El Hani v The Queen [2005] HCATrans 146 (11 March 2005)

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El Hani v The Queen [2005] HCATrans 146 (11 March 2005)

Last Updated: 29 March 2005

[2005] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S222 of 2004

B e t w e e n -

ANTOUN EL HANI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 11.44 AM

Copyright in the High Court of Australia

MS D.T. SPEARS: If the Court pleases, I appear for the applicant. (instructed by McKell’s)

MR R.F. SUTHERLAND, SC: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Ms Spears. You want to file some further documents?

MS SPEARS: Yes, your Honour.

GLEESON CJ: Yes, you have that leave. Go ahead.

MS SPEARS: Is it convenient to deal with this matter today?

GLEESON CJ: Yes.

MS SPEARS: This application for leave seeks leave in relation to a contention that the sentencing judge in the Court of Criminal Appeal erred in adopting an impermissible mathematical and formulaic approach to the sentencing of this Commonwealth offender. Specifically, the error arises in the application of section 16(2) of the Crimes Act 1914 and the quantification of a discrete discount for a plea of guilty. My friend has in his authorities provided a copy of that section.

Section 16A outlines a non-exhaustive list of the matters that the Court is to have regard to when passing sentence on federal offenders. One such factor is that the offender pleaded guilty. Traditionally, the sentencers were not required to specially identify the value of that discount and the usual practice was to identify one discount identifying both the value of the plea of guilty and assistance to authority. In this regard I refer to your Honour’s comments in the case of Gallagher, where it was said:

It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial, but will also be illogical.

In my submission, in the context of this applicant, the judge at first instance did separate out the value of the plea of guilty and quantify that as 12½ per cent and then separately quantified the value of the assistance to authorities.

GLEESON CJ: Just remind us, Ms Spears, did the legislation require an identification of the discount that was given for cooperation with the authorities, so that the discount could be taken away if the cooperation did not materialise?

MS SPEARS: That was a separate discount under section 21E for future assistance - - -

GLEESON CJ: But this was past assistance?

MS SPEARS: Yes, this is past assistance, which is generally covered in that non-exhaustive list in 16A.

GLEESON CJ: Thank you.

MS SPEARS: That was the traditional practice. There has been, in New South Wales, the development and promulgation of some guideline judgments, one of which touched upon these two general issues, that judgment being R v Thomson and Houlton (2000) 49 NSWLR 383 where the Chief Justice indicated a guideline which was in fact promulgated in the following terms, that “The utilitarian value of a plea” was to “be assessed in the range of 10-25 per cent” and that was different from previous guidelines because it suggested in numerical terms the usual discount for the plea.

In the context of federal offenders in the federal jurisdiction, the majority of this Court in Wong held that a guideline that was articulated in terms of a numeric outcome and adopted a mathematical range - - -

GLEESON CJ: What do the sentencing information statistics show as the usual discount for a plea? A third?

MS SPEARS: The court in Thomson looked at the general material that was available to see what could be shown and there was no clear statistical result arising. In my submission, that is probably because, in terms of looking at statistics, that is generally subsumed by other factors which are not separate variables.

GLEESON CJ: Including remorse.

MS SPEARS: Including remorse, and that is a matter that there are specific findings in this appeal which I will not be trying to traverse. In my submission, at the end of the day – and I hope that I have indicated this clearly enough in the submissions as they currently stand – the point of the exercise is that we want to say two things. One, there is an error of principle in the very quantification of these discrete factors that section 16A does not require to be further articulated. We would say that section 16A is important as much for what it does not say as for what it does say, and that in this case there has been a breach of that.

Moreover, if I might put it in these terms, there has been a general contamination of the effect of Thompson and Houlton into matters which are not federal matters, and that has an effect whereby, both in terms of the principles that are being applied and this perception that there is an upper limit of 25 per cent, federal offenders being dealt with in New South Wales Chapter III courts may be discriminated against as opposed to federal offenders in other courts.

GLEESON CJ: Where does that figure of 25 per cent come from? I mean, I know where it comes from in this case, but outside this case? Why do you say a general upper limit of 25 per cent?

MS SPEARS: My submission is in fact that in the context of the federal jurisdiction there is no such limit.

GLEESON CJ: No.

MS SPEARS: And the point is that that limit is now being used and discussed in New South Wales courts because of the influence, either conscious or subconscious, of this decision of Thomson and Houlton and that has, with respect, led some New South Wales courts to fall into error.

GLEESON CJ: Do you mean that is where Judge Shadbolt got the figure from?

MS SPEARS: Yes, and that is where that general notion of a mark of an upward figure of 25 per cent is coming from, where, indeed, the previous practice where a general figure was found to cover issues of the total range of matters covered in section 16A meant that there was no particular upper limit of any one particular factor.

GLEESON CJ: How does that allow for a factor that always used to be regarded as relevant and that is what I might call the “inevitability” of the plea of guilty?

MS SPEARS: There is discussion in the cases prior to Thomson and Houlton as to the fact that that traditionally could have been included in an assessment on the particular case of the value of the plea of guilty.

GLEESON CJ: Was there a time when the legislation in New South Wales actually referred to that in connection with pleas of guilty and discounts for pleas of guilty? That is, to put it bluntly, whether you were caught red-handed or whether, on the other hand, your plea of guilty had the utilitarian benefit of saving a long trial and so forth?

MS SPEARS: Not as such. Under the now repealed section 439 of the Crimes Act there was a provision that said that judges must take notice of the fact that a plea was entered and the time that plea was entered and then those judges may discount, but - - -

GLEESON CJ: One of the issues that you probably remember being agitated as this legislation was developed was that there was a revulsion against giving the same discount for a plea of guilty to someone who had no defence as you gave to somebody who could have put up a substantial fight.

MS SPEARS: Yes.

GLEESON CJ: But that has never been reflected in the legislation, except by the discretion inherent in the word “may”.

MS SPEARS: No, and only to the extent that in the determination and the decision to promulgate a guideline in Thomson and Houlton the court had regard to that existing statutory requirement and that statutory requirement in New South Wales is still now in the Criminal Procedure Act. But there is, in my submission, no direct equivalent at the Commonwealth level. The place where, in the context of the federal regime – the place in which recognition of the plea of guilty in all its senses can be seen to be allowed is through the general application of section 16A.

GLEESON CJ: Well, now, another matter you have to address before you finish, Ms Spears, is this. Assuming you are right as a matter of principle about the points of principle that you have been discussing, you are going to have to persuade us, I think, that if there had been a completely orthodox approach in terms of principle, your client had a prospect of being better treated than in fact he was.

MS SPEARS: Yes. I have made short reference to this in the written submissions, which perhaps could have been developed more fulsomely.

GLEESON CJ: It goes to the question of what is sometimes called “the merits”.

MS SPEARS: Yes. This case raises quite starkly some of the issues, because of the findings both at first instance and on appeal as to the absence of remorse. However, in my submission, had the court not been preoccupied by the case law and specifically Thomson and Houlton, there is scope for – looking by reference to the other Commonwealth sentencing
cases in this area – the application of a discount in the order of maybe five per cent more.

In my submission, that is, in one sense, mathematically not a lot, but, in terms of the sentence ultimately imposed on this applicant and the sentence considered before any discounting by implication, that is a considerable amount. Because of that, the application is that the matter be remitted. Thank you.

GLEESON CJ: We see the force of the arguments of principle that have been advanced by Ms Spears on behalf of the applicant, but having regard to the findings of fact made in this matter, we consider that ultimately there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.58 AM THE MATTER WAS CONCLUDED