate range for the particular offender, rather than towards the higher end of the appropriate range, to give effect for the public interest to be served by an identifiable discount for informing.

HAYNE J: Can I tell you the difficulty I have with the proposition you are advancing, so that you can grapple with it directly.

MR GLYNN: Thank you, your Honours.

HAYNE J: A sentencer approaching a task of sentencing takes account of the myriad of factors that go to make up the determination. As you say, there may later be discerned a range of sentences within which the discretion could properly be exercised, but the sentencer fastens on the particular number, which represents that synthesis of all of the factors that have to be taken into account. Now once the sentencer has done that, it seems to me that the legislation then bites, that being the parliamentary choice, but, at the moment, I do not understand how you say it is that the task of the sentencer is affected or varied or altered by the presence of 9A on the books.

MR GLYNN: I am sorry. The way in which the sentencers would take it into account is, when dealing with an informant, if the automatic operation of 9A will apply at the high end of the range, but not at the lower end of the range, then the sentencer should sentence at the lower end of the range, so that proper effect may be given to the co-operation by way of the provision of information to the authorities. And that is the only way, in my submission, that a properly identifiable discount, which is said to be in the public interest, will be available.

HAYNE J: The difficulty I have, Mr Glynn, again, so that you can meet it head on, is that it seems to be an argument that flirts with, but does not, embrace the notion that sentences should take account of 9A and discount their sentences accordingly. Say, for example, with a drug offender, if the sentencer is thinking the range lies between say eight and 12 or nine and 11, for this sort of conduct, with this offender, who has done these things, it seems to me your submission amounts to saying, the sentencer therefore must hit on nine rather than 10 or 11 in the nine to 11 example I have just given. Is it as blunt as that?

MR GLYNN: I think it is, your Honour, yes. I was not intending to skirt, if I appeared to be.

HAYNE J: I thought that is what counsel was paid to do, Mr Glynn.

MR GLYNN: On special leave applications, I suspect one has to get to the point, your Honour. Where the range encompasses an appropriate sentence that falls below the automatic declaration of a serious violent offender, that the court should sentence in the lower end of the range for that purpose when dealing with someone such as an informant, and this case demonstrates the enormous effect that it can have on the outcome for the sentenced person, where this applicant must serve a minimum of eight years before he can be considered for any form of release.

Whereas, were he sentenced in the way in which Justice Pincus proposed, he would be eligible for release on parole after four years and there are some earlier forms of release which are less certain, such as home detention and work release, which may operate even before the four-year period is completed. But really the submission is that to give proper effect to the public interest in providing identifiable discounts, that the sentencer should, where 9A would affect the outcome in such a significant way, sentence at the lower end of the range, if that range falls appropriately below 10 years.

Now, if, on the other hand, the proper range was 10 to 12, then there is nothing that the sentencer can do, in my submission. In that case the sentencer's hands are bound by the legislation. But if the proper range encompasses a period, as it apparently did in this case in the view of the majority, then the appropriate way to satisfy the public interest in the discounted sentence is to sentence at the lower end of the range.

KIRBY J: I just do not see what this Court could add to the debate that has taken place in the Court of Appeal of Queensland, where normally the interaction of the general principle and particular State legislation would have to be worked out. I mean, how could we, in effect, re-sentence the applicant, except by reference to some large principle that either amounts to a qualification or elaboration of the principle in Malvaso or some error of principle in the interpretation of the Penalties and Sentences Act of Queensland?

MR GLYNN: My submission is that what your Honour would deal with would be that there has been a failure by the majority to appreciate the interrelationship between the provisions of section 9A and the public interest point - - -

KIRBY J: But it is specifically referred to on page 7 of Justice Cullinane - on page 31 of the application book, Justice Cullinane's reasons. His Honour specifically refers to it, so it is not as if it was overlooked.

MR GLYNN: But, in my submission, it was not accepted. That really is the submission, your Honour; that that point was not accepted by the majority. Their Honours say:

It may be accepted that the sentence falls towards the top of the range - - -

KIRBY J: Well, is that what this case comes down to, that this is a sentence at the top end of the range, by the sentencing judge; that the Court of Appeal addressed itself to Malvaso and to the Penalties and Sentences Act, including section 9A, considered it was at the top end of the range, but not such as to demonstrate an error of principle that would warrant its intervention. It is not really establishing a general principle that this Court could correct; it is simply saying, well, your client got a high sentence, but it is within the range.

MR GLYNN: Your Honour, except that it is a matter of some general application in that it will affect others in the same position.

KIRBY J: Point if you will to exactly where Justice Pincus puts his finger on the point of distinction which you say this Court could grasp and uphold as against that of the majority. See, I do not see a reference by his Honour to section 9A at all and, in fact, he refers to the general principle, which is Malvaso, but there is a reference to 9A at the bottom of page 27, but that is only in disposing of the appeal. His Honour does not refer to that in the reasons for his dissent.

MR GLYNN: His Honour does not really make the point that I seek to make before the Court here today, I have to concede.

HAYNE J: Just a point of information, if I may, Mr Glynn. Once a prisoner is eligible for parole, is parole automatic or is it a matter that is the subject of some executive discretion, whether the particular prisoner is admitted to parole once eligible?

MR GLYNN: It is a matter of discretion, your Honour; it is far from automatic.

HAYNE J: Thus, does it follow that sentencing judges should sentence on the basis that the offender concerned may have to serve every day and every hour of the head sentence imposed?

MR GLYNN: That has to be something that is taken into account, yes, your Honour.

HAYNE J: Yes.

MR GLYNN: Your Honours, unless there is something else, those are my submissions.

KIRBY J: Yes, thank you. Yes, Mr Byrne.

MR BYRNE: If the Court please.

KIRBY J: It is in the interest of the Crown and of investigative authorities that there be some reconciliation between the general principle in Malvaso and the application of section 9A of the Penalties and Sentences Act. Now is this a suitable case in which to sought that question out? It does not seem to have been flushed out by Justice Pincus in his reasons, but it is a question, at least potentially it seems to me, of some importance.

MR BYRNE: That, in my respectful submission, is a primary reason why this is not a suitable vehicle for special leave. Neither Mr Justice Pincus nor the majority in the Court of Appeal, for perhaps good reason, set out what the co-operation was, but, in the written outline of the Crown, at paragraph 2.4, which is uplifted from paragraph 28 of the judgment of Justice Cullinane, the only description of the assistance given by the applicant was:

whilst qualified and limited in its effect, was nonetheless not insignificant.

That being the case, it really fell to the Court of Appeal to make the assessment of what that assistance amounted to and what regard and what weight should be given to that assistance in fashioning the correct sentence. If that be a correct approach, then the current application is not one of principle, but one of quantum of sentence. The point sought now to be raised by my learned friends does not appear to be one which was agitated at all in the Court of Appeal and perhaps a reason for that is that it is accepted as settled law in Queensland that one cannot, if one determines as a sentencing officer, that the proper sentence is ten years or above, one should not attempt to defeat the purposes of the legislation by fashioning a sentence lower than that so as to avoid the statutory provisions of part 9A of the Penalties and Sentences Act.

Now, in this case, it could not be said, in my submission, that the majority did anything other than apply settled principles, including that in Malvaso v The Queen, to determining what the proper range of sentences was and determining which their task was.

KIRBY J: Yes, the Court does not need any further assistance, Mr Byrne.

MR BYRNE: Thank you, your Honours.

KIRBY J: Is there anything further that you wish to say, Mr Glynn?

MR GLYNN: No, your Honours, thank you.

KIRBY J: Thank you.

This application raises a question of the discount that should be given in sentencing an offender having regard to the assistance which the offender has given to investigative and prosecutorial authorities. The general principle applicable is established by this Court in Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227. The issue argued in the application is the impact on this principle of the Penalties and Sentences Act (Q), section 9A.

In the Court of Appeal of Queensland, Justice Pincus dissented. However, his dissent is not based on the principle which the applicant suggests constitutes the error of the Court of Appeal. In so far as there is a general question of principle, the present case is not a suitable vehicle to tender that question to this Court. The case turns on its own particular facts.

Therefore, whilst extending the time for the bringing of the application, the Court refuses special leave.

AT 12.02 PM THE MATTER WAS CONCLUDED