Kalache v The Queen S83/2000 [2000] HCATrans 713 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S83 of 2000

B e t w e e n -

LESLIE GEORGE KALACHE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT 11.08 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MR M. BUSCOMBE. (instructed by Walter Madden Jenkins)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent with MS. P. ADEY. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, I will address the proceeds forfeiture question and the co-operation question first, then the plea, then the totality question. Depending on how things proceed, I may, if the Court gives me leave, it may just taking a little longer than 20 minutes to complete what I have to say, but I will - - -

GLEESON CJ: Do not count on it, Mr Game.

MR GAME: Can I take the Court first, before I take the Court to the actual reasons of Justice Sully, to a couple of cases and an article? First, a case called Araya 63 A Crim R in which the question of forfeiture was considered but, in passing, in the judgment of Justice Carruthers at page 128, towards the bottom of the page, his Honour observed this. He said:

May I say, however, that the question of whether, and to what extent, a sentencing judge may take into account the confiscation of property under the relevant legislation raises nice and difficult issues, which should await adjudication by this Court in an appropriate case.

Now, your Honour the Chief Justice presided in that case and made some observations about the matter at page 130 and your Honour observed that whether or not it was a matter that could be relied upon in mitigation was a matter that had its own difficulties.

The case of Hoar 148 CLR 32 at 39, which is another case to which we have referred, where forfeiture was excluded because it was not caught by the conspiracy charged, this Court observed that:

Had forfeiture been authorized by the Act, the Chief Justice would have been entitled to take its impact on Hoar into account in assessing the penalty to be imposed on him, despite the provision under s. 48(2) that forfeiture "shall be in addition to and not part of a penalty".

We say, a fortiori, the same applies in respect of the - - -

McHUGH J: That was his property, was it not?

MR GAME: That boat was his boat, yes, your Honour. But in the case of Cheatley [1972] HCA 63; (1972) 127 CLR 291 at 305, if I could just give the Court a copy of that decision, in which it was not his boat, there is an observation in the judgment of Justice Menzies about deodand and in the judgment of Justice Mason at page 310:

Historically forfeiture has been regarded as "a mulct or fine - a punishment for an offence". But it is not an essential element in the legal concept of forfeiture as a penalty that its imposition is confined to forfeiture of goods owned by a convicted offender.

Then at the bottom of the page:

It may be said then that forfeiture is a penalty or consequence which attends, on some occasions at least, the illegal use or possession of goods.

Now, I wanted to take the Court, now again before taking them to the reasons of Justice Sully, to an article by Mr Arie Freiberg which is in 25 ANZJ Crim, first at page 45. Mr Frieberg, who is a noted criminologist, makes the observation in the first paragraph:

A confiscation order is the generic description for two discrete orders - a forfeiture order and a pecuniary penalty order.

Now they are all confiscation orders and that is one of the things in this case. Justice Sully, in our submission, made a mistake when he thought that there was something to be attached to the fact that certain of the cases dealt with pecuniary penalties. They were all confiscation orders. In fact, a proceeds assessment order under the legislation we are concerned with here is almost precisely the same as a pecuniary penalty. Then, at the bottom of that page:

The legislative and judicial justifications for forfeiture or confiscation are similar to those for conventional sentences: incapacitation, deterrence, retribution, community protection and the like, although the emphasis differs.

The history of forfeiture is examined in the following pages and we say history supports us in our submissions in this case. Then, the nature of confiscation is considered at page 50 and once again, Justice Sully thought there was some significance to the fact that the proceedings are civil. In our submission, that is a distinction of no importance in this case. They are civil in nature but they impose a penalty and it is a relevant matter in respect of sentence.

But there are two separate things here. One is the fact that the forfeiture is made and the other is the co-operation in the making of the order and they both have to be looked at separately and, in a sense, his Honour really only addressed the second, in our submission.

Then we come to the bottom of page 69 - just briefly, at 67 its relevance or otherwise in plea bargaining is addressed, then at the bottom of 69 it says:

It is obvious to me that the modern forfeiture and confiscation orders have a closer affinity to the law of sentencing than to the civil law of remedies. It has become increasingly apparent that the traditional, but ill-defined, division between civil and criminal is inadequate to explain why the effect of one set of measures should be ignored in allocating sanctions for the same misconduct, particularly when each of the measures inures for the benefit of public coffers, or the public good. The civil and criminal labels tell only the form of process employed without describing the character of the sanction inflicted. That a suit is labelled civil does not imply that it does not imposed punishment.

These sanctions that are in effect, if not in intent, unquestionably punitive -

Now, we say that by way of background. We would also point out that the legislation, and our friends refer to cases which say that restitution is a part of the criminal law and always has been in respect of sentencing and these orders are akin to restitution because there are specific provisions in the Criminal Assets Recovery Act, the effect of which is that this money that is forfeited does not go into general revenue. It goes into a specific fund that addresses itself, both to victims' compensation and to drug rehabilitation and drug education, and that is found at section 32 of the Act.

Now, in our submissions at pages 176 and 177, we refer to the substantial line of Australian cases which support the proposition which we put and, in particular, at footnote 4 on page 177. Now, it is against that background and against that line of authorities, in our submission, that Justice Sully has held, at application book 89, that confiscation and/or co-operation in confiscation is a matter that has no weight in sentencing and he concludes at the bottom of that page by saying:

complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle - - -

GLEESON CJ: Did Mr Justice Sully follow a New Zealand decision?

MR GAME: Yes. He followed a New Zealand decision and he did not follow a line of cases, which I have referred the Court to briefly, but there are other cases - Whitnall in the Federal Court, so there is a federal line of authority, a Victorian line of authority, authority in this Court. His Honour distinguished, for reasons which in our submission are irrelevant, the Victorian cases. If you look at page 83 paragraph 63 he says:

First, there is no equivalent of the Victorian section 5(3) in the New South Wales legislation.

Well, section 5(3) was about delaying - that is back at page 82 at the top of the page - that is about deferring sentence until the confiscation order has been determined, but that is an irrelevant point of distinction in respect of this particular piece of legislation because this particular piece of legislation is not conviction based but it is inexorably tied back to serious criminal activity, which inexorably ties it back to the commission of the offences in this particular case.

McHUGH J: But what use do you seek to make of it? In your argument, you assert that it entitled him to a reduction of sentence, but why should that be so? After all, these confiscation orders only recover property which are the proceeds of crime. Supposing an accused held up a number of name banks and the banks then brought restitution proceedings against the accused to recover their money. Now, that fact would not entitle the accused to a reduction in sentence, would it?

MR GAME: If they recovered the property then that would be a matter that was relevant to sentence.

McHUGH J: It might be relevant in one sense but you seem to assert that you are entitled to a reduction in sentence as a consequence of the fact that a confiscation order was made.

GLEESON CJ: I could understand how the fact that they never recovered the property might increase the sentence, but take a very simple case. Suppose a burglar breaks into somebody's house and steals some silver candlesticks and is then arrested on the way out the front gate. It does not go in mitigation of sentence that the owner got the silver candlesticks back, does it?

MR GAME: It is a relevant matter in sentence.

GLEESON CJ: It is a relevant matter, but you do not get a discount, do you, on that account?

MR GAME: You might get a discount on the fact that the property - you may or may not, but that is a slightly different situation to this situation in this case.

CALLINAN J: You rely upon the co-operative aspect of it, co-operation, do you not?

MR GAME: We do rely on that, but we do not just rely on the co-operative aspect.

CALLINAN J: No, but you say that there is a public interest element in that too because of the expense and trouble that are saved by the co-operation and the message that that might send that might induce people in the future to co-operate.

MR GAME: Yes, I am moving but yes, we do, and we also say that is picked up squarely by section 442B of the Crimes Act, which has now been moved into a different piece of legislation, that is to say, its assistance with:

law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence -

GLEESON CJ: But the circumstances of the present case are a little complex in that regard, are they not? I may have misunderstood them, and I do not claim to be on top of the detail of the confiscation aspect of the case, but did he not do a deal on the basis that he would pay back some assets that they were claiming from him on the basis that they did not pursue their claim against his lady friend.

MR GAME: Your Honour, that cannot be held against him.

GLEESON CJ: I am not holding it against him. I am just saying that that is part of the context in which you consider - he made a deal with them about settling the civil proceedings.

MR GAME: One calls it a deal. He came to a settlement but a very small amount of the property, which was her property, was excluded and her property had been picked up because of the wide scope of the provisions relating to property that may be caught with respect to interests held but it was accepted that some of her property was lawfully acquired and that is all that one can make of that, your Honour.

GLEESON CJ: All I was suggesting for your consideration was this. It really goes to the question of the suitability of this as a vehicle. Let us suppose that there is out there somewhere a question of principle which might be expressed as to whether Australian courts should follow the New Zealand approach. Even so, there is also a question of fact in the present case, is there not - I am looking at page 89 lines 35 and following?

Justice Sully seems to have taken a certain view of principle which may or may not be correct, but he also, additionally, relied upon what he regarded as aspects of the facts of the present case that he thought would have made it "farcical", to use his expression, to have given your client a discount.

MR GAME: That "farcical" is a quote from a decision of Justice King in a different statutory context and an entirely different factual situation.

GLEESON CJ: I was not suggesting that Chief Justice King's opinion was relevant.

MR GAME: But, your Honour, can I just say this? First of all, it was accepted that that property was lawfully obtained. That relates to her. That is at the bottom of page 9. There was an additional complication which was resolved which he, in a sense, threw away, which was that it was accepted that a substantial part of his property was lawfully acquired through betting and the police heard this in the interception. That is at the top of page 9.

This is really an ideal vehicle for this question and the question that your Honour asked me about an armed robber and so forth is not really the appropriate analogy, in my submission. In my submission, the appropriate analogy would be if this particular offender had spent all of the money that he had obtained by way of selling drugs and there was no money that could go back into the fund that would be spent on rehabilitation and the like, because sentencing is about righting wrongs and this, to some degree, rights the wrongs done.

GLEESON CJ: Now, what exactly do you say is the principle you would wish this Court to establish? You say it is a factor relevant to sentencing, but how is it relevant? In what way?

MR GAME: Your Honour, can I just say this? We are standing against a proposition that it is a factor irrelevant to sentence, including co-operation, so any proposition that engages the proposition that it has relevance to sentence is a proposition that we engage and is - - -

GLEESON CJ: Now, what is your preferred proposition?

MR GAME: My preferred proposition is that the fact that there has been forfeiture of substantial assets relating to the crime is a matter that must be given weight in sentencing and I put it in such a general sense because it depends upon the circumstances of the particular case.

CALLINAN J: Why do you not add co-operation to your proposition?

MR GAME: Sorry, and I add the co-operation, that the co-operation is a factor that must be taken into account in sentence and I rely on the - - -

CALLINAN J: Co-operative disgorging of property that might otherwise have to be confiscated by process under the legislation. Is not that your proposition?

MR GAME: Yes, your Honour.

CALLINAN J: I think you were understating it before.

MR GAME: Sorry. I am understating it, but the co-operation I would put as a separate proposition, but I put it as part of the same proposition. I bring it in that co-operation in disgorging the ill-gotten gains is a relevant matter in sentence. In fact, it is a matter that would have entitled him to considerable weight in sentence.

CALLINAN J: Like the case in which, perhaps, a person who is pleading guilty or has been convicted of some offences voluntarily discloses other offences, as in an extradition case we heard.

MR GAME: AB. It has some analogy to AB, which is a recent decision of this Court, but in addition in this case - and it is not just the co-operation in his own disgorgement of assets but it also relates to his de facto wife, and de facto wives can tie up both the Court and the Family Court - well, some wives can tie up the Family Court - for some months, if not years, with issues relating to proceeds of crime. But he also bought in the Burkes and persuaded them to co-operate in the same and that clearly, in our submission, was a matter that was relevant under section 442B of the Crimes Act, a matter which was given no consideration by Justice Sully.

McHUGH J: But if you look at what the purpose of this legislation was, it was to show criminals, and particularly criminal enterprises, that not only upon discovery would they be imprisoned for their crimes but they would be stripped of their ill-gotten gains and, in effect, you want courts to say, "You can go on a crime spree. You can make money out of it and then, if you hand it over, you ought to be given a reduction of sentence for it".

MR GAME: No, your Honour. Well, I do say that, but what I say is that it is a quite different situation if either all the money has gone or if the money is tied up in the Canary Islands in, ostensibly, legal businesses and cannot be caught by proceeds of crime legislation. It is completely different, and if this person comes forward in a co-operative manner and discloses what his property is, his interest in particular companies, which he did, and makes no contest about the matters relating to his de facto wife, brings her forward and brings forward the Burkes, he stands in a very different situation in relation to penalty and this is no novel proposition, your Honour. In fact, Justice Sully's decision stands against both history, authority, principle and the statutory principles.

GLEESON CJ: Yes, thank you, Mr Game.

MR GAME: But, your Honour, I have an entirely separate special leave point, which was what concerned me to start with which is, in our submission, the weight to be given to the plea as a matter that - - -

GLEESON CJ: And we have your written submissions on that. Yes, Mr Blackmore.

MR BLACKMORE: The proposition with respect to the applicant is maintained on the basis that there is an obligation placed upon the Court to take this into consideration. With respect, there is no contest with the respondent with that. What Justice Sully did here is he did take it into consideration. If you look at the New Zealand decision, the difference between that and, perhaps, the line of authority in Australia is a matter of degree. At page 89 line 15 the decision is set out. It says:

as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications.

It is not a blanket prohibition against taking it into account at all -

First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional effect on the offender.....Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate -

CALLINAN J: Mr Blackmore, the New Zealand case does not purport to deal with a situation in which there has been co-operation, does it?

MR BLACKMORE: The co-operation is just another factual element to be taken into consideration. I will come to that.

CALLINAN J: Yes, but the New Zealand case which his Honour has applied in paragraph 77 has nothing to say about a case, does it, in which there has been co-operation?

MR BLACKMORE: Yes, it does, with respect.

CALLINAN J: That is not the way I read it.

MR BLACKMORE: It talks about unusual circumstances. That could easily be one of the circumstances taken into consideration.

CALLINAN J: It is talking about confiscation orders.

MR BLACKMORE: My point, and perhaps I am not making myself clear, is that it is allowing for these circumstances and all of them, including the way in which the order was effected, to be taken into consideration. There were unusual circumstances about this particular forfeiture order but, with respect, none of them do much credit to the applicant. I know your Honour is interested in this aspect and I will come to it specifically.

CALLINAN J: What I am interested in is the public interest aspect of it.

MR BLACKMORE: Yes, I appreciate that.

CALLINAN J: The point that Mr Game makes, it seems to me, is possibly a valid one, that these days people can spirit money away very easily, including electronically. It may be very, very difficult to recover and co-operation may be an important element in that. Most criminals do not co-operate in relation to the restitution.

MR BLACKMORE: There are strong policy considerations involved in applying the law in that way. In essence, taken to its extreme, the wealthy criminal, the wealthy drug-dealing criminal who has made millions of dollars out of his drug empire, can negotiate with the authorities, as he does here, disgorge some of his assets and then negotiate with the authorities on another level altogether, not intended by the legislation as set out by Justice Sully in the intention of this legislation - it was supposed to be separate from the criminal proceedings - negotiate with the authorities and get a reduction in sentence as well. In effect, you allow the wealthy drug dealer to negotiate with the authorities and get a reduction in sentence, which another person is not entitled to.

CALLINAN J: The principle would remain good in respect of a person who stole $100.

MR BLACKMORE: Yes.

CALLINAN J: There is no reason why the principle should only apply to, or should or should not apply to the wealthy and successful criminal.

MR BLACKMORE: With respect, the offender who steals $100 in order to spend it on food and spends it does not get a chance to repay it. The wealthy drug dealer who has multitudes of assets is able to negotiate with the authorities and deliver up some of those assets, gets a double benefit. He does not have to disgorge all of his assets. He negotiates with the authorities for a pragmatic result. He gets a pragmatic result both on that and then he comes to court and says, "By the way, I'm entitled to another pragmatic result. Reduce my sentence because of my plea and my assistance to authorities".

With respect, I am not suggesting, your Honour, that there would not be cases where co-operation and the disgorgement of assets would, in effect, be in the same situation as restitution. It could be that a person confronted with a confiscation order may very freely and openly restore those matters which he has taken. A fraud case may be a good example. It may be contiguous with that circumstance, but that is not what happened here, with respect.

GLEESON CJ: There is a complicated fact - I am not sure where it leads, but I do not want to be misunderstood when I say that this is a victimless crime. I mean by that that there is no individual who has lost money. Suppose a solicitor misappropriates trust funds belonging to a client. I would not have thought that the fact that the solicitor ultimately pays back part of the money to the client would be a matter that you would treat as going in mitigation of sentence although, on the other hand, and this is a constant problem in this area, you would expect it to be taken into account against the solicitor if it were the fact that the client did not get the money back.

MR BLACKMORE: Yes.

GLEESON CJ: Now, this case is not precisely analogous, because it is not as though there are individuals out there who lost this money and they were having it refunded to them.

MR BLACKMORE: No. There is an element of protection of society, though, I suppose, where you could say society is put in the place of the victim. In the solicitor case you are able to identify a victim more readily, obviously, and say that victim has not been repaid. It is probably a long bow to suggest that we can look at disgorgement of drug-related assets.

GLEESON CJ: But employees, for example, who embezzle money from their employers often enter into quite complex arrangements about making restitution.

MR BLACKMORE: Yes. Generally speaking, if you restore, it will be taken into consideration as a matter of mitigation.

GLEESON CJ: It might depend on the circumstances.

MR BLACKMORE: That is exactly what I was going to say.

GLEESON CJ: If all that happens is that the employer's money has gone into the employee's bank account and is still there intact and the employee gets it back, I cannot imagine that going in mitigation of sentence.

MR BLACKMORE: No.

GLEESON CJ: But if, on the other hand, the employee has spent the money gambling on racehorses and then enters into some serious long-term commitment designed to work and earn money and pay it back to the employer, that is the sort of thing I can imagine going in mitigation.

MR BLACKMORE: And has been, your Honour. I have not got specific examples here but it certainly has been given consideration.

GLEESON CJ: Now where, under that pattern, as it were, do you fit a situation like this?

MR BLACKMORE: We would submit that it is certainly closer to the analogy with the employee who has been found to have the money in his account. Here, this was an overwhelming case of a drug dealer. We have set out in our written submissions the amounts of money that were involved, millions of dollars.

CALLINAN J: It said about $3 million.

MR BLACKMORE: Yes, millions.

CALLINAN J: But that was an estimate of street value or something, was it not?

MR BLACKMORE: Yes, and that was in a period of months.

CALLINAN J: Was there any evidence that he got 3 million?

MR BLACKMORE: No, not specifically, no.

CALLINAN J: He co-operated to provide what, about 1.4, or something. Is that right?

MR BLACKMORE: Yes, about that or in combination with the other people.

CALLINAN J: Was there any evidence that he had any other assets of any kind?

MR BLACKMORE: No. I think the acceptance from the Crime Commission was that this was the disgorgement of his assets. I obviously cannot go behind that letter. It was not put in challenge at the sentence proceedings.

CALLINAN J: That is what it said, in effect, was it?

MR BLACKMORE: That is what they have said.

CALLINAN J: Yes.

MR BLACKMORE: But, given the level of dealing, another aspect of his case, as it were, at plea was that he, in fact, was disgorging assets which he could claim to have legally obtained but the legal way of obtaining them was by receiving money from betting agencies. One could readily imagine why he was betting with the money that he was using to get the proceeds of the bets.

In addition to this, another factor which I just briefly want to refer to is the fact that it was specifically stated on his plea that he gave absolutely no assistance to the authorities in respect of giving up names of anybody else. So the only aspect of this assistance is this pragmatic, negotiated settlement in relation to what has all of the hallmarks of a civil action. Two years before the sentence, by the way, this settlement took place and it was not as if it was contiguous with the plea of guilty at all. The actual settlement is set out in the book, just at the beginning of the book. It is on page 26:

Entered: 23 December 1997

This plea - that is on the next day - was on 6 May 1999. With respect, it is not likely that this settlement, in practical terms, had anything to do with the plea of guilty.

Now, again, this, to use an analogy that was used earlier, somebody running away from the house with the candlesticks, if they are tackled in the street do they get some entitlement because the candlesticks have been returned? With respect, no. This was a very strong Crown case. He was virtually obliged to plead guilty or obliged to go to gaol for life because the nature of these offences was so serious and he committed them in circumstances which were themselves so serious, having been committed on parole, the number of offences.

Had he gone to trial he stood a very, very real chance of being sentenced to life imprisonment. He took a pragmatic approach to the plea and pleaded guilty. He received what was an exceptionally lenient sentence at first instance. The Crown appealed and he received what the Crown would say was an appropriate sentence having regard to the circumstances of double jeopardy on the Crown appeal.

GLEESON CJ: How does his sentence compare with the sentence that was imposed on Saxon?.

MR BLACKMORE: I do not want to mislead but I think Saxon received 24 and 18.

GLEESON CJ: What is the minimum here?

MR BLACKMORE: The minimum here is 22, in effect, so it is a slightly heavier sentence.

GLEESON CJ: My recollection is that in the case of Mr Saxon, they found gold bars and Kruger rand and a lot of currency in a garage.

MR BLACKMORE: Yes. There was said to be no co-operation there though. The situation was that the money was simply recovered from investigation as opposed to here where it can be said, at least, there was co-operation.

GLEESON CJ: Well, in Saxon, a large amount of the money was in gold bars.

MR BLACKMORE: Yes, it was. Subject to just saying something further about the assistance, I think I have said all I can say in relation to the relevance of this particular settlement to the plea. I simply emphasise again, for your Honour Justice Callinan, that, in our submission, it is not the circumstance that assistance will not be taken into consideration. With respect, the finding of Justice Sully at page 89 is a relevant finding. What he is effectively saying is there are no usual circumstances in this case. He has quoted the New Zealand authority and said, "But in this case".

CALLINAN J: I do not know. I mean, he has referred to Chief Justice King in South Australia. It seems to me that that case has absolutely nothing to do with this case. He has extracted a phrase from that. I think he has even overstated the effect of the New Zealand case in paragraph 77.

MR BLACKMORE: I do not want to debate that aspect of it. Your Honour, my submission is that, leaving aside, perhaps, the terms of it, it was a strongly worded statement, finding of fact, that in the present respondent, the consideration that he claims by reason of co-operation with the Crime Commission is something that is not going to be allowed to take into consideration in this case, in the facts of this case. It is not a statement that there will never be a situation where assistance of this nature could be taken into consideration and the New Zealand authority is not authority for that proposition. There may be, on close analysis, a marginal difference between the approach in Victorian cases and that which has now been applied in New South Wales. It is explicable by the nature of the legislation itself and the purposes behind the legislation, in our submission.

GLEESON CJ: Yes, Mr Game.

MR GAME: At page 101 in the application book, line 36, there is a quote from the Crown Prosecutor in the court below and she said:

Yes, and indeed he is entitled to a significant credit for his attitude but your Honour, on the point about the extent to which his agreement to surrender assets is of utilitarian value the reference was made in the Crime Commission letter to the undoubted success -

So, a submission is being put now that is directly to the contrary to the submission that was put below. If one looks at page 9 of the application book there is a reference to what the Crime Commission accepted as legitimate earnings from his betting activities and the fact, at line 25, that he:

admitted being a silent partner in the Town & Country Hotel at St Peters.

Now, your Honours, with respect to a solicitor paying back the money, the cases on sentence say that that is, regardless of the motive, a relevant matter in sentence and we have referred to one in tax cases such as Whitnall where payment back of the money that defrauded is a relevant matter in sentence but we have the additional factor here of co-operation.

McHUGH J: Yes, but is this case a suitable vehicle? I, myself, would not read Justice Sully's remarks as saying that in no circumstances whatever can you not take into account the question of handing over the proceeds as indicating co-operation and therefore, for the utilitarian purposes entitling that factor to mitigate the offence. But this is a case where Justice Sully thought he should have got life anyway and because it was a Crown appeal he cut it down. The totality principle was also applied in a sense. You have all these other offences. Why is this a suitable vehicle?

MR GAME: Your Honour, I ran out of time before, but he made another entirely separate mistake which is a very significant mistake in sentencing, which is that he thought that in certain circumstances the plea would have to yield to the seriousness of the crime.

GLEESON CJ: He was only pointing out, was he not, that if you murder five people and plead guilty you are going to go to gaol for life.

MR GAME: Yes, your Honour. His own reasoning demonstrates the falsity of that proposition in respect of this case because double jeopardy gets him back to 20 years and 20 per cent, or 80 per cent of a very long number - and I might say also he relied on Winchester, which has now been overturned by the Court of Criminal Appeal in Houlton and Thomson - if he got his 20 per cent discount, which is what Houlton would say that he would get, then 80 per cent of a very long number might be life or it might be less than life. If you do eight murders, it would still be life.

But his own reasoning brings him to a sentence of 20 years and then he adds two later and, we say, in breach of totality, but that itself demonstrates that 80 per cent of the very long number has been somewhat less than life and moreover, once you come to that point, the 20 per cent itself is a long number so you must get a reduction for the plea, so there is an absolutely critical question of principle relating to how you assess the plea that is lurking to be addressed in this case as well.

But, if I come back to the question of forfeiture, in our submission, this is an ideal vehicle for the assessment of that. You have identified forfeiture of the assets. The proposition that is put that, as it were, there was a lot more than 1.5 million is a proposition, in our submission, that is not supported by the evidence. Those were only assessments of street value and so forth. There is no suggestion there that he received $3 million and the proposition that is put does not accurately reflect the evidence in that regard.

It may be, ultimately, what we say is it will be rejected, but the submissions we put raise matters of fundamental importance in - - -

McHUGH J: Yes, but this Court is not a Court of Criminal Appeal and why should we get involved in sentencing matters unless there is some real miscarriage of justice involved. Even if one took this into account, it seems to me very debatable whether this particular applicant would get a day less.

MR GAME: Your Honour, in my submission, he would get less by reason of the disgorgement of the assets plus the co-operation but he would be bound to get less by virtue of his plea, applying Houlton and identifying the incorrect application of principle by his Honour. It is inexorable that he would receive a lesser sentence.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take in this mater.

AT 11.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.55 AM:

GLEESON CJ: The Court is of the view that this application for special leave to appeal should be refused. We do not consider that the case is a suitable vehicle for consideration of the issues sought to be raised on behalf of the applicant. We do not think that Justice Sully intended to say that co-operating in returning the proceeds of crime could not, as a matter of law, be taken into account in the sentencing process. If his Honour intended to say so, we would not agree with such a broad proposition. The Court is not persuaded that in the facts and circumstances of the present case there has been any miscarriage of justice.

We will adjourn for a short time to reconstitute.

AT 11.56 AM THE MATTER WAS CONCLUDED