Niketic v The Queen [2004] HCATrans 66 (12 March 2004)

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Niketic v The Queen [2004] HCATrans 66 (12 March 2004)

Last Updated: 22 March 2004

[2004] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S396 of 2003

B e t w e e n -

ALEXANDER NIKETIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2004, AT 11.15 AM

Copyright in the High Court of Australia

MR A. NIKETIC appeared in person.

MS M.M. CINQUE: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J: Yes, Mr Niketic.

MR NIKETIC: Your Honour, today, I think the important question is, should federal offenders be deprived of the guideline judgment - - -

GUMMOW J: Well, there has been a delay in the application for special leave, has there not? It is late being filed.

MR NIKETIC: Yes.

GUMMOW J: Is there opposition to an extension of time?

MS CINQUE: No, your Honour.

GUMMOW J: Very well, you have that extension, but proceed with the merits of the application.

MR NIKETIC: Should federal offenders be deprived of the applications from the guideline judgment of Thomson and Houlton, where the early guilty plea was entered at the earliest possible opportunity?

GUMMOW J: Yes. Is there anything else you wish to add to what you have just said?

MR NIKETIC: That is about all.

GUMMOW J: Thank you. Sit down if you would. Yes, what do you say, Ms Cinque?

MS CINQUE: Your Honour, the application is opposed. There is no general issue of law of public importance and no miscarriage in the particular instance. The question of the application of guideline judgments issued with respect to New South Wales has been dealt with by this Court in the judgment of Wong and Leung v The Queen.

GUMMOW J: Yes, that is right.

MS CINQUE: So that, in the respondent’s submission, the application is misconceived, firstly, insofar as the applicant submits that the guideline set down in Thomson and Houlton by the New South Wales Court of
Criminal Appeal should have application to Commonwealth offenders. In any event, your Honours, even if - - -

CALLINAN J: Well, a guideline is only a guideline, anyway, even if it is something that one has to have regard to.

MS CINQUE: Indeed, your Honour, and that was dealt with by the court in Thomson and Houlton itself.

CALLINAN J: The sentencing judge seems to have taken into account all relevant factors at page 8 of the judgment, I think, the sentencing remarks.

MS CINQUE: Yes, your Honour. He certainly took into account the timing of the plea.

CALLINAN J: And allowed a 15 per cent remission, I think.

MS CINQUE: Yes.

CALLINAN J: You say that that was well within the sentencing discretion, is that right?

MS CINQUE: Certainly, your Honour. On the material before his Honour, even if he had been applying the guideline judgment, there was no - - -

GUMMOW J: You rely on what you say at page 43 of the application book, 3.2 and 3.3, in particular?

MS CINQUE: Yes, your Honours.

GUMMOW J: Thank you. Is there anything you want to say in reply to that, Mr Niketic?

MR NIKETIC: Yes, your Honour. In Cameron v The Queen, if I may, under “Federal jurisdiction”, at paragraph 44, line 6:

If there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth.

Thank you.

GUMMOW J: Thank you.

Having regard to the matters indicated, in particular, at paragraphs 3.2 and 3.3 of the respondent’s written summary of argument, we see no prospects of success of an appeal if special leave were to be granted. Accordingly, special leave is refused. Call application No 6.

AT 11.20 AM THE MATTER WAS CONCLUDED