Vivona v Director of Public Prosecutions [2006] HCATrans 334 (16 June 2006)

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Vivona v Director of Public Prosecutions [2006] HCATrans 334 (16 June 2006)

Last Updated: 20 July 2006

[2006] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M123 of 2005

B e t w e e n -

LUIGI VIVONA

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 1.32 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR L.C. CARTER, for the applicant. (instructed by Victoria Legal Aid (Criminal Law Section))

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

CALLINAN J: Yes, Mr Tehan.

MR TEHAN: If the Court pleases, this application should be granted because there is a need to resolve a question of fundamental importance to the administration of criminal justice. That question is this: should the governing principle for application of the double jeopardy rule upon successful Crown appeals be the substitution of a sentence towards the lower end of the range of sentence or should it be the substitution of a sentence somewhat less than would have been imposed by the sentencing court?

That question arises because of a stark contrast in approach to application of the double jeopardy rule by intermediate courts. In New South Wales and Western Australia it is expressed in terms of substitution of a sentence towards the lower end of the range. In Victoria and Tasmania it is expressed in terms of substitution of a sentence which is somewhat less than the sentence which otherwise would have been imposed. This sharp contrast is apparent from recent cases.

Could I take the Court firstly to R v King, which is behind tab 2, a judgment of the New South Wales Court of Criminal Appeal and, in particular, take your Honours to the judgment of Justice McColl at page 443, paragraph 181, where his Honour said:

I have taken into account that in re-sentencing the respondent, the Court must recognise the element of double jeopardy involved in the respondent twice standing for sentence by imposing a sentence which is less than the sentence it considers should have been imposed at first instance. This has been described as “the least sentence which could properly have been imposed ... at first instance” ... as “one which is at the bottom of the range” ... and one “towards the lower end of the range of available sentences” ... or the “minimum sentence which should have been imposed at first instance” –

In this State could I take the Court to the judgment of Justice Callaway in DPP v BAB, which is behind tab 5, and take your Honours to what was said by his Honour at paragraph 3 of his judgment:

The second is to say that the concept of double jeopardy, which is reflected in the overall total effective sentence, does not require us to impose a sentence at or near the bottom of the range. All that it requires us to do is to give the respondent an adequate discount for having to stand for sentence twice at the instance of the Crown. To give him more than that would be unwarranted and contrary to the public interest.

A statement which was concurred in - - -

HEYDON J: What difference would it make in this case which test you applied in view of the general record of the applicant?

MR TEHAN: In this case it would make an enormous difference, with respect, your Honour. This was a case where the sentence of the applicant was increased from seven years to 17. That is why this case is the appropriate vehicle to test this point.

HEYDON J: But the applicant had a very bad criminal record, did he not, in particular, for crimes of this character?

MR TEHAN: He had a bad record, yes.

HEYDON J: What is the difference between the “at or near the bottom end of the range” for a person like that and an “adequate discount for having to stand for sentence twice”, to use Justice Callaway’s expression?

MR TEHAN: There is a significant difference, in our submission, your Honour, between a sentence which is at the lower end of the range, or to use the phrase “the least sentence which is possible” and one which simply gives a somewhat less sentence. The New South Wales approach gives fullness to the intensity of the double jeopardy principle. The Victorian approach does not. It is resisted in this State.

HEYDON J: But the range is not a range from nought to whatever the maximum sentence is. It has to be a range appropriate to the particular accused person.

MR TEHAN: I understand that, your Honour, but in this case the reality is that there was no reference to principle at all.

HEYDON J: That is a separate and - - -

MR TEHAN: None whatsoever.

CALLINAN J: Her Honour Justice McColl in King referred to Dinsdale in which Justice Kirby said what might be appropriate would be a sentence “towards the lower end of the range of available sentences”. I do not read her Honour, and I do not read the New South Wales cases, as requiring that in every case it be the least possible sentence and, in any event, it has to be a sentence appropriate to the offence and the criminal history and other matters relative to the accused in question.

MR TEHAN: The fact that there is a real difference in the approaches arose recently in the Queensland - - -

CALLINAN J: There cannot be one sentence appropriate to all offenders. It just cannot be so. All the subjective factors are going to be different in every case.

MR TEHAN: Clearly, your Honour, but - - -

CALLINAN J: So there is no one sentence that is going to apply to all of them.

MR TEHAN: No, clearly, but there is one principle. Why should a New South Wales offender on a Crown appeal receive a sentence which is less than a Victorian offender on a Crown appeal?

CALLINAN J: There might be a lower incidence of the crime in New South Wales. There might be all sorts of factors. As I say to you, I do not read her Honour’s statement as imposing upon all criminal courts in New South Wales a rule that the sentence imposed must be the lowest sentence that can possibly be imposed.

MR TEHAN: With respect, your Honour, the question that we raise was formulated – indeed, our ground 2.1 on this point was formulated by Chief Justice Gleeson last year in the special leave application concerning York, a relevant transcript of which is behind tab 9. If we could take the Court to that, at point 8 on the second page of the transcript his Honour the Chief Justice said:

That principle of which you speak has some fairly shadowy origins. It is expressed in significantly different terms from time to time, sometimes as the least sentence that might properly be imposed or sometimes as a sentence towards the lower end of the range or sometimes, perhaps, in other ways. But it is described in the manner Mr Walker described it as a principle relating to double jeopardy.

There can be no doubt that there is a real difference in the approaches of intermediate courts. Upon the hearing of the appeal in that case your Honours Justices Callinan and Heydon at tab 8 in the cases we have provided to the Court, on the third page of the extract behind tab 8, at paragraph 63 at about point 2 on the page said:

These reasons are compelling, and relieve us of any necessity to consider the other submissions of the parties.

Then in footnote 51 which was referred to it reads:

For example, the effect of the constraints imposed by the Penalties and Sentences Act 1992 (Qld) s 9; the principle that courts should impose sentences at the lower end of the scale in appeals by the prosecution; and error on the part of the prosecution is ordinarily not to be used or held against an accused in a prosecution appeal.

We would say that there is recognition by this Court that there is a difference. There is recognition by the Court of Appeal in this State that there is a difference. In this Court Justice Kirby in Dinsdale v The Queen, an extract of which is behind tab 1, said at paragraph 62 of his judgment in that case:

The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences.

He referred specifically in footnote (77) to the Victorian case of R v Clarke by way of contrast. Why the contrast? Because we know that the test in this State is not a sentence towards the lower end of the range; it is a sentence which is “somewhat less” than would have been imposed by the original court. In our submission, the dichotomy is clear and needs to be resolved by this Court.

This case is the appropriate vehicle for resolution of the application of this matter because the Court of Appeal paid no regard to the double jeopardy rule at all. No reference at all was made to it. The sentence increase here is from seven years to 17 years. The court imposed a sentence. Acting Justice Harper at application book 68, in the last paragraph of his Honour’s reasons, simply said that he was imposing a sentence which he considered appropriate. Had the court imposed a sentence towards the lower end of the range, there would have been far less, in our submission, than 17 years.

All States and Territories, particularly Victoria and New South Wales, have seen a marked increase in the number of criminal appeals against sentence. In some States the increases allowed for have been substantial; in others they have been moderate. Differences arise because of the stark contrast in the application of the double jeopardy rule. This matter needs to be resolved by this Court because of the importance of criminal appeals in setting sentencing standards and, secondly, because consistency and certainty in sentencing is important for all litigants involved in the criminal justice system. Accordingly, in our submission, there should be a grant of special leave in relation to ground 2.1 of our draft grounds.

There are two further matters. Firstly, in Victoria the discount for double jeopardy is applied only to the total substituted sentence rather than the new individual sentences. That approach is epitomised by Justice Callaway’s comments in the case of VH, an extract of which appears behind tab 11. If I could take the Court to paragraph 14 of his Honour’s reasons where he says:

I have not discounted the individual sentences for double jeopardy, but the total effective sentence must be so discounted.

This approach, we would submit, is inconsistent with what this Court has said in Pearce, an extract of which is behind tab 10 of our authorities. If I could take the Court to paragraph 45 of the judgment of the Court at page 624 where it was said:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

In our submission, where there has been such an increase in sentence as there has been in this case, particularly by the total effective sentence, then the question of whether the discount for double jeopardy applies to individual sentences is thrown up for consideration.

The second point is this. The Court of Appeal found the applicant to be guilty of sexual offences by virtue of his plea to counts 7 to 11. The court did so without hearing any argument from the applicant and did so without having before it a ground of appeal agitating that matter from the Crown. That they did so confirms our submission that they acted without any restraint at all in re-sentencing the applicant. One has to ask, where is the discount when there has been such a massive increase in sentence from seven years to 17 years?

HEYDON J: I will just pick you up on one thing. Did not the Crown argue to the Court of Appeal that the applicant should be sentenced as a serious sexual offender, at paragraph 34 of the appellant’s submissions in the Court of Appeal?

MR TEHAN: Yes, and that was met with the response by Justice Vincent to our learned friend here to the effect that, “Mr McArdle, you don’t have a ground of appeal complaining about that”, and that was where the matter was left, your Honour.

HEYDON J: It is not true to say that there was no notice given about it.

MR TEHAN: It was not a ground of appeal. It was mentioned in running and that is where it was left. The reality is, your Honour, that it is on those counts, the indecent assault counts, that the cumulation – the effect of the orders for cumulation is eight years. For these reasons, in our submission, special leave should be granted.

CALLINAN J: We need not hear from you, Mr McArdle.

This applicant seeks special leave to appeal against sentence. Any appeal, if it were to proceed, would raise no point of general importance and would enjoy no prospects of success because of the particular facts of the case, the criminal history of the applicant and the need for the protection of the public. Accordingly, the application is refused.

AT 1.48 PM THE MATTER WAS CONCLUDED