Smith v The Queen [2004] HCATrans 129 (30 April 2004)

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Smith v The Queen [2004] HCATrans 129 (30 April 2004)

Last Updated: 10 May 2004

[2004] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A263 of 2003

B e t w e e n -

ANTHONY JOHN SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 10.28 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: If the Court pleases, I appear with my learned friend, MR A.P. GAITE, for the applicant. (instructed by Aboriginal Legal Rights Movement Inc)

MR P.F. MUSCAT: May it please the Court, I appear with MS L.J. CHAPMAN for the respondent. (instructed by Director of Public Prosecutions (South Australia))

MR TILMOUTH: Your Honours, there is also an extension of time sought in this case and I am told that is not opposed, if the Court pleases.

GLEESON CJ: Yes, you have that extension.

MR TILMOUTH: If the Court pleases, your Honours would know from the application book that this case raises, in our submission, the very important question in the law of sentencing of the proper approach to be taken to sentencing, often described as the two-tiered starting point or staged approach on the one hand - - -

GLEESON CJ: Just a minute. Before we get into that wider area, part of the reasoning complained of appears at the bottom of page 26 and the top of page 27 of the application book, does it not?

MR TILMOUTH: Precisely, your Honour.

GLEESON CJ: And all that the sentencing judge did in this case, by way of what is sometimes called a staged approach to sentencing, was to specify the discount that was given for the plea of guilty and youth.

MR TILMOUTH: And youth. Of course, on the instinctive synthesis approach, the question of youth would have been a separate and earlier matter to consider.

GLEESON CJ: These are wonderful labels, Mr Tilmouth, and no doubt they are very convenient for composing indexes to books, but what we have to look at is what was actually done by way of reasoning in this particular case. What is unorthodox or what is unjust about what was done on the bottom of page 26 and the top of page 27?

MR TILMOUTH: What is unorthodox – putting aside the question for the moment of the plea of guilty, which has a different component in South Australia due to the decision of the Full Court in Place – what is done, in my submission, is unquestionably a staged approach. The way in which the sentence is constructed is very symptomatic of what some judges have criticised in this Court as being quite contrary to ordinary principles of sentencing.

What her Honour has done, in sum, if the Court pleases, is she has used a starting point approach, which is 49 years, which in itself, in our submission, demonstrates the unreality of the situation. She has then, in effect, said, “I would have started with 15, 10 and 24 years respectively for each of the three sets of offences, but then I discount them or I reduce them” to the figures she arrived at at those pages on the basis of plea of guilty and youth. In our submission, that is undeniably and only a process of sentencing which is a staged approach or two-tiered or multi-tiered or starting point or any other of those phrases that have been used in the cases. It cannot be denied, in our submission.

The other problem, generally, is that although in South Australia, because of the decision of five judges in the case of Place, it is said that judges should specify, for reasons of openness of justice and to encourage feasibility and so on, what the actual discount for the plea of guilty is, that decision has dominated decisions of sentencing judges in handing down sentences such that they, in effect, use the staged process despite the uncertainty which remains outstanding in this Court as to which of the two stages is appropriate.

The other point I would like to make, if I may, is this, if the Court pleases. In the Full Court, in the Court of Criminal Appeal, the majority said that they did not agree with the submission that there was an improper merger of the discount for the plea of guilty and the youth, which was one of our grounds of appeal, but each of the judges of the majority, your Honours, said that the sentence is one that they would not have imposed themselves. Justice Debelle said that at page 39, line 1. Of course, he could not interfere if he did not identify error, but, in our submission, there is error. Justice Lander noted at page 50, if the Court pleases, that it was “a heavy sentence” – that is paragraph 81 – and at paragraph 82 that:

The sentence imposed was at the higher end of the scale for an offender this young. I might have imposed a lesser sentence –

Her Honour, in her sentencing remarks at page 27, which your Honour the Chief Justice referred me to earlier, also acknowledged that the 18 years was “a relatively high proportion of the head sentence”, the non-parole period of 18 years.

The point why I raise those matters, of course, is to show that this vehicle is a suitable vehicle, because had there otherwise been demonstrable error, in my submission, it seems tolerably clear that the court would have interfered to reduce, and there is, of course, the dissenting judgment of Justice Gray, where his Honour said – in our submission, correctly – that there was error, at page 60 of the application book, paragraph 122. His Honour identified the error at line 3:

By making a combined reduction for age and a guilty plea it is not possible for an appellate court to discern what allowance was made on account of the plea.

Then his Honour referred to a submission that I made in the Court of Criminal Appeal and concluded at 124:

In the present case it is apparent that a mathematical reduction on account of the appellant’s youth was made. This conflicts with the instinctive synthesis approach to sentencing.

GLEESON CJ: How old was your client at the time of the - - -

GUMMOW J: Torrensville offences.

MR TILMOUTH: 20, I think, your Honour, and 21, I think, at the time of sentencing.

GLEESON CJ: He had actually committed an armed robbery at the age of 15, had he not?

MR TILMOUTH: I think two, your Honour, which were dealt with in the Children’s Court. There is no doubt about those matters.

GLEESON CJ: He was precocious.

MR TILMOUTH: Your Honour, as I have said already, the Court of Criminal Appeal, in my submission, if it had have identified error, it would appear it would have been prepared to reduce the sentence. Those remarks that I have read are remarks of experienced judges, knowing the tariffs and sentencing standards in South Australia, and I submit that they show that this is a suitable vehicle.

Your Honour, the conclusion of Justice Gray at page 62, paragraph 128, was again that there was this merger of:

the appellant’s youth with his pleas of guilty to effect a mathematical reduction –

and his Honour carried that forward at page 64 and would have reduced the head sentence by five years and the non-parole period from 18 years to 12½ years.

Your Honours, if I may, there is one final matter. This Court has, of course, granted leave, on the sentencing approach at least, in the case of Markarian in December of last year, which, as I understand at the moment, has not been listed – it is a Sydney case. It raises quite directly the division of opinion expressed in this Court in AB v The Queen and in Wong.

GLEESON CJ: Yes, but in a context in Markarian in which the sentencing judge, as it were, adopted and carried right through in a rather detailed fashion this so-called staged approach, was it not?

MR TILMOUTH: Quite so. It was actually the Court of Criminal Appeal on a Crown appeal that did that.

GLEESON CJ: Yes, but, subject to your argument about the merger of plea of guilty and youth, all we are dealing with here is the South Australian practice of specifying the discount that has been allowed for a plea of guilty.

MR TILMOUTH: Quite so, but, if the Court pleases, it goes back to pages 26 and 27, which show a staged approach going beyond the confines of the mere plea of guilty – that was the error that we principally submitted occurred in the court below – and undeniably, however you look at it, show a staged approach doing more than just taking account of solely the plea of guilty.

Your Honour, the problem for South Australia is that – I have mentioned the case of Place (2002) 81SASR 595 a number of times. Place is case No 5 in the respondent’s list of authorities and I will take your Honours to that just for a moment, if I may, to demonstrate the problem. May I take your Honours to pages 424 and 425, or paragraph 80 of the judgment. Their Honours deal with this quantification reduction right at the bottom of 424:

The “mathematical” two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty.

GLEESON CJ: That was the point I was just seeking to make to you.

MR TILMOUTH: Yes, your Honour:

The views expressed in the joint judgment concerning the two-stage approach, and in particular the example given with respect to
identifying a reduction for a plea of guilty, were not the views of a majority.

The problem for South Australia, if the Court pleases, is that if Markarian takes the instinctive synthesis line, South Australian sentencing judges, and, indeed, the Court of Criminal Appeal, are bound by this decision in Place, which was a five judge coram, unless it is overruled by this Court. So Markarian has the capacity to resolve the question in relation to New South Wales and perhaps, arguably, for the rest of Australia, but not for South Australia, unless, of course, the Court approves in Markarian a staged approach. That, in my submission, is an additional reason why this is a suitable vehicle for special leave because there is this particular problem in South Australia relating to the decision in Place. May it please the Court.

GLEESON CJ: Thank you, Mr Tilmouth. We do not need to hear you, Mr Muscat.

The Court is of the view that this case is not a suitable vehicle to consider the issues of principle that the applicant seeks to agitate and, in addition, that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is refused.

We are going to adjourn for a short time to reconstitute.

AT 10.40 AM THE MATTER WAS CONCLUDED