Caplikas v The Queen [2003] HCATrans 294 (14 August 2003)

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Caplikas v The Queen [2003] HCATrans 294 (14 August 2003)

Last Updated: 26 August 2003

[2003] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A310 of 2002

B e t w e e n -

MATTHEW JOHN CAPLIKAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 10.59 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR P.A. LONGSON, for the applicant. (instructed by C.B. McDonough & Co)

MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MR P.F. MUSCAT, for the respondent. (instructed by Director of Public Prosecutions (SA))

GLEESON CJ: Yes, Ms Shaw.

MS SHAW: If the Court pleases, the applicant submits that special leave should be granted in this case, firstly, in the interests of the administration of justice in this particular case because it is our submission there were errors of law in the approach of his Honour Justice Perry, with whom his Honour Justice Williams agreed, which have resulted in a substantial increase in the applicant’s sentence, in particular, upon a basis which was not raised as an issue by the Crown during the hearing of the appeal, nor by the court with the applicant during the hearing of the appeal.

GLEESON CJ: I thought that one of your criticisms of what happened was that this involved mere tinkering.

MS SHAW: Mere tinkering in relation to the interference with the discount for totality, not mere tinkering in relation to the interference with the discount for the plea of guilty. Secondly, your Honours, we submit that the application raises matters of general importance in relation to Crown appeals and the proper manner of sentencing. We submit the dissenting judgment of his Honour Justice Gray is a correct application of the principles governing Crown applications for leave to appeal and a correct application of sentencing principles.

We submit that the two specific errors of law are, firstly, in the re-sentencing process by his Honour Justice Perry. His reasons appear at page 30 of the application book. His Honour, at the bottom of page 29, proceeded by concluding that the learned sentencing judge had in essence adopted the sentencing task in accordance with correct principles and had made no error of fact or law in his approach to the sentencing task.

In South Australia it remains necessary for the Crown to obtain leave to appeal from the Full Court before the court has jurisdiction to entertain the appeal. His Honour approached that question, we say, without having regard to the strict procedures required for the grant of leave in that his Honour concluded that the provisional sentence of 34 years and nine months was not one that he would interfere with, even if he was considering afresh whether it was manifestly inadequate. Of course, that provisional sentence had been arrived at by application of the principles essentially of this Court in Pearce v The Queen.

His Honour then proceeded to re-sentence upon the basis that the deductions made had resulted in a sentence which his Honour considered was too low. Those two deductions were, firstly, for the plea of guilty, contrition and co-operation with the authorities, bearing in mind that the applicant had approached the Crown indicating his plea of guilty prior to the completion of investigations in the matter, which had the result that it was not necessary for forensic investigations to be undertaken and the matter could proceed very quickly on a plea of guilty in the Magistrates Court and committal for sentence.

His Honour, having proceeded by, we submit with respect, substituting his own view of what the deductions should be, firstly, for the plea of guilty, which appears in paragraph 39 on that page, that he discounted the provisional sentence by 25 per cent, whereas his Honour says the learned sentencing judge’s discount was 30 per cent – in fact, it was a third, which was higher than that – and concludes:

in the circumstances I am of the view that the discount I have indicated is appropriate.

Now, that substituted view of his Honour had the result that the sentence was increased by three years. His Honour also decided not to give credit for time spent in custody. Again, that was not an issue contended for by the Crown. That had the result that in essence the sentence was increased by three years, four months on those two bases.

The remaining deduction that his Honour made for totality involved a difference between his Honour’s deduction and the learned sentencing judge’s of one year. We say that is tinkering, that if a deduction for totality is a discretionary exercise of the learned sentencing judge’s – his discretion, then in the absence of error of fact or principle there was no basis to substitute a discount or a reduction of six years rather than seven years.

In that context, bearing in mind this was a Crown appeal and bearing in mind the support, as is apparent from the submissions of the Crown during sentencing before the submissions at the appeal, that the Crown considered that the third discount or third reduction was appropriate. That, we say, was a matter that the court clearly has not taken into account in considering whether this was a proper case for a grant of leave.

Your Honours, the exchange that occurred between the court and the DPP at the appeal hearing appears at page 42 of the application book. It is a matter to which his Honour Justice Gray had regard in deciding that this was not an appropriate case to interfere. The position of the Crown was that, at page 42, as it is set out in the footnote, that the discount or the deduction for the plea was warranted in this case and it was “an appropriate discount”.

The applicant’s submission is that if the court proposed to interfere with that discount, or that reduction, that it was necessary for the Court to at least draw that issue to counsel’s attention so that the applicant’s counsel could have made submissions and pointed the court to the evidence and the history of the matter that supported the learned judge’s deduction.

We say that, in accordance with the judgment of this Court in Pantorno v The Queen that the applicant has, in essence, been denied the opportunity to address a matter which resulted in his sentence being increased by three years and to that extent there is an injustice in the sentencing process.

GLEESON CJ: Ms Shaw, I notice that both at first instance and in the Court of Criminal Appeal the non-parole period was approximately half –precisely, I think, in one case, and approximately in the other – the head sentence.

MS SHAW: Yes.

GLEESON CJ: Is that the usual relationship in South Australia?

MS SHAW: Your Honours, in my submission, it is lower than the usual, however, it was the subject of specific submissions because - - -

GLEESON CJ: I am sorry, what do you mean by “lower than the usual”?

MS SHAW: For example, in drug cases, cases of Tio and Lee, which talk about the deterrent aspects of drug offending and the issue of deterrence is a predominant factor, it is often said that the non-parole period ought to be about two-thirds the head sentence. However, that was not an issue that was raised in this case. In fact, when the applicant’s counsel made specific submissions to the learned sentencing judge, the submission was that because of his youth and because of the material in the psychiatric report and other material put before the court that this 20-year-old would benefit from a longer period on parole than usual. That submission was accepted. Indeed, at first instance, the Crown supported the proposition that he would benefit from a longer period on parole.

GLEESON CJ: It seems to have been accepted in both courts.

MS SHAW: Yes, that that was the underlying rationale for the lower than usual non-parole period.

GLEESON CJ: But it is an unusual proportion between head sentence.

MS SHAW: Compared to the run of the mill case maybe, but this was a young man who, in essence, it was common ground, had no prior history of sexual or violent offences, who had showed a considerable amount of prospect of rehabilitation by reason of the psychiatric report and the observations during that psychiatric report, that his Honour, at first instance, accepted that submission. It was not a matter that was reviewed by the Court of Appeal to suggest it was erroneous and, indeed, the proportion adopted by the majority is in keeping, to some extent, with that proportion.

So, your Honours, we say that there is a second error of principle in that the court has interfered with the sentence imposed by the learned sentencing judge at first instance without identifying any error of fact or principle, and the difference between what we say is the correct approach and the incorrect approach adopted by the majority of the court, we submit, is demonstrated by the issues that are raised in the judgment of his Honour Justice Gray and where he differs from the views of the majority.

There are, in essence, three areas. Firstly, his Honour Justice Gray made it plain that there was no established standard for offending arising out of the judgments of this Court in Place. The judgment of his Honour Justice Perry in the majority at page 30 proceeds upon the basis, at line 10, that the approach to sentencing is to consider that this offence of:

armed robbery alone should have attracted a sentence towards the upper end of the established sentencing standard of 6 to 8 years.

His Honour Justice Gray, in the other hand, takes the view that there is no suggested sentencing standard that arises out of the Full Court of South Australia’s judgment in Place. He says this in the application book at page 47, line 6 and line 25, that in Place the Court did not settle or did not establish a sentencing tariff.

The second area where there is a dispute is that the majority hold that the instinctive synthesis approach to sentencing has been rejected by the Court in Place. The statements by his Honour Justice Perry to that effect are at the application book at page 22, line 15 under the heading “Instinctive Synthesis”:

Authority binding on this Court does not support the use of this approach to sentencing in this State.

Further, he says at page 25 of the application book, line 4:

In the joint judgment of Place, the court goes on to reject the instinctive synthesis approach, and approved the ongoing applicability in South Australia of the two-stage approach –

His Honour Justice Gray, on the other hand, held at page 46 at line 16 that in Place the court’s consideration was confined to the question of the practice of identifying the discount and did not consider the wider approach.

Thirdly, there was a difference in their judgments because whereas as his Honour Gray recognised and applied, we say, the Everett principles and considered the approach of the learned sentencing judge and, in particular, referred to the judgment of his Honour Justice McHugh in Everett that the Court of Appeal should not interfere and grant leave where there is not an issue of sentencing standards.

His Honour Justice Gray pointed out that here because there was no error in the provisional sentence then there was no place for the grant of leave to assist in sentencing standards. We say it is an error of approach in relation to the conduct of Crown appeals when the court’s role is to interfere only if there is a need in relation to statements of principle or if the sentence shocks the public conscience or if there is a need to set standards. So, here, where his Honour Justice Perry agreed that the provisional sentence was not manifestly inadequate, then, essentially, we say that his Honour has merely substituted his view of the discounts.

Your Honours, the reason that this matter has wider importance is because the effect of the judgment of the majority is that a sentencing judge in South Australia, in particular, will be at least confused about how to go about his task and, secondly, that it provides no guidance in relation to how one approaches the reduction for a guilty plea if indeed there is no reasons identified in relation to why the substituted reduction was made.

Most importantly, we say that not only has this applicant had his sentence increased by four years and four months, a 20-year-old, on a basis which involves errors of law, but the effect of the judgment is that in South Australia the majority have purported to reject the instinctive synthesis approach of sentencing. That is a matter which is a matter of debate in the Courts of Appeal in Western Australia and New South Wales and has been discussed now in a number of High Court judgments. More recently, his Honour Justice Kirby in Cameron and in Wong indicating that there was a need for this issue to be resolved.

We say that the application of the principles of Everett and Malvaso and, in particular, the failure to recognise the stance of the Crown in relation to the consideration of leave and the resulting injustice to the applicant in the particular case warrant the grant of special leave. If the Court pleases.

GLEESON CJ: We do not need to hear you, Mr Rofe.

Although there was a good deal of discussion in the reasons of the members of the Court of Criminal Appeal about matters such as two-stage sentencing or synthesis sentencing, the ultimate outcome of the appeal does not appear to us have turned upon that question, or for that matter upon the principles enunciated in the case of Everett.

A majority of the Court of Criminal Appeal formed the view that the total sentence imposed by the sentencing judge was manifestly inadequate. That view was well open, having regard especially to the objective criminality involved in the conduct of the offender. The case is not a suitable vehicle for the consideration or reconsideration of sentencing principles sought by the applicant and we are not persuaded that there has been any miscarriage of justice. The application is refused.

AT 11.18 AM THE MATTER WAS CONCLUDED