Gany v Director of Public Prosecutions [2006] HCATrans 629 (10 November 2006)

--

Gany v Director of Public Prosecutions [2006] HCATrans 629 (10 November 2006)

Last Updated: 23 November 2006

[2006] HCATrans 629

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M103 of 2006

B e t w e e n -

TABAN WILLIAM GANY

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 NOVEMBER 2006, AT 11.34 AM

Copyright in the High Court of Australia

MR L.C. CARTER: May it please the Court, I appear for the applicant. (instructed by Matthew White & Associates)

MR P.A. COGHLAN, QC: If it please the Court, I appear with my learned friend, MR M.A. GAMBLE, for the respondent. (instructed by Solicitor for Public Prosecutions)

HAYNE J: Yes, Mr Carter.

MR CARTER: Thank you, your Honour. When the Court of Appeal allowed the Director’s appeal on 7 July this year they sent the applicant to prison for a minimum term of 21 months. He had been in the community for 13 months and had achieved extraordinary, if not complete, rehabilitation. The Court of Appeal withdrew the mercy legitimately extended to the applicant by the sentencing judge who, in the exercise of his discretion and in accordance with authority, had wholly suspended a sentence of three years for three years.

In my submission for the reasons set out in writing, the Court of Appeal was wrong in law and there has been a miscarriage of justice. Special leave should be granted, however, not only to remedy this miscarriage but because the application raises two questions of general and practical importance to the administration of criminal justice. The first of those is ground 1 of the draft notice at application book 118.

The question is do the principles spelt out in the judgments of this Court in Everett extend to requiring Courts of Criminal Appeal in assessing the Crown’s stance at plea to take account of the failure on the part of the Crown to provide any assistance as to the range of sentence. That was this case. In response to a plea for a wholly suspended sentence the Crown argued that immediate imprisonment was appropriate, but did not contend that a sentence of three years imprisonment, the maximum that can be suspended, pursuant to the Sentencing Act (Vic) would result in an inadequate sentence.

HAYNE J: I am sorry, can you put that again?

MR CARTER: The issue before the judge, your Honour, if I could distil it this way, was plea is for a wholly suspended sentence. The Crown submission is must go to prison.

HAYNE J: So the Crown is arguing for immediate incarceration?

MR CARTER: No doubt about that.

HAYNE J: Yes.

MR CARTER: Where the issue arises, your Honour, is the Crown did not go on to argue, and in any event, wholly suspended sentence inappropriate because it is limited to three years, as is often the case. In my submission, the Court of Appeal erred by permitting the Director to argue that three years was manifestly inadequate. The Director should have been confined to the very onerous argument that the decision to wholly suspend a sentence resulted in a manifestly inadequate sentence and thereby there would be consistency in what the Director had argued before the sentencing judge and the Court of Criminal Appeal.

The second question, your Honours, raised by both grounds 5 and 6 of the draft notice at application book 119 to 120 concerns the content of the principle of double jeopardy on resentencing. The question is – and your Honours have heard this question before. I do not understand it. It has not been adjudicated upon, yet. The question is do we have the right vehicle? The question comes down to this, does the double jeopardy principle require the imposition of a sentence somewhat less than would have been imposed at first instance, which is the approach at least in Victoria, or is it stronger than that? Is it a sentence towards the lower end of the range or even the least sentence? On this question there is a conflict of authority, your Honours, between intermediate courts rendering the question an appropriate one for the grant of special leave.

Coming back to the first question, it is common ground that the Crown at plea submitted immediate custody but went no further. The learned Director’s submission before the Court of Appeal was that the Crown are not obliged to. The sentencing judge imposed three years imprisonment wholly suspended. This, given all the matters in mitigation and the circumstances, including the seriousness of the offence, was a very significant term given that the maximum for each offence was five years.

Critically, his Honour only took this course, that is, did not imprison him, or more accurately return him to prison, because of the existence of what his Honour described as exceptional mitigating circumstances which in a nutshell included genuine remorse, guilty pleas, a period of pre-sentence detention, exemplary progress on an intensive course of rehabilitation and a life history as a Sudanese refugee calling for mercy.

In determining whether it was desirable to fully suspend the sentence his Honour acted in accordance with the principles distilled in Director of Public Prosecutions v Buhagiar & Heathcote which his Honour sets out at page 93 of the application book in his reasons for sentence. I do not need to read it all, your Honours, but it is dicta, including the dicta from Chief Justice King in Osenkowski as to the public interest in suspending sentences if there is a real chance on the material for reformation.

In the written submissions on behalf of the now applicant, which your Honours have behind tab 1, it was contended that by reason of the Crown’s submission at plea they ought not be permitted to argue that a sentence of less than three years was manifestly adequate. Reliance was placed on the judgments of this Court in Everett and also on the judgment of the Court of Appeal in Clarke, proposition [5].

HAYNE J: That is a proposition, is it not, that depends upon drawing a complete equation between suspended imprisonment and imprisonment. I know there is the statutory basis for at least a degree of equation, if that is a possible idea, but with the Crown contending for a radically different disposition, namely, immediate incarceration, why is it confined then by the limits of the other form of disposition that is in play?

MR CARTER: Yes. Your Honour’s question really brings us to the heart of the matter.

HAYNE J: Yes, I meant to.

MR CARTER: The submission is, your Honour, that given the rising number of Crown appeals, given the growth of interest of the Crown in appeals against sentence, that they have a fuller duty than simply saying the range is entirely a matter for the sentencing judge.

HAYNE J: If we are coming down to taws, Mr Carter, as we must, that is treating sentencing as a wholly adversarial process, whereas sentencing has perhaps that aspect. I understand the force of what you say, but it also has a vital public aspect and the Court of Appeal role on a Crown appeal is in part, at least, the maintenance of proper sentencing standards.

MR CARTER: Indeed, your Honour, but one of the matters that the Court of Appeal is bound on the authorities to examine is where did the contention that three years is so far outside of the range to shock the public conscience come from? Was it made below? The submission here is it was not and that the Crown really have a duty, if they wish to contend on a Crown appeal, to have given some assistance as to the range. There is a growing body of dicta to this effect. A case that I provided to the Court just this morning is the judgment of the Court of Appeal on 26 June in R v S, an extract only, your Honour. It is a judgment of Acting Chief Justice Maxwell, Justice of Appeal Neave and Acting Justice of Appeal Bongiorno.

HAYNE J: I am sorry, is that in your bundle?

MR CARTER: No, it was provided additionally, your Honour.

HAYNE J: You will have to read it to us, I think.

MR CARTER: It is just this sentence, your Honour, at [41]:

Subject to that qualification –

the qualification being that the submission should not represent that of a particular Crown officer –

properly-formulated and neutrally-expressed submissions by the Crown as to matters of sentencing are to be encouraged. They should include, where appropriate, submissions as to the applicable range outside which a sentence would constitute sentencing error. For counsel to indicate the limits of the sentencing range is conducive to consistency of sentencing - - -

HAYNE J: Who were the parties to this expression of view?

MR CARTER: Acting Chief Justice Maxwell, Justice of Appeal Neave and Acting Justice of Appeal Bongiorno.

HAYNE J: Obliging the Crown to proffer a range.

MR CARTER: I would not say that it is that strong. It says that it is to be encouraged, but here, your Honour, leave aside the general desirability of that – and there may well be pros and cons, here the question is both narrow and of general importance. It is narrow in that the question is when a contention has been made that a sentence be wholly suspended, and the Crown have not said, no, three years would not be enough, should the Crown be permitted in their appeal to argue that the judge got it all wrong by imposing a manifestly inadequate sentence of three years. In my submission, it is entirely consistent with the body of jurisprudence going back to Chief Justice King in Wilton and Tait and Bartley and Everett that that be the law, and that it be a matter that weighs heavily on the exercise of the discretion to the court to intervene.

An example of that recently – and I also provided this to the Court this morning – is in the matter of DPP v Page, and DPP v Lynch where the same situation occurred inasmuch as the Crown had said immediate custody was required but made no submission as to the range. His Honour Justice Eames whilst allowing the appeal - - -

HAYNE J: This notion of the Crown proffering a range simply leads to auctions, and auctions on sentencing proceedings are not of assistance to anyone, but there we are. I understand what is being said.

MR CARTER: Your Honour, for the purposes of this ground that I have taken you to, ground 1 of the draft notice, I do not need acceptance of a proposition like that. It is more confined. It is when a submission is made, and they are made every day in courts around Australia – well, those jurisdictions that will still have suspended sentences – it says that if the Crown later wish to appeal on the basis that the maximum could be suspended is inadequate, they have a duty to have pointed it out to the sentencing judge.

In my submission, the Court of Appeal dealt with this matter at paragraph 24 of the judgment erroneously in three respects. They mischaracterised the argument itself, they attributed to counsel the non-pursuit of the grant in the Court of Appeal - the transcript indicates, with respect, that that is simply not the case - and thirdly, it shows that the court is asking the wrong question, because in the final sentence of paragraph 24 at page 106 of the application book:

It is clear from the transcript of the plea and his Honour’s reasons for sentence, that both counsel for the respondent and the sentencing judge understood that the prosecution’s contention that there should be an immediate custodial sentence signified that a wholly suspended sentence was not an appropriate sentence.

Well, of course, it did. That was not the question. Now, your Honour, the second matter of general importance, as I say, does concern what happens on resentencing, and this is a matter that, in my submission, also bears on the discretion to intervene. The conflict that I refer to can be most simply demonstrated by first of all looking at the decision of the New South Wales Court of Criminal Appeal in R v King, behind tab 9, where her Honour Justice of Appeal McColl at page 433, paragraph 119, sets out the current governing principles in New South Wales by reference to the judgment of Chief Justice at Common Law Wood in Wall and your Honours will see at paragraph (e):

A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed . . . and will generally be towards the lower end of the available range –

and reference is made to his Honour Justice Kirby’s judgment in Dinsdale. Over the page, at paragraph 181 her Honour brings together some of the statements from New South Wales cases. Midway through paragraph 181:

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”: Dinsdale v The Queen per Kirby J; or the “minium sentence which should have been imposed at first instance” -

The conflict with Victoria is stark. If your Honours look at the two extracts behind tab 10, Director of Public Prosecutions v BAB in the judgment of his Honour Justice Callaway, paragraph 3:

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.

I will not take your Honours into the footnote, but authority is cited including R v Clarke [1996] 2 VR. In DPP v Lepoidevin, the next case behind tab 10, his Honour Acting Justice of Appeal Cummins refers with approval to what Justice Callaway had said in BAB – this is at paragraph 37 on page 8 continuing to page 9. The final section of that extract, that being the last bit of paragraph 37:

On a Director’s appeal there is good reason, as a matter of fairness, principle and policy, for adequate discount to be given for double jeopardy . . . On a Director’s appeal there is no reason, as a matter of fairness, principle or policy, to gravitate, on account of double jeopardy, towards “the lower end of the range.”

So there it is, your Honours, intermediate courts of criminal appeal – I am restricting myself to Victoria and New South Wales for the sake of the argument - expressing themselves in very different ways on a fundamental question, that is, what is the work to be done by double jeopardy on intervening and how does it impact on the exercise of the discretion to intervene in the first place.

Before I go on, I should say, this Court, of course, in Lowndes which is behind tab 6 approved of, in the judgment of the Full Bench at page 671, the principles in Allpass and Clarke which are to the same effect, the relevant principle in those cases speaking of somewhat less rather than the least or the bottom end of the range or towards the lower end of the range. That case, though, in my submission, it is fair to say concentrates on the
criteria for intervention and really the nature of what occurs on intervention is not an issue that has had the attention of this Court, certainly not focused on the conflict in approach.

The reason why, in my submission, this case is a suitable vehicle is that the double jeopardy principle must be most acute when a free person is sent to prison. That is this case. Contrary to the Director’s submission, there was absolutely no restraint shown by the Court of Appeal in sending a completely rehabilitated man with his life history to prison for 21 months with a non-parole period that could not be described as anything other than orthodox, and for those reasons, your Honours, it is my submission that the applicant should have the only avenue open to him extended.

HAYNE J: Yes, thank you, Mr Carter. We will not trouble you, Mr Coghlan.

In our opinion there is no reason to doubt the correctness of the orders made by the Court of Appeal in this matter. Accordingly no question of general principle would conveniently fall for consideration were special leave to appeal granted. Special leave is refused.

AT 11.52 AM THE MATTER WAS CONCLUDED