VH v Director of Public Prosecutions (Vic) [2005] HCATrans 754 (9 September 2005)

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VH v Director of Public Prosecutions (Vic) [2005] HCATrans 754 (9 September 2005)

Last Updated: 27 September 2005

[2005] HCATrans 754

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M191 of 2004

B e t w e e n -

VH

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 10.33 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Robert Stary & Associates)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS R.J. ORR, for the respondent. (instructed by Director of Public Prosecutions (Victoria))

KIRBY J: Mr Croucher, we received the request that this be listed with Ellis, but we considered that it really raised different issues, and as Ellis was argued this morning, I do not know if you were here, it did not really touch on the matters that are germane to your application.

MR CROUCHER: As the Court pleases. This application raises two issues, firstly and principally concerning whether a court of criminal appeal, when considering a Crown appeal on a multiple count presentment, in deciding whether or not to intervene and/or in deciding to resentence, must apply the so-called double jeopardy discount to the individual sentences before moving on to consider questions of cumulation or concurrency in totality. Secondly, there is a question about the way in which the Crown stance on count 7, which was the pornography count, was dealt with in the Court of Criminal Appeal, the Crown having taken the stance in the trial court, that indeed there should be no cumulation on that count and then in the Court of Criminal Appeal that there should be no increase on that count nor any cumulation, yet nevertheless, the Court of Appeal did precisely that, increase the sentence and imposed a partial cumulation.

KIRBY J: Well, I understand those two points, but under the Constitution we hear and determine appeal from judgments and orders. Therefore, we focus our attention primarily on the order and the judgment and when one looks at the final order and judgment of the Court of Appeal in this case, in such a case it does not appear to be run and does not appear to be out of line with other judgments in such cases. So would we ever object to the issue of the way it is divided up and to the cumulative and concurrent parts of it if the final orders made appear to be correct?

MR CROUCHER: Indeed you would, your Honours, for this reason. Your Honour said that it appears to be the way it is done. Prior to this case, there were only two cases which I have been able to find, one of which was referred to by Justice Callaway in his judgment, Glazner, another of which was not, BAB.

KIRBY J: Is that on this issue of discounting the parts of the final sentence?

MR CROUCHER: Yes, the individual sentences.

KIRBY J: Yes, I see.

MR CROUCHER: Yes, I am sorry, your Honour, I have gone back to that point. However, since that time, of course, it has occurred on three other occasions, one of which was Ellis itself and two other cases to which I have referred recently of Papworth and Karipis.

KIRBY J: Well, I can understand your argument about that and that is because I am not very enamoured with intuitive or instinctive synthesis. But Justice Hayne is sitting with me and he takes the opposite view and the Court, I think it is fair to say, at the moment has something of a majority in favour of Justice Hayne’s view and, therefore, it really would not be fruitful to bring it up to look at that question.

MR CROUCHER: No, with respect, your Honour, the question of intuitive synthesis or otherwise is not the question. The question is whether the principled approach to either allowing an appeal or resentencing in the first place, as Boucher’s Case in our - - -

HAYNE J: But tied up in it also is a problem, is there not, about tailoring a sentence where you have multiple counts?

MR CROUCHER: Indeed, indeed.

HAYNE J: That, yes, you have to sentence on individual counts, but at the end of the process the sentencing judge has to stand back and look, particularly at the level of cumulation and like orders, to see where you have got to.

MR CROUCHER: Yes, indeed, and your Honour’s point implies that sometimes – well, perhaps in all cases you might say, in the end both approaches might produce the same total result. That is not necessarily so and for these reasons. Before I come to those reasons, can I say or submit that in principle, and this is a principle laid down clearly by the High Court in Pearce’s Case, reaffirmed in Johnston relatively recently, that the proper approach to sentencing is to consider the proper sentence on the individual count, taking into account all relevant considerations on the individual count - - -

KIRBY J: Yes, but the problem that I have is that that might well be so, and I have sympathy for that view myself as the first step that is taken and I understand your argument, but that is not going to get you anywhere if at the end of the day the matter comes to this Court and the Court takes the view that the final orders of the Court of Appeal are not infected with error because then we are troubling ourselves over reasoning, but our constitutional duty is to trouble ourselves over orders and judgments.

MR CROUCHER: Well, then, this is how it may affect that result. Firstly, given the actual increases in the sentences imposed here which were undiscounted for double jeopardy, which Mr Justice Callaway expressly said, for example, the sentence on count 2, which was increased from only five to six years and the sentences on counts 5 and 6 from four to five years undiscounted, had the notional discount been applied before intervening, given the principles enunciated in cases like Boxtel and many others that where, having applied the notional discount, the sentence that you would substitute would be very close to, not much different from the initial one, then you would not intervene in the first place, so that you may have had the result that you would not have increased or intervened on some of these counts, firstly.

Secondly, that being so, that may well affect a court of criminal appeal’s decision whether to intervene in general at all. Thirdly, in any event, even if there had been a decision to intervene, but different sentences had been imposed on any individual counts by reason of the proper application of double jeopardy, then the orders for cumulation, concurrency would have to be different if you were going to try to get back to whatever this total effective sentence might be. In going through that process you might arrive, as a court of criminal appeal, at a different result.

That is where there is a real risk of error being masked in the same way that in Pearce’s Case the majority said that to an offender it might not matter in the end what the result is provided it is the same in total, whether you have two counts concurrent or partially cumulative or whatever the case may be. But it is, with respect, apt to mask error, error of the kind that I have just identified.

HAYNE J: Can I identify what you say the error is. It is an error in part, is it, in the cumulation order, cumulation and concurrence, or is it an error entirely in fixing the individual sentences on individual counts?

MR CROUCHER: Well, it becomes both because it is an error in the first instance in failing to take into account a relevant consideration in fixing individual sentences firstly. But even prior to that, it is an error in failing to take into account double jeopardy in deciding whether or not to intervene on individual counts. But getting past those two, then thirdly, to take your Honour’s second point, it does become an error in relation to cumulation because those orders for cumulation that are imposed on undiscounted individual sentences are imposed on an imperfect foundation, which is the very sort of reasoning which gave rise to success in the appeal in Pearce’s Case.

HAYNE J: But the point to which I want you to come then is, what is it you do when framing a cumulation order?

MR CROUCHER: These are the steps - - -

HAYNE J: Do you not step back - - -

MR CROUCHER: Yes.

HAYNE J: - - - and try to arrive at an overall sentence accurately reflecting the criminality revealed by the series of offences for which you have sentenced the offender?

MR CROUCHER: Plus discounted by double jeopardy, that is right.

KIRBY J: Your argument, as I understand it, good or bad, is a launching-pad argument. You say unless you discount the component parts, the risk is that the launching pad for the final review is exaggerated?

MR CROUCHER: Indeed. For example, the base count in this sentence was count 1 which was seven years so that the total cumulation ended up being, with respect to a couple of other counts, two years to get to nine. Now, had double jeopardy been applied properly, that individual sentence would have been somewhat less on the authorities. What that figure is we do not precisely know, but let us assume something like 12 months less for the sake of argument. That may well have then affected, when considering orders for cumulation, the extent of cumulation. Now, it might be that you come to the same result, but it might not be either and particularly - - -

HAYNE J: But in this Court you would have to go so far as to say, would you not, that nine/seven lay outside the range discounted on a Director’s appeal for incest occurring over the period that this had in the circumstances it had with an offender of this character, et cetera.

MR CROUCHER: In my submission, I do not have to go that far because the point of principle still needs to be decided in the same way that it had to be in Pearce’s Case. But that said, it is submitted that it is plain that it is outside. When one has a look at the judgment of Justice Eames, who went through a detailed survey of incest cases, he said things like this. For example, at page 78 of the application book, line 19 his Honour said:

Whilst it is certainly not clear-cut that the sentence in this case constitutes a departure from the range of sentences imposed or upheld in many apparently similar cases, that observation needs qualification.

Then he goes on to speak of some of the aggravating factors in that case. Similarly, over the page at page 80 of the application book – and interestingly his Honour at line 20 seems to be attacking not the individual sentences, but the total effective sentence where he says at line 19:

Having regard to those considerations, and whilst making due allowance for all mitigatory features and the principle of totality, the total effective sentence arrived at by the judge, in my opinion - - -

KIRBY J: But it is the last words in that sentence that have a knell about them for your application?

MR CROUCHER: True, I understand that, but can I take your Honours further, if we keep reading, at line 25.

KIRBY J: That is the conclusion to which I have been drawn.

MR CROUCHER: Yes. But his Honour goes on at line 30:

In agreeing with the proposed sentences, however, it should not be taken that a sentence of seven years imprisonment with a five year non-parole period, on a plea of guilty, for a man without prior convictions, would be so low as to be outside the range of sentences applicable to other cases of incest. My review of authority suggests to me that that sentence would be at the higher end of the overall sentencing range.

But, of course, there are certain aggravating features which tend to move it the other way. But his Honour goes on and says at line 44:

Furthermore, in agreeing that the total effective sentence, on re-sentencing, ought be nine years imprisonment, with a non-parole period of seven years, it should not be taken that but for the factor of double jeopardy I would have agreed to impose a sentence which was very significantly greater.

So it was a close run thing in his Honour’s mind. Being a close run thing in his Honour’s mind and considering the type of error which could be masked by what I say is this erroneous approach, which is inconsistent with sentencing principle generally I might say, that you look simply at the total effective sentence with a factor rather than the individual sentences first, then there is a real risk that - - -

KIRBY J: Yes, I understand the argument and I have some sympathy for the launching-pad aspect of it, but I just point out to you again that in the end Justice Eames concurred in the orders of Justice Callaway with Justice Buchanan who added nothing to what Justice Callaway had said.

MR CROUCHER: Yes, but just, your Honour. That is the reason I pointed out those passages. It was just there. Of course, we say if you are just there you should be dismissing an appeal of this nature anyway, but in any event - - -

KIRBY J: Well, a dissent might have been an invitation for this Court to consider it, but normally these issues of sentencing had to be left with judges who do much more of it than we do.

MR CROUCHER: Yes, but, your Honours, Crown appeals are growing like Topsy in this country. There was an article published in.....Law Journal recently and in the Australian Law Journal as well that said that in Victoria, I think, between 2001 and 2003 it went from nine in a year to 29 and with a pace, the same sort of things happening.

KIRBY J: Twenty nine a year is not - - -

MR CROUCHER: For Victoria it was a big time.

KIRBY J: Yes, in comparison to the flood that we have to deal with, it is nothing.

MR CROUCHER: In New South Wales, that is right, more litigious there.

KIRBY J: Leave time for your second point. Do not forget your second point because that might be helpful to you.

MR CROUCHER: As your Honour pleases, and it is this, that below, as I have pointed out, in the trial court the Crown said no need for cumulation of count 7. Secondly, in the Court of Criminal Appeal the Crown stood by that and said also do not say that there should be an increase in that sentence. Yet the Court of Criminal Appeal went from 12 months to two years and made it partially cumulative on the rest.

HAYNE J: Now, is that not classic judicial tailoring of a sentence?

MR CROUCHER: Well, it may well be, but it is judicial tailoring, if that be the correct expression, your Honour, that ought not to have occurred given the Crown’s stance. In Everett this Court said that a court of criminal appeal should take into account in considering whether or not to grant leave to appeal to an attorney when that was the case, or in resentencing, the fact that in the trial court the Crown has, when a particular sentence or style of sentence is being foreshadowed or submitted on behalf of an accused, that if they simply acquiesce or say nothing, then they are not entitled on Crown appeal, or at least if not entitled, it should be viewed with some circumspection when they take an about face.

Well, then, if that is correct, it must be an even more serious error to ignore a stance favourable to a prisoner in a trial court, which has then been maintained by the Crown in the Court of Criminal Appeal, to produce a sentence like this on a Crown appeal that in the end added at least six months to the total effective sentence, doubled the individual sentence, was undiscounted, that individual sentence, for double jeopardy. Also in Everett there is some support, it is submitted, indirect though it may be, for the notion that you can sever, in a sense, individual counts, in the Court of Criminal Appeal’s discretion, by looking at the individual counts and deciding whether or not you apply double jeopardy or whatever other factor it might be to that issue.

It is at page 303 of the judgment where the Court, in a majority which comprised Justices Brennan, Deane, Dawson and Gaudron, having dealt with the notion that indeed the Crown ought to be debarred effectively from taking this different stance and referring to Chief Justice King’s remarks in Wilton to the same effect, said this at page 303:

Those comments –

Chief Justice King’s comments –

were made in a judgment disposing of an actual appeal after leave had been granted and, as the third sentence makes clear, are directed to a case where an order suspending the whole of the unexpired part of a term of imprisonment has been made with the result that the offender was entitled to go free. They should be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion. Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or –

and this is the important aspect –

should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave.

So in this case should not have been any intervention, should have been restricted in relation to count 7 there, no intervention at all. Yes, you complain about manifest inadequacy or resentencing in the other counts, but despite the Crown stance, not just an acquiescence below of a particular course, but a positive submission that it be done that way and a submission in the Court of Criminal Appeal not to depart from that course, nevertheless, the court has gone totally beyond it. So there are circumstances in this case which on either ground could give rise to a proper resentencing in this case and result in a different sentence.

KIRBY J: Yes, thank you. We understand the point. Yes, Mr McArdle.

MR McARDLE: Your Honours, concerning the first point, as a matter of principle it is submitted desirable that the discount, the double jeopardy discount come and be applied to the total sentence. Now, the reason for that is that one of the - - -

KIRBY J: What is the answer to the launching-pad argument, that if you do not discount the component parts then the risk is that you have a bigger starting point and you might get into excess?

HAYNE J: Start wrong, go wrong.

MR McARDLE: Well, the answer might be this, your Honours, and this is really our major point on this issue. One of the purposes of Crown appeals is to set proper sentencing standards.

KIRBY J: Is it true that since you have had a lot to do with it that it has gone up to a floodgate flood?

MR McARDLE: I do not know about floodgates, your Honours. I am afraid I have not come to Court prepared with figures as to the number of appeals. We could supply those independently to the Court if that is required, but I am prepared to concede, I think, that of recent times, as a matter of impression, my own personal impression is that there are probably more. Now, whether that be the situation in this State or otherwise, I really do not know.

KIRBY J: Well, it is not really relevant. We just deal with them as they come to us. But there is said to be a logical flaw in Justice Callaway’s view that you only look at the end, that if you do not look at the component parts, then you build your blocks in a way that there is a danger that you will get too high and that after all it is a sentence of a court and, therefore, has to be right as far as sentences can be right, each one of them, each part.

MR McARDLE: Yes. Your Honours, just to return to the first point that I was endeavouring to make, the purpose of these sorts of cases is to create proper sentencing standards so that courts in the future, the sentencing courts at first instance, can refer to those insofar as they afford some guidance or a template, that is to say, a court in the future would be able to say, in this case of VH a sentencing judge might say, “In circumstances which I am confronted, I now know that the Court said that the appropriate sentence for whatever count was whatever it was”.

Now, if those individual counts are to be discounted, and there is never any figure, it is never expressed in terms of percentages or anything like that, it would be a guess at best, then you really do not know. You have to make that allowance for the discount. The same thing – the double jeopardy discount is an act of mercy. It is said to reflect the fact that the individual has to stand sentence on two occasions and that is a matter of stress, whatever expression you choose to use, and so it is said that something less than what would otherwise be awarded as a sentence is awarded. It is never put in terms of percentages. I do not know if there is any study as to trying to work out what the percentage is, but that is just not the way it is done.

So that if one was looking at a series of counts such as this and you were the sentencing judge or the counsel assisting the sentencing judge, then you would say, looking at the total effective sentence, the result of cumulation and concurrency and the setting of the minimum term, et cetera, then I have to allow in my own mind that some discount has been given for the double jeopardy point. Now, if the double jeopardy comes in when you are dealing with – it could be engineered of course by all this accumulation and concurrency and such. That is how you reach it. But without that you would examine it in terms of totality. You would say, well, now, putting aside the double jeopardy, is this an appropriate sentence for this particular course of behaviour? Then because of the double jeopardy you would adjust the sentence downwards and the way you do that would be orders of cumulation and concurrency.

HAYNE J: But the argument with which you began, namely, the importance of giving guidance to trial judges or sentencing judges seems to wilt at the point of orders for cumulation and concurrency, “Well, I am not going to give guidance there”.

MR McARDLE: No, but the double jeopardy notion is deeply ingrained in the law. It has to be dealt with. The convenient way of dealing with it - - -

KIRBY J: Mr Croucher says it is not very ingrained in this case because although you were not asking for disturbance of the sentence on the seventh count, that in fact the Court of Appeal increased that sentence.

MR McARDLE: Yes, they did, they did.

KIRBY J: Significantly, and that that then became the launching pad for moving to alter the final sentence including the sentence to be served.

MR McARDLE: The matter is attended to at page 72 of the application book, but what has happened there is that that submission was made. The court at that stage, I assume, had come to the conclusion that the appeal was to succeed and they were faced with resentencing the applicant. If that is the situation, then they are not obliged to accept what the Crown submissions are in relation to sentencing. That is simply was has happened.

KIRBY J: What do you say about that second point concerning the fact that this is really contrary? One does get a bit of an impression that the, as it were, hard line that was taken in Everett is softening now and that Crown appeals being now much more familiar and common are not upsetting appellate judges as much as they used to. Everett and Tait were examples of the early days when it was such a new thing that the Crown was appealing that the judges really were still very much affected by the old traditions.

MR McARDLE: Yes, that may very well be the case and things have changed.

HAYNE J: Not least in the fact that the Crown no longer stands mute at the point of sentencing.

MR McARDLE: We have to say something because otherwise you have terrible trouble on an appeal.

KIRBY J: Is the bottom line of your submission that in the end, even whatever views this Court might in a more appropriate case have to say about the component parts and the balancing of the sentence and, dare I add, the intuitive or instinctive theory, that the actual sentence imposed by the Court of Appeal and the non-parole period would not lead in this Court to a different order?

MR McARDLE: No, it is a terrible course of behaviour. Your Honours are familiar with the facts. Terrible.

KIRBY J: It is terrible, but one sometimes wonders, having sat in these cases over many years, what the criminal law has to offer in such matters because blood and often affection still bind people together after the criminal law has had its say.

MR McARDLE: Your Honours, to an extent this is an interesting example, if you come to the facts of it, of a failure of the criminal law because you will remember that the mother of the child complained to the police, was going to go home for one more night, and which she was afraid that an incident would occur. She fell asleep and an incident did occur, the last of the incidents. So the criminal law or the criminal justice system was not much help on that occasion. But one thing it does and your Honours - - -

KIRBY J: Perhaps unaffected by the fact that the applicant has attempted to commit suicide and is under suicide watch and is under detention in circumstances which are extremely onerous and will be for all of his sentence.

MR McARDLE: That appears to be the situation at the time that this matter was determined. What his future, so far as prison management is concerned, is something that I really would have no information about, I am afraid. I do not know.

KIRBY J: I have to tell you that if Justice Brennan and Justice Deane were sitting here, they would be, I think, very surprised by the way the Court of Appeal interfered with the seventh count.

MR McARDLE: The child pornography count, your Honours, yes.

KIRBY J: Given that the Crown did not ask for anything different, but given that that was in a sense incidental to the principal offence.

MR McARDLE: Your Honours, can I return to that in a moment. I just want to return to the – at least say some more about the question of the discount to the individual sentences. Every time there is a discount, just as there is in sentencing, it is an exercise of discretion. Views on discretion, of its very nature, are going to vary. Now, if you have a presentment with perhaps 10 counts or whatever it is here, seven I think, if you are going to discount each of the individual sentences, then you are going to exercise a discretion seven times, or the court is.

KIRBY J: Well, so what? That may well be what judges have to do in sentencing. If the nature of the function is - - -

MR McARDLE: With all respect, your Honours, is it not easy to exercise a discretion once. If it has to be exercised in the - - -

KIRBY J: It is easier, but the question is, is that lawful? Of course it is easier.

MR McARDLE: But, your Honours, there is scope for disagreement every time a discretion is exercised when you have a court of three.

KIRBY J: Well, I do not know about Justice Hayne, but you are on wobbly ground as far as I am concerned on that, because a sentence is a sentence.

MR McARDLE: Yes.

KIRBY J: And if it is a sentencing discretion, then it has a discretionary component. If it is part of the final product, it all adds up and is relevant and has to each part be dealt with according to law. The strength of your case I think is the bottom line.

MR McARDLE: Yes.

KIRBY J: I am, I must admit, anxious about the approach that Justice Callaway has expressed.

MR McARDLE: Yes. Your Honours, we say this and we will leave it at that. It is best that if a discretion is to be exercised, the double jeopardy discretion – now, I assume it is not our learned friend’s proposition that that is exercised when the – not only with the component counts, but also with the total. I mean, it has to be exercised only once.

KIRBY J: But his best thrust against you is that the proof of the pudding is, if you are just looking at the end at what the Court of Appeal did to the child pornography count, which you were not complaining about, that you did not seek to have given greater importance in the facts of the case, that you did not seek to have increased on its own, but that because they only looked at the end product, they then disturbed that order in a Crown appeal and that became the launching pad for getting to a final sentence which is higher, as Justice Eames seemed to say, than the standard of sentences in incest cases.

MR McARDLE: Your Honour, the response to that is this, it is submitted, that once it is determined that this person has to be resentenced, the court should not, it is submitted, feel bound by submissions made by the Director. The matter has to be reconsidered in its entirety. It was reconsidered, as you will see at page 72. It is not as if his Honour was indifferent to this issue. He did not agree with the Crown position on it. He was not going to be ever bound by the Crown position on it. Our submissions are rejected and not accepted daily.

KIRBY J: You said you were going to come back to the seventh count. You seem to be skirting - - -

MR McARDLE: I am sorry, that is really what I was saying about that, that in fact it is simply an example of an occasion where this man has to be resentenced. The appeal has been successful. He has to be resentenced and then in those circumstances the matter is at large and that the sentencing court would not be bound by the submissions made by the Crown. His Honour took a different view as to the use of the pornography. He took it as being a more serious matter and worthy of some accumulation, then so be it.

KIRBY J: Yes, very well. Anything else?

MR McARDLE: I think not, thank you very much, your Honours.

KIRBY J: Yes, thank you very much, Mr McArdle. Yes, Mr Croucher.

MR CROUCHER: It was not just a submission by the Crown, it was a matter of agreement. At page 8 of the application book at line 9 the learned prosecutor in opening the matter said this:

that really takes me to the fourth point I want to raise, and that is that it is agreed between the Crown and the defence that any sentence of imprisonment which your Honour imposes on Count 7 should not be cumulative - - -

HAYNE J: Have we not looked at that recently in GJS and – I cannot think of the other initials?

MR CROUCHER: Yes, you have in part, your Honours.

HAYNE J: The court is not bound by the agreement.

MR CROUCHER: No, not bound, but it is accepted. But nevertheless, when considering whether or not to intervene in the first place and, secondly, having decided to intervene nevertheless, it is a consideration that Everett says must be taken into account.

HAYNE J: Well, the fact that the parties agreed on it may itself bespeak error, because it may well explain why the original sentencing judge got to an answer that was manifestly inadequate and that was the problem in GJS, was it not?

MR CROUCHER: Yes, I understand your Honour’s point, but - - -

KIRBY J: You are like Mr Richter in the earlier case. You are going backwards in your reply. I think you had better change your tack.

MR CROUCHER: But, your Honour, the curious point was that his Honour Mr Justice Callaway was uncertain in any event about the basis for rejecting that submission. He says at page 72, line 20:

I doubt that the approach adopted below was impermissible –

“but I propose to do this anyway.” So it is a pretty uncertain and, with respect, almost capricious foundation to ignore the Crown’s stance in those circumstances. I mean that respectfully.

HAYNE J: That is a bit much, Mr Croucher.

MR CROUCHER: I was groping for a word and I probably chose the wrong one.

KIRBY J: Use a different adjective, a little lower on the scale.

MR CROUCHER: I cannot think of one, but your Honours can take it that there is one there.

KIRBY J: Betrayed error, that is always safe.

MR CROUCHER: Yes, I will withdraw what I said and I say betrayed error. The next point is this, your Honours, that my learned friends say that somehow this will create distortions, but it is quite the opposite. In Pearce’s Case, to which reference is made in the written submissions and larger parts of it are extracted at page 92 of the application book, the last paragraph there extracted from Pearce says this:

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.

Now, it has always been understood when looking at Crown appeals – decisions of the Court of Criminal Appeal in relation to Crown appeals that they have to be considered carefully because they are discounted by reason of double jeopardy. Nothing would change if that practice continued. So when looking at individual counts or total effective sentences you stay the same. You still consider that double jeopardy has been applied.

Here there is a distortion created. Well, it does not apply to the individual counts, but it applies to total effective sentences. But what happens, and in line with what the majority was saying in Pearce, what happens when you have, for example, two offenders on the one presentment, both committed the same offence in count 1, but counts 2 to 7 relate only to the second offender? The Crown appeal against both sentences, they are brought up. On count 1, on the count in common, there will be no discount for double jeopardy for the second offender because he has multiple counts. On count 1 for the person who has a single count double jeopardy has to apply, because it is his only count. There is a distortion. It shows how the process itself breaks down.

Or consider a case where an offence like count 1 in this case was committed by one individual and came before a court of criminal appeal, the sentence was increased by reason of its being manifestly inadequate, but of course that increase was moderated by reason of double jeopardy, well, then how is that of any more guidance or less guidance than what is done in this case? There will be distortions. You will have the same set of facts giving rise to two different individual sentences.

You can think of a million examples. Multiple complainant cases where it is often said that in order to reflect the fact that two victims have been offended against there ought to be an apportioning of the total effective sentences so that you get not just, you know, say, eight years for one complainant and eight years for the other, but then only have a small amount of cumulation.

KIRBY J: Which counts were representative here.

MR CROUCHER: Indeed, that is another factor which I was about to come to. The first two counts were representative. So they are a form of totality in themselves already because representative counts, as your Honours know, or sample counts are counts which say, well, it is one incident, but set against a background of continuing abuse, which is a form of rolling up or a form of putting lots of - - -

KIRBY J: You seem to be colour blind, Mr Croucher. The red light has come on.

MR CROUCHER: If the Court pleases, those are my submissions.

KIRBY J: Is there anything important that you have not said that you need to finish?

MR CROUCHER: Probably, your Honours, but otherwise your Honour might evict me. If the Court please.

KIRBY J: Justice Hayne will give the reasons and pronounce the orders of the Court.

HAYNE J: In our opinion, there is no reason to doubt the correctness of the actual orders made by the Court of Appeal of the Supreme Court of Victoria. More general questions which the applicant submits arise out of that court’s reasons would not fall for consideration if special leave were to be granted. We therefore need express no view about whether what is commonly called a “double jeopardy discount” should be applied only in the fashion in which it was in this case by the Court of Appeal.

Special leave to appeal is refused.

AT 11.13 AM THE MATTER WAS CONCLUDED