Finnie v The Queen [2003] HCATrans 401 (3 October 2003)

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Finnie v The Queen [2003] HCATrans 401 (3 October 2003)

Last Updated: 17 October 2003

[2003] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S16 of 2003

B e t w e e n -

SYDNEY THOMAS FINNIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 11.53 AM

Copyright in the High Court of Australia

MR R.A. BONNICI: Your Honours, I appear with my learned colleague, MS S.M. KLUSS, for the applicant. (instructed by S. Moran & Co)

MR D.C. FREARSON: I appear for the respondent, if the Court pleases. (instructed by the Solicitor for Public Prosecutions (NSW))

McHUGH J: Yes, Mr Bonnici.

MR BONNICI: Thank you, your Honour. Your Honour, the applicant in this case contends that the Court of Criminal Appeal, in allowing the Crown appeal and in re-sentencing in the fashion that it actually did, effectively erred in much the same way that the determination was made that the sentencing judge had erred.

By this, I mean that the fundamental discretion which this particular sentencing judge had in this particular case over a two year period was such that his assessment and his discretion, particularly to the individual subjective factors, which saw him effectively say that a three-year sentence was warranted and a period reducing that sentence for many of the varying subjective factors like the assistance, which was discussed in the closed court, the time that he had spent in maximum security, his ailing health, his age, were of such a kind, your Honours, that they allowed his assessment of those factors to effectively allow him to impose the sentence that he did.

The Court of Criminal Appeal effectively, in allowing the Crown appeal, basically said that that discretion was so wrongly misapplied that it warranted increasing the sentence, because too much weight was given, or, effectively, not enough weight was given to the objective gravity and seriousness of the offences. But, your Honours, when we look at what his Honour Mr Justice Dunford, who gave the sentence and the remarks on sentence in the Court of Criminal Appeal, and what his Honour Judge Coorey say, they both recognise and they both state the seriousness of the offences. They both state the impact on the victims. They both state the fact that this was for different offences.

The part, I think, where there is a slight diversion is in relation to the total amount, in that when your Honours look at the Form 1 matters, they were enabling-type offences, in that the total amount in the figure – and even Mr Justice Dunford agreed to this – is not in issue, but it is the criminality of the matter. To have gone into the nuts and bolts of how much money was owing or lost in the compensating was not done because it would have prolonged even further what already was too long a sentencing process. So the sentencing judge looked at all those factors.

McHUGH J: Is not your problem that the sentencing judge made mistakes which vitiated his decision and enabled the Court of Criminal Appeal to exercise its own discretion?

MR BONNICI: It is the nature of the mistake, I think, that is very important here and calls upon this Court to seriously look, your Honours, at the principles that must apply to Crown appeals, particularly if this case reflects some of those errors which we have called “technical” errors. The section 12 suspended sentence, for example, starting with that. Even his Honour Mr Justice Howie, if your Honours go to page 46 of the book - and these are all issues which give this Court, in my respectful submission, the opportunity for a grant of leave to actually maybe streamline and impose some sort of, for want of a better word, “guideline” on what is happening with Crown appeals.

For example, we have Pearce’s Case, which states that you have to have discrete sentencing for each offence and then come to a totality, a procedural way of doing things. No doubt, in a way, this was infringed, because even the learned Crown Prosecutor in the case decided that the way his Honour was attempting to do it was not really that wrong but effectively it ended up being in error because it did not follow the strict procedural aspects of Pearce on discrete sentencing. However, Mr Justice Howie, where he says at page 46, if one looks at section 12(2) in relation to suspended sentences, why cannot it be that a person can be given a two-year suspended sentence and then, for the same set of global offences for which an order as to the applicant has been made, be given a short sentence?

These are issues which have been made ambiguous. Sure, Edigarov’s Case states that it has to be interpreted that any other sentence which is imposed in imprisonment therefore precludes a suspended sentence. But is that right? It does not make sense that, in one sense, we have Pearce’s Case allowing discrete sentences and, in another case, we have a suspended sentence, which in this case ran six months longer than the actual term of imprisonment. We have the Court of Criminal Appeal, through one decision, saying that cannot be right. We have the ambiguity in section 12(2) and we have even Mr Justice Howie expressing what is a very valid opinion.

That happened in this case and effectively it is one aspect which needs to be looked at and it was an error if you accept Edigarov. It is not an error if you accept that his Honour’s intention was to give him the three years, take into account the previous custody and then allow an extra six months of a suspended sentence, which carries more force than a bond.

Your Honours, these are issues which are there, and they are happening and occurring. This is a chance for this Court to intervene on what your Honour said is another technical error. You come to the backdating aspect, which, in my respectful submission, was the only legitimate Crown aspect of the appeal, because in all the other aspects the learned Crown itself either erred or unintentionally misled his Honour, too, because they are difficult issues after the Sentencing Act.

The backdating in relation to this matter was critical. The backdating said that - sections 47(3) and 24 said you must take into account the aspects of custody for this matter. Now, it does not say “exclusively”. SAE’s Case, through his Honour Mr Justice Gleeson, of course, agrees that exclusiveness should apply unless, I suppose, there are circumstances which warrant otherwise.

His Honour, the sentencing judge, realised that, your Honours, and in fact as you can see in his judgment there is discussion about that aspect, about the back sentencing, but the Act itself does not use the word “exclusive” and SAE’s Case does not eliminate it. Why? Because here the nine months that he received for breaching the periodic detention was through the Parole Board breach. He did not make an application to the Parole Board and it is judicial notice of the fact that had he have, his sentence may or may not have been reduced, but in fact he was refused bail for this very matter, which effectively meant, on that assessment, his Honour was entitled as a matter of discretion to take it into account. That is another aspect that has been deemed an error.

But if you accept the mathematics, your Honours, as to that ten month period, his Honour gave him three years, the Court of Criminal Appeal gave him 52 months. The Court of Criminal Appeal then discounted by 18 months to give him 34 months and his Honour discounted by 50 per cent to give him 18 months, but effectively in resentencing this man who had been out in the community for over 12 months, rehabilitated, and effectively, contrary to a lot of the decisions as to the effect on him, his family and all the subjective factors, was resentenced in a way which effectively was far more than the 8 months that the Crown was quibbling about, your Honours.

Here, of course, the Court of Criminal Appeal did not say that his Honour did not look at any of these matters, did not say that he was not entitled or came to wrong factual conclusions. They imposed their assessment by saying that the gravity was such that effectively the other aspects of the subjective factors did not take place. To show your Honours where the Court of Criminal Appeal totally failed on that, I go to page 35 of the book at paragraph 32, and effectively that is really that aspect which talks about:

His Honour, in sentencing the respondent, noted that there was evidence that he suffered heart and blood pressure problems and that whilst in gaol . . . breathlessness –

et cetera. Go the part at line 32:

The evidence available at the sentencing hearing indicated that the respondent was not presently suffering from prostate cancer, although there had been some suggestion to that effect.

If you compare that, your Honours, to page 12 of his Honour Judge Coorey, there was a lot more than just his idea that he had prostate cancer. There were surgical problems, there was pain, there was poor health, there was maximum security, and the effect that this man spent 21 months in custody.

What the Court of Criminal Appeal has effectively done, in my respectful submission, is decided that mathematical formulas can effectively dictate to substitute for the individuality and discretion of the assessment of matters here which his Honour had before him. Of course, the most difficult of those aspects, your Honours, was the assistance, and I think your Honours have read and realised what that was about. If you go to the white book which has been filed here and go right to the last page, which is the fourth last page of that white book, page 28 of 25/07/02, this talks about the assistance that was given and I do not need to take your Honours to that.

Here we have come to a situation where inadvertently the Crown Prosecutor has opened that aspect in open court. Put yourself in the position of the sentencing judge, which no one else could do, and effectively from that three-year sentence which was imposed – there is no quibbling with that, the range three to six years, one might think - his Honour then was in a situation where whatever discount he may have wanted to give it – and there is no doubting there was assistance and it was truthful – how it was used is irrelevant – but he has another aspect here which, in my respectful submission, was not given any credence at all, because his Honour was there, saw it, felt it, and effectively it meant that his hands were further tied.

So what was his intention? To put it within the realms of, yes, he did not want this man to spend any more time in gaol, but this man, from the community point of view, and the essence of what a Crown appeal is, had not just walked away, your Honours. He had spent 21 months in custody. A discretion of the judge that aiding - - -

McHUGH J: I thought the judge assessed his custody at 18 months and the Crown contended it was only 10 months.

MR BONNICI: No, he had gone 21 months, your Honour, but three of those months were solely referable for bail was refused to the periodic detention, because that happened in November to January. In March, he was refused bail on the “Glass Indictment”, because he did not apply for it because his periodic detention had been breached.

Where the mistake here was – and, in fairness, the Crown said, no, you should not take into account the 8 months, but Mr Paneras argued and his Honour used his discretion to say, well, it is not exclusive, it is not SAE’S Case, this is a parole matter and, accordingly, because it is a parole matter, it could have been applied for to have it maybe changed, and there may have been grounds, but he did not – which means, of course, the legislation, if it wanted exclusiveness for one, does not eliminate two. If this had been a sentence by another court, different matter.

The Court of Criminal Appeal, with the greatest respect, basically said, no, it was referable to something else, but the something else was a procedural determination which he decided not to challenge because he was in custody, bail refused on this. Again, his Honour’s discretion. All that, your Honours, has been overridden by the fact that at the end of the sentencing process, which took place over two years, three or four Crown Prosecutors, two or three defence lawyers, one man was in charge of it, your Honours. We talk about that new phrase, what is “intuitive synthesis of the discretion of the judge”.

McHUGH J: It is not new, it has been around for a long while.

MR BONNICI: Unfortunately, your Honour, it may well go out the window if this case is not properly revisited, because his Honour, in the Court of Criminal Appeal, spent pages and pages and pages rehashing what was second nature, of the gravity of the case. The sentencing judge did not miss any of those factors, but the errors that were committed, your Honours, were procedural errors. They did not detract from the individual assessment of the best person for the job, in fact the only person.

Apart from the backdating, the Crown was in the same difficulties in regard to restitution. They could not produce a document. Enabling offences does not mean 17 armed robberies with taking that amount of money. Citibank is defrauded for $71,000. That money is one set of moneys; it is not paid to Mr Glass. Two sets of offences, it looks like $140,000, but it is not; it is $70,000. Of course, it is wrong, of course, it is premeditated, of course, it was on bail. His Honour did not miss any of those factors, but, equally, the balancing act for the Sentencing Act and section 21 is not just for special circumstances.

In my respectful submission, that is what was done here in the resentencing process and in the evaluation of the discretion of the assessment of his Honour Judge Coorey. It is obvious from the paper itself, and in fact if you look at it, your Honour, that is the only part I have referred you to, where his Honour Mr Justice Dunford in fact wipes away any of the health problems by saying, well, it was not prostate cancer. But what about the effect of the maximum security? What about the effect of the three-year gaol sentence? Was that manifestly excessive?

This is not about whether he served the sentence or not. The procedural errors identified did not warrant an increase in the sentence to such an extent, your Honour, that the 8 months that really all the Crown wanted more – it appears that they did not make the mistake about it, it was arguable in this case that maybe he should not have, he had the discretion to assess because it is not exclusive, and the Parole Board may have found different if an appeal had been made – certainly does not lend itself to the fact to increase the sentence - - -

McHUGH J: It is not a question of increasing. It is a new and independent sentence once the sentence is set aside. Once the Court of Criminal Appeal comes to the conclusion the trial judge made errors, then the matter is at large. It is a matter for them to sentence and it is a matter for them to form their own opinion about. Arguably, the sentence they imposed is on the light side.

MR BONNICI: Arguably, yes, except for one thing, your Honours. Just because they set it aside does not make it correct on the basis, your Honour, that what has not been revisited by the Court of Criminal Appeal is the individual assessment of all those individual facts, and particularly the assistance, the outburst by the Crown Prosecutor, the time spent in maximum security. In my respectful submission, what the Court of Criminal Appeal did was go one step further than Crown appeals really allow and decide that the gravity was so much it did not matter what the subjective features were. If ever you have a case, your Honours, which lends itself to having a look at factors which mitigate against increasing a sentence, this is the one.

The problem here is, your Honours, that that next step has come in, which has taken away, if this case stands without challenge, that aspect of the individuality in the assessment in relation to how a person who is two years assessing it can be overridden by a Court of Criminal Appeal that has not seen the man, and yet all the evidence is there to suggest that these factors were not overlooked by the sentencing judge. He paid adherence to them. So in effect his whole assessment, in the best position of all, over two years, is on trial. The Crown, the defence lawyers, also mucked up, and why? Because the legislation is ambiguous, your Honours.

The fact is, all the CCA did was effectively say that he misapplied his discretion, but they did not really say why. What they said was, your Honours, we believe that because there were four offences, seventeen matters, this amount, end of story. That is what they have really said, but they failed to really address and accept the issue that it was one judge over two years, with so many Crown Prosecutors and defence lawyers, in a very difficult and complex factual matter, and effectively the Crown appeal only really should be legitimate on the one issue. That was the backdating, and that was also arguable on his Honour. All those aspects of the backdating, Pearce’s Case, and the suspended sentence, are errors which did not justify such an interference as to increase, but needed adjustment.

Just because the Court of Criminal Appeal ruled it aside on the gravity does not mean that it was correct. If your Honours have read the subjectives of this case in accordance with section 21A, not just for special circumstances – this is my point, your Honours – but for the sentencing aspect, then the Court of Criminal Appeal has fallen into the same error as they say Judge Coorey did, except for one factor: Judge Coorey is entitled to have that assessment in discretion because he was there. I cannot put it any stronger.

This is a case where your Honours can revisit that individuality of his assessment and hopefully straighten out the ambiguity of 12(2), the exclusiveness of backdating, and what may be called what is almost a discrete sentencing aspect of Pearce versus suspended sentence, and to what lengths the Crown appeal can actually interfere with the individuality of a sentencing process, particularly when the sentencing judge felt his hands were bound. Otherwise, assistance to authorities, as in this case, may as well go out the window, your Honours. Unless there is anything further?

McHUGH J: Thank you, Mr Bonnici. We need not hear you, Mr Frearson.

In this matter we are of the view that the case raises no special leave point and would have no prospects of success. There is no reason to doubt the correctness of the Court of Criminal Appeal’s judgment.

AT 12.14 PM THE MATTER WAS CONCLUDED