Christensen v The Queen [2004] HCATrans 449 (12 November 2004)

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Christensen v The Queen [2004] HCATrans 449 (12 November 2004)

Last Updated: 24 November 2004

[2004] HCATrans 449

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B74 of 2003

B e t w e e n -

KIM SOBORG CHRISTENSEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 1.56 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS: If it pleases the Court, I appear on behalf of the applicant. (instructed by Compass Legal Solutions)

MRS L.J. CLARE: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Queensland))

HAYNE J: Yes, Mr Kimmins.

MR KIMMINS: The primary submission of the applicant is that as a result of the failure of the learned sentencing judge and the Court of Appeal to (1) identify what mitigating factors were considered appropriate and relevant so as to lead to a discount or a reduction in sentence and (2) identify the extent of such discount or reduction appropriate for each.

The applicant has a justifiable sense of grievance. He does not know whether the Court has properly taken into account considerations favourable to him and if so, what the appropriate benefit was allotted to each. This has even more relevance in the instant case as the applicant was sentenced to 10 years imprisonment. Due to the provisions of the Penalties and Sentences Act, 10 years is a magical figure at which a serious violent offender declaration becomes mandatory and not discretionary. If he had been sentenced to nine years and 11 months then it would have been in the discretion of the court to impose the serious violent offender declaration as it was a discretionary factor.

As it is, the serious violent offender declaration came in at 10 years he must mandatorily serve 80 per cent of his sentence. In relation to the proceedings before Justice Helman at first instance, his Honour - if I could take the Court to pages 10 and 11 of the record book - in short compass indicated at transcript 10, line 2 that he had pleaded guilty to serious offences. At line 18 he indicated:

I take into account also your pleas of guilty, and the facts about your pleas that have been put before me on your behalf.

Transcript 11 at about line 1 he indicated:

I accept that there was some intention on your part to assist the investigating police officers last year -

There was reference then to that:

as has been conceded on your behalf, there was never any suggestion that you should continue committing drug offences in the period in which you had evinced some willingness to assist the police officers.

At line 20 his Honour indicated that:

In your case, Kim, the range could be in my opinion as high as imprisonment for twelve years, but, taking into account the factors in your favour, I shall sentence you to imprisonment for ten years.

The points that we wish to make so far as his Honour’s sentencing remarks are these, that his Honour indicated that a sentence up to 12 years could be appropriate in the circumstances. He specifically made mention of the plea of guilty. There is some passing reference to evincing a willingness to assist authorities and then taking everything into account, a period of 10 years was selected as being appropriate. The total of the mitigating factors so far as the discount was concerned, if one conducts it on the basis of a mathematical calculation, was 16.66 per cent of the sentence, that is, if one is to assume that the sentence would have been 12 years apart from the plea of guilty and the co-operation and any other mitigating factors that the court found.

So far as pleas of guilty in Queensland are concerned, they are dealt with under section 13 of the Penalties and Sentences Act. Section 13(1)(a) refers to:

imposing a sentence on an offender who has pleaded guilty to an offence, a court –

(a) must take the guilty plea into account; and

(b) may reduce the sentence that it would have imposed had the offender not pleaded guilty.

It is of relevance at this stage to note that section 13 of the Penalties and Sentences Act is in extremely similar terms to section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That particular section is set out in the headnote of the case of Sharma which I intend to come to in due course.

So far as references in other sentencing legislation in other States around Australia, section 16A(2) of the Commonwealth Crimes Act talks in terms of a plea of guilty must be taken into account. So does section 5 of the Sentencing Act (Vic). Section 5 of the Sentencing Act (NT) provides that it shall be taken into account and under the South Australian legislation referred to in the authority of Place they talk in terms of should be taken into account.

HAYNE J: But the immediate point that you seek to point to is whether not only must it be taken into account but it must be quantified?

MR KIMMINS: Yes, your Honours. That leads on to the context of - - -

HAYNE J: That in turn would engage the further logically prior consideration of whether, if that were to be the appropriate form of reasoning, the Court of Appeal should have been of opinion that some other sentence than the sentence in fact imposed, should have been imposed on this applicant. That is, you have to get to the point, have you not, the Court of Appeal, I think putting it in its correct terms, not concluding that the sentence imposed should stand?

MR KIMMINS: I understand what your Honour has indicated. I suppose the way that that is achieved, we would suggest, is this, and probably if I could take the Court to the decision of Justice Williams as to whether in fact all relevant factors were taken into account. At transcript 19 of the record book at line 18 Justice Williams notes as follows:

The learned sentencing Judge considered that a sentence of the order of 12 years’ imprisonment was called for as a head sentence and discounted that because of the plea of guilty to a term of 10 years, which was in fact the sentence imposed.

That is the first of the references. There is no reference to any other mitigating factor causing the reduction in sentence from 12 years to 10 years. On transcript 20 of the record book at line 20 Justice Williams notes as follows:

The learned sentencing Judge considered that a sentence as high as 12 years could be imposed and that was discounted because of the plea of guilty to 10.

CALLINAN J: Mr Kimmins, could I ask you this?

MR KIMMINS: Yes, your Honour.

CALLINAN J: Were submissions made on the sentencing hearing by whoever was representing your client within the framework of the Penalties and Sentences Act? Was his Honour’s attention drawn to the provisions to which he should have regard and was he - - -

MR KIMMINS: Not specifically, your Honour. There was reference to the plea of guilty being taken into account - - -

CALLINAN J: Well, Mr Kimmins, I would just like to say that I have seen other sentencing matters in Queensland and there seems to be a tendency, by both sides I might say, to make no reference at all to the Act which is the fundamental law governing sentencing in Queensland but neither the Crown nor defence counsel ever seem to refer to it.

MR KIMMINS: No, as my memory serves me in relation to the - - -

CALLINAN J: I do not understand why that is so? And then somebody comes here and says some provision of the Act has not been applied and I do not make the remark simply in respect of defence counsel. Prosecutors do not seem to do it either so far as I can see.

MR KIMMINS: There was no specific reference as my memory serves me to any particular division of the Penalties and Sentences Act in any way, shape or form at first instance and there seems to be nothing specifically raised in the Court of Appeal with reference to sections of the Penalties and Sentences Act as well.

CALLINAN J: It all seems to proceed as if the Act does not exist.

MR KIMMINS: That could well be the conclusion one would draw upon reading the relevant transcripts, your Honour.

CALLINAN J: But I interrupted.

MR KIMMINS: Thank you, your Honour. The third portion of the - - -

HAYNE J: Well, you were at Justice Williams’ judgment at page 20 where his Honour took the view, so it seems, that the starting point, he says “could well have been” not 12 but possibly “13 or 14”.

MR KIMMINS: It could well have been.

HAYNE J: And it was on that basis that I invited attention to this root question of should some other sentence have been passed.

MR KIMMINS: What I was attempting to get to, your Honour, was this. It seems that there is no specific reference made in any way, shape or form in the Court of Appeal decision to the co-operation that the applicant had provided to the authorities. It was something - - -

HAYNE J: There is at least a forensic difficulty for you about that, is there not, that such co-operation as he gave was contemporaneous with his continuing his illegal activities while on bail, or do I misunderstand the facts?

MR KIMMINS: It was running concurrently at the time. There is reference in the affidavit from the police officer as to when he spoke to the applicant as to why he was doing it, he indicated that he was attempting to maintain favour with those he was providing information on.

HAYNE J: He is trying to play both ends against the middle. I understand that.

MR KIMMINS: I cannot challenge that. The fact remains the same, that it would seem according to the material that was placed before his Honour and that would have been before the Court of Appeal that the information included speaking to the police officer on three occasions, discussing five criminal syndicates, reference to the primary targets of each syndicate that had been identified by current intelligence to be actively involved in large scale manufacture and distribution of dangerous drugs. There was nothing in the material placed before the learned sentencing judge and the Court of Appeal to indicate the information that had been provided by the applicant was other than accurate and reliable.

So the fact remains the same that the applicant did provide the information to the police at a time that he was unaware that there were concurrent operations being undertaken by the authorities and it appears that there is no reference anywhere to the fact that the authorities informed him that they had investigations currently taking place. So he provided the information which was not suggested to be otherwise than accurate and reliable at a time not knowing what the police knew and it seems that that was taken into account by the authorities. That should have, we would suggest, led to a reduction in sentence. The question is to what extent that may have been.

A late authority was added to our list yesterday, a matter of Schofield [2003] NSWCCA 3; (2003) 138 A Crim R 19, an authority out of New South Wales. It is by way of example. A person had provided information to the authorities. He indicated that under no circumstances would he testify against any of those persons. At page 55 of the decision of Mr Justice Carruthers it was indicated that it was of informative value to the authorities only. A reduction of 30 per cent was originally given by the learned sentencing judge. Upon the DPP’s appeal, that was reduced to one of 16.66 per cent for the co-operation alone. That was considered in those circumstances to be a mild reduction having regard to the fact that there was not to be full and proper co-operation by testifying against these persons.

It is of interest to note that on that factor alone 16.66 per cent seems to be the total reduction given by the learned sentencing judge and the Court of Appeal in relation to this matter. I stop at this stage to indicate that that is the primary basis we say there was an error by the Court of Appeal. It seems that the plea of guilty was the factor that they thought turned a 12 year sentence to one of 10 years.

If one was then to take into account the assistance or the co-operation by the provision of the information that would, by itself, necessitate a further discounting. To observe what subsequent Courts of Appeal in Queensland have thought that the case of Christensen stands for - this was a matter which I had not forwarded to the Court but had provided to my learned friend - the decision of the Court of Appeal of 8 October 2004, the decision was of the court itself, Justices McPherson, White and Cullinane. It is R v P where at paragraph [12] they observe in relation to Christensen that the applicant:

was sentenced to 12 years reduced to 10 years for his plea of guilty.

So a subsequent Court of Appeal of this State came to the conclusion that the only reduction in sentence was because of the plea of guilty, not in relation to the further co-operation. Thus, we would suggest that that enlivens the discretion of this Court to go on to consider the further question that we have raised in the outline and that is the question of the two-tier sentencing approach. Primarily, so far as that is concerned, the - - -

HAYNE J: Those issues have recently been the subject of an argument on appeal in a matter in which the Court has presently reserved so the questions of two-tier sentencing have been recently explored in a matter of Markarian.

MR KIMMINS: I was unaware of that, your Honour.

HAYNE J: Yes.

MR KIMMINS: Well, the Court would be aware of obviously the difference in views expressed by various members of the present Court as well as the various approaches from the various States. We would submit that because of the dissension amongst the various members of the Court and also the various States that in itself was, obviously in the case that the Court has referred to and in this case, sufficient to raise a general question of importance for the consideration of sentencing in Australia. Having regard to the indication from the Court so far as this matter being discussed recently, does the Court wish me to go through any specific area so far as the dichotomy of opinions in relation to the area?

HAYNE J: Yes. We understand the - - -

MR KIMMINS: I do not know whether I can assist the Court any further.

HAYNE J: Yes, thank you, Mr Kimmins. I am right, Mr Kimmins, in understanding, am I not, that the application is out of time?

MR KIMMINS: Yes. I apologise, your Honour, I should have foreshadowed that.

HAYNE J: We are not persuaded that it is arguable that there has been any miscarriage of justice in this case. The application for special leave to appeal was made out of time. Because the substantive application would fail, the application for an extension of time is dismissed.

AT 2.15 PM THE MATTER WAS CONCLUDED