MacNeil-Brown v The Queen [2008] HCATrans 411 (5 December 2008)

Last Updated: 11 December 2008

[2008] HCATrans 411

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M77 of 2008

B e t w e e n -

HEATHER MACNEIL-BROWN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 DECEMBER 2008, AT 12.42 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC: May it please the Court, I appear in this matter with my learned friend, MR D.A. DANN, for the applicant. (instructed by Victoria Legal Aid (Criminal Law Section))

MR J.W. RAPKE, Q.C: If the Court pleases, I appear with my learned friend, MR M.A. GAMBLE, S.C, for the respondent. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr Holdenson.

MR HOLDENSON: This application concerns the question as to whether a sentencing judge may require the prosecutor to identify the appropriate range of sentences for the case at hand outside which would constitute sentencing error. The type of response which would therefore be made by a prosecutor in such an instance is that set out in the application book at page 110 where your Honours will see within the joint judgment below, about halfway down the page in the indented passage, what the majority see as the appropriate response. It would be, your Honour:

In the circumstances of this case, the head sentence to be imposed on this defendant would be in the range –

of X years to Y -

years, and the non-parole period should be in the range –

of A years to B years.

HAYNE J: Now, assume for the purposes of debate immediately that that were to tender a question that extended beyond particular practice in this State. What exact order would be sought, having regard to the fact that there is, I think, is there not, a majority within the court which was of opinion that no different sentence should be passed?

MR HOLDENSON: In my submission, that is not correct. The majority did not determine that, but the two dissenting judges appeared to proceed on the basis that no different sentence ought to be passed. But there is a short answer to it and it is this, your Honour. Could I take your Honours to page 137 of the application book where your Honours will see conveniently set out in the joint judgment the list of counts. This presentment was drafted in the form of five counts, each count being referable to a different year. So count 1 was referable to the year 2001 and the offending spanned 10 months of that year; count 2, 10 months of the next year; count 3, 11 months; count 4, 11 months.

Although the amount of money dishonestly obtained is only one of the matters relevant to sentence on any particular count, in circumstances where each and every matter relevant to each and every offence in this case was equally applicable, the imposition of an identical sentence on each count where the amount of money markedly varies evidences error. If I could just take your Honours to counts 1 and 2? Count 1 was referable to $100,000 over a 10-month period; count 2 almost $400,000 over a 10-month period, and so on. Yet the identical sentence of five years imprisonment was imposed on each of the five counts.

The answer of the majority is to be found at page 147 of the application book where your Honours will see paragraph 100 in the middle of the page and the answer there provided by the majority was that only very modest orders for cumulation were made. With respect, that paragraph is contrary to what this Court held as represented in the joint judgment of Justice McHugh, your Honour Justice Hayne and Justice Callinan in Pearce v The Queen (1998) 194 CLR 610 where at paragraph 45, and I quote, your Honours said:

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. 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.

Now that is not what occurred here, with respect.

HAYNE J: Be it so, assume you can thus demonstrate error, what would we do in the face of paragraph 120 and paragraph 148 of the reasons of the Court of Appeal? You have four members of the court expressing the view, it seems to me, that their Honours were not persuaded that any different sentence should have been imposed. What order would we make were we to grant leave and what order would you seek?

MR HOLDENSON: I hesitate to interrupt, but paragraph 120 is Piggott not MacNeil-Brown. Piggott succeeded below and got the same sentence. Could I take your Honours back to paragraph 114? That is the resentencing of Piggott. MacNeil-Brown had already lost many pages earlier. There is no majority that says MacNeil-Brown - no different sentence could or should be imposed.

HAYNE J: Right.

MR HOLDENSON: So if this Court accedes to this application on the appeal at the end of the day it has remitted, fresh exercise of discretion and there would be no constraint to the effect that there has been a finding or a determination by any appellate court to the effect that no different or lesser sentence be imposed.

HAYNE J: Well then, is this question a question of distinctly Victorian practice? What is the position elsewhere in the Commonwealth about the prosecution being required to make submissions?

MR HOLDENSON: We are told in the joint judgment that it seems to occur within Queensland and as I have researched the situation in Queensland there is no statutory foundation for that. It is not the law in some States, as in there is no authority and no evidence to suggest that it occurs. It can occur in New South Wales in that it fits within DPP guidelines, however, the only – as I recall – case that could be cited by the majority was a single judge instance in Weininger which found its way all the way up to the High Court. In that regard I am not sure of the precise facts of Weininger before the learned sentencing judge – I think it was her Honour Justice Simpson.

But of course what makes this case so different – and this is a point, with respect, which escaped the attention of a majority – is that this is not a case where a prosecutor proffered an appropriate range as part of some agreement with the defence that that is what would be done and it is certainly not a situation where the prosecutor proffered the range in response to something done by the defence barrister. That is after all the precise factual situation of Casey and Wells, the so-called starting point for all of this because on the facts in Casey and Wells, at the point in time when the sentencing judge expressed – my expression – “frustration” at his lack of knowledge as to the harmful nature of the drug concerned, the defence barrister intervened and said, “Your Honour, the appropriate sentence in this case is three years imprisonment and your Honour ought fix a non-parole period of 18 months”.

Now, if the defence barrister leads, that is different. If there is an agreement at the Bar table, some sort of plea bargaining agreement perhaps being put into effect, that is different. But to require the prosecutor and, indeed, in the very manner in which this judge did express that requirement - and in that regard could I just take your Honours to two passages within the application book: first, at page 39 where at line 16 reference is made to the case of Zest, his Honour says at line 17:

the Crown should make submissions as to the appropriate range of sentence beyond which would constitute sentencing error?

So his Honour ties in the question to error. He then, after some persistence and insistence, gets to the stage at page 49 of the application book at line 19, when addressing the prosecutor, the prosecutor having thus far been steadfast in his determination not to enter into this discussion, his Honour says at line 20:

in my view where we have a situation where the Director of Public Prosecutions appeals much more frequently than any of his predecessors, in my experience, and no doubt puts submissions to the Court of Appeal that judges of this court have erred in imposing manifestly inadequate sentences, surely he should be in a position to put, through his alter ego, in the person of your good self –

Mr Hannan –

what is an appropriate range of sentence and what would be a sentencing error by way of departure from that ambit.

We then have the prosecutor coming back again saying this is not appropriate, but then responding at page 41 at line – I should first of all go to page 52 at line 26:

anything less than a three year period would raise concerns and would potentially be out of range –

That is the non-parole period. Then says at page 54 anything less than double that is potentially out of range for the head sentence. There is an implicit threat within all of this. There must therefore be, in my submission, at the end of the day some disquiet about the prosecutor – and he still has not expressed a range; he has only given the lower end points so he did not even respond to the question, but with the stick of anything else is of concern it would raise concerns all referable to Crown appeals against sentence.

KIEFEL J: Do I take it from what you are saying that it is the way in which the question was put by the sentencing judge, rather than having a difficulty with information being provided as to comparable sentences? I would just like to know whether it is a question of degree?

MR HOLDENSON: I can answer it in this way. Your Honours will see at pages 175 through to 177 of the application book we set out six errors with this process. Those six errors - the first one is on the first line of 175 and your Honours will see the bold lettering through pages 176 and 177 - with what has occurred do not depend upon the form of the question put by the sentencing judge, nor on the form of the answer. But No 7, which is on page 178, is one referable to the language used or the manner of expression in this case. The determination of the learned trial judge expressly linked to his concern at the frequency of Crown appeals, there is at least in our submission the perception that this sentencing judge has imposed sentence in order to impede or frustrate or prevent a Crown appeal against sentence.

Now, that is referable to the specific facts of this case. But taking it away from the language used by the participants in this plea there are nevertheless, in our submission, other adverse perceptions. Let me put it this way. The sentencing discretion is exercised in the public interest. This Court made that clear in Malvaso. It necessarily follows, therefore, that public confidence in the administration of justice must not be undermined.

KIEFEL J: Would it be undermined if the judge was not well informed?

MR HOLDENSON: If the judge was?

KIEFEL J: Not well informed. Take the case of a judge sentencing in relation to, say, a fairly – or from the judge’s perspective – a relatively unusual or an offence which does not come along very often.

MR HOLDENSON: Yes, well, the first response would be that is not this case.

KIEFEL J: But as a matter of principle why cannot a judge be informed as to sentences which have been handed down? It does not have to be – I am not saying expressed in a range of point to point, but just testing your argument, why cannot a judge be informed of sentences comparable in both the degree of the offence and other factors which have been handed down and then left for the judge to assess which is the most - - -

MR HOLDENSON: No issue with like cases being proffered. No issue with reference to statistics, there is no issue with that. It is the descending into the range.

HAYNE J: Well, this then directs specific attention to your draft notice of appeal at 168 where two grounds are advanced. The real difficulty in the grounds which needs explication is in line 2 of ground (i), what is meant by “as a result of” and in ground (ii) why is it vitiated? What exactly is the proposition that you seek to advance in this Court when you say that the judge gets it wrong because counsel has done something?

MR HOLDENSON: This is the sort of point that was made in the joint judgment in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, the guidelines case, and we have provided a copy of that. If we could take your Honours to a passage at page 608, paragraph 65 in the joint judgment of Justice Gaudron, Justice Gummow and your Honour Justice Hayne. Before I take your Honours to paragraph 65, however, it is to be kept in mind, in my submission, that the manner in which the judge imposes sentence is one of instinctive synthesis. Findings get made. Consideration is given to sentencing purposes and their weighting. Paragraph 65:

To focus on the result of the sentencing task –

That could be reformulated as, “To focus on the end result of the sentencing task” which is what we are talking about when ranges are proffered –

to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice.

The last sentence within that paragraph:

Publishing a table of predicted or intended outcomes –

which we would reword to say, “proffering a range of possible outcomes/appropriate sentence” –

masks the task of identifying what are relevant differences.

To focus upon the end result of the exercise of the sentencing discretion rather than those matters which are to be synthesised by the sentencing judge puts at risk that synthesis and proffering a range of appropriate outcomes masks the task of identifying what is relevant and why and how it is relevant.

Now, going back a step – and this is perhaps a better answer to the question asked of me by your Honour Justice Kiefel – for the barrister to provide an answer by way of “This is the range”, the barrister must first of all work out all the findings of fact to be made, then having worked out the findings, weight the different purposes as his Honour will weight them. That is not easy because often – as in this particular case – those purposes can be in conflict – and then work out the respective weights and then provide the answer.

KIEFEL J: But in referring you earlier to the process of comparable sentences, I was going to go on to suggest to you that the same process is undertaken. You might not be saying in words, “Here is the range of sentences.” By producing those sentences which might move from one point to another a similar process is undertaken.

MR HOLDENSON: In my submission, no.

KIEFEL J: In the end what you are talking about is a sentencing judge who appears to – on your theory would have no ability to set aside a range that seemed inappropriate.

MR HOLDENSON: It puts at risk of impairing the discretion in no different manner from the proffering of the sentencing guidelines in Wong. This Court had no hesitation in dealing with that case as it did and set aside the exercise of discretion. It is looking at the wrong thing at the wrong time. But if we just work by reference to the next step of perception there can be a real problem if, for example, in a given case it turns out that the prosecutor’s proffered range is identical to the defence barrister’s proffered range. What happens when his Honour then imposes sentence in accordance with that which is submitted, decides that they were right? It can be well and truly a perception in some quarters that the sentencing judge has participated in some sort of plea bargaining exercise. He has become or she has become a participant.

KIEFEL J: I take it that sentencing judges in Victoria give remarks on sentence, do they?

MR HOLDENSON: Yes, and indeed they are set out in the application book here and they are fairly detailed. Moving on, the Crown submission may be such as to create expectations within certain quarters which, when it comes time for his Honour to impose sentence and does impose sentence the expectations are not met, and indeed are comprehensively dashed. In these situations there can well be a perception which undermines the administration of criminal justice and undermines the proposition that the exercise of the sentencing discretion is one of public interest. I see that I have the red light.

HAYNE J: Yes thank you, Mr Holdenson. Yes, Mr Rapke.

MR RAPKE: If the Court pleases, the issue that this application raises is one of importance, not only for Victoria, but the administration of justice throughout Australia. The Court of Appeal in this - - -

HAYNE J: You support the grant of leave, do you?

MR RAPKE: Yes. The Court of Appeal in this judgment looked at and noted it would seem what happened in other States and concluded that the path along which it was embarking was implicitly endorsed as a process in some of the other jurisdictions in Australia.

HAYNE J: When you say that you support the grant of leave would you oppose the making of the orders which are sought?

MR RAPKE: No, your Honour.

HAYNE J: That is, you say, do you, that what should happen - what is it you say would happen if we were to grant leave?

MR RAPKE: It could be ultimately successful.

HAYNE J: Well, what I want to know is what your attitude – if leave were to be granted – would be to the disposition of the appeal in the particular matter?

MR RAPKE: Well, in my submission, what should then happen is the matter should be remitted to the intermediate court for consideration in accordance with the High Court’s decision. That would involve considering whether or not the discretion of the learned sentencing judge may have miscarried, by reason of the process by which a sentence was determined. In this case my learned friend touched upon the question of perceptions and perceptions in criminal law are extremely important.

What you had happen here was a judge pressed a reluctant prosecutor to embark upon a path which he did not want to go down. The judge relied upon his interpretation of the R v S . We would say that it was an erroneous interpretation of that decision to force a prosecutor to give a range of sentence when, as we know, a range was not ultimately given, but an indication of six years with a minimum of three years was given and then the sentence imposed was six years with four years.

KIEFEL J: The Court of Appeal here has considered sentence for itself.

MR RAPKE: That is so, your Honour, but the process is what we are concerned about here, the process by which that - - -

KIEFEL J: But you are happy with an outcome whereby it goes back to the court to reconsider the sentence that it has already considered?

MR RAPKE: That is so, your Honour, because considered in the light of their determination that there was nothing in the process - - -

KIEFEL J: But it is an objective matter, is it not? It is not whether the trial judge was – they have already reconsidered it on their own account. It will not matter whether or not the trial judge was influenced in one way or another.

HAYNE J: We sit to hear appeal that is against orders, not against reasons. Reasons may reveal why the orders should be set aside, but we are concerned and concerned only ultimately with appeals against orders.

MR RAPKE: But if the orders, your Honour, are arrived at by a process which gives rise to a question about or concerns as to whether there may be a miscarriage in the process, then, in our submission, it is sufficiently important to grant leave and allow that matter to be examined fully.

KIEFEL J: Are you conceding that the Court of Appeal’s consideration of sentence was erroneous?

MR RAPKE: Yes, your Honour.

KIEFEL J: On what basis?

MR RAPKE: On the basis that it gave insufficient consideration to whether or not the discretion may have miscarried. We never asserted it had.

KIEFEL J: How would that have been relevant to the Court of Appeal’s reasoning on sentence itself?

MR RAPKE: That would be open the question of the discretion and be reconsidered. As my learned friend put, there is at least an argument which I am not able to say is unarguable that the imposition of the same sentence on five counts where there are different periods and different amounts may require different sentences on those counts. I do not concede that at the end of the day that it would necessarily have made a huge difference but it is not an unarguable point.

What the Court of Appeal has done here is sanction a process which I know that your Honour Justice Hayne has in Gany deprecated as being akin to an auction and his Honour the President of the Court of Appeal, Justice Winneke in Bulfin referred to as akin to a bidding process. Perceptions at this stage of the criminal process, the sentencing stage, are very, very important. What happens, as my learned friend says, if a sentence is arrived at which is either the same as the proffered ranges, what happens if the judge, as in fact has happened since this case has been decided, goes in excess of the range indicated by the Crown? What does that do to the administration of justice? What position does that put the Crown in in relation - - -

HAYNE J: It demonstrates that responsibility for sentencing rests where it does, namely, with the judges. It does not rest with counsel. It does not rest with counsel for the prosecution any more than it rests with counsel for the defendant.

MR RAPKE: We agree with that and that is why we say that the drawing of counsel into - - -

HAYNE J: But therefore the fact that submissions are made by counsel, even insisted upon by the judge, the responsibility stops with the judge, nowhere else.

MR RAPKE: That is so, your Honour, but where we also have to be concerned, in my submission, is the appearance, the process, the perception of what is taking place in the court. The Crown has always said in all cases, and certainly in this case, it was said, we are obliged to give maximum assistance to the court. Now, what that should be interpreted as meaning is taking the courts to all the relevant authorities, comparable cases if there are cases which are comparable, sentencing statistics if they are available from the sentencing advisory council or the judicial college, by stopping short of, in effect, doing the judge’s job and synthesising those various components into an actual range of sentences.

Once that occurs it has the potential to interfere with the instinctive synthesis which is so important in a sentencing process. It cannot be at the end of day we say, well, it rests with the judge, because if the process by which that end result is reached is one which may have or is perceived to have interfered with that instinctive synthesis, then the process itself is flawed.

HAYNE J: Is it consistent with what has been said by the Court of Appeal in this case, the prosecutor at sentencing hearing to make submissions to the sentencing judge about the facts which the prosecutor contends should be made relevant to sentence, to refer to cases allegedly comparable, to refer to the sentencing statistics and to stop there?

MR RAPKE: Yes, that is the responsibility of counsel now.

HAYNE J: And is that consistent with what the Court of Appeal has said?

MR RAPKE: No, because the Court of Appeal has gone further and has said you have to do more than that.

HAYNE J: No, the Court of Appeal has said that an appeal should not be allowed on account of a prosecutor acceding to the judge’s insistence.

MR RAPKE: That is so, yes. That was the end result of MacNeil-Brown’s appeal. But the problem with the ranges, of course, is that that obligation placed upon the Crown Prosecutor by this decision is to formulate a range, presumably for the assistance of the judge, without being in full possession of all the critical findings of fact upon which a range would normally be determined by a judge. The prosecutor would not know when he formulates the range.

KIEFEL J: On your theory it would not be problematical if a judge had come to a point of view about sentence and then asked for the range so that the judge could compare the range with the synthesised outcome that the judge had already reached?

MR RAPKE: In other words, the judge indicates, “This is my tentative view. What do you want? Do you want to dissuade me from that?” No, well, there would be no problem with that as a process and, indeed, the only time that anything akin to this problem which we are now - - -

KIEFEL J: So it is not the information that concerns you? It is the way the question is put?

MR RAPKE: The question is part of it, but it is what the question is asking. The question really is not, with respect to your Honour – the question is just the starting point. It is what the question is asking the participants in the process to do. The only time that anything like this issue has come before the High Court was in Everett’s Case which is that Tasmanian case where the Crown had said nothing when an indication had been given that a non-custodial sentence was going to - - -

HAYNE J: That is [1994] HCA 49; 181 CLR 295 and it concerned whether leave to appeal should be given to the Crown to appeal against sentence and a ground for refusal of leave was that the Crown had stood silent.

MR RAPKE: Yes, but the Court did not say that it was incumbent upon the Crown to do anything in that situation to indicate that the suggested or tentative outcome, or the tentative sentence, was inappropriate. The Court did not go on and say it was incumbent upon the Crown to give a range or more indication other than the inappropriateness of the sentence. It is very interesting, if I may put to this to your Honours, that in the judgment of Justice McHugh in Everett his Honour concerned himself with the question of the importance of consistency and uniformity in sentencing which, as your Honours know, was one of the foundations upon which the majority in MacNeil-Brown rested itself of the extraction of the principle that we should give sentencing ranges.

His Honour, in dealing with the concept of uniformity in sentencing, did not go on to say that uniformity required the Crown to do anything more than indicate the inappropriateness of a particular sentence which may have been indicated. So we have a monumental leap from the Crown assisting by giving indications of what sentence might be appropriate or inappropriate, which – the Crown has always done that and the Crown has
always understood its obligations from Casey and Wells and all those other cases which talk about range of sentences which has been conflated by the Court of Appeal to now sentencing range. We have always understood that obligation.

Now, the obligations that are stressed upon the Crown is to synthesise all the factors which a sentencing judge would normally take into account but which the Crown does not have access to into actual figures. We say that is wrong. We say it is dangerous. We say it is an unwelcome, unnecessary development in the law. We say there is no provenance for this decision. There is nothing in Tait and Bartley. There is nothing in Casey and Wells and nothing in any other decisions which preceded this which would justify this leap that the Court of Appeal has made in this case. The downside risks for the administration of justice are huge because it turns the sentencing hearing into what, as I have already indicated, has sometimes been referred to as a bidding process or an auction.

Beyond that, your Honours, we are content to support our learned friend’s position on this and do not oppose the application. They are our submissions.

HAYNE J: Well, you have had your opponent say he supports you, Mr Holdenson. How can you now reply to the argument in your favour?

MR HOLDENSON: As your Honour knows, I always have something to say, but I think I will - - -

HAYNE J: Yes, I thought you might, so what do you have to say, Mr Holdenson?

MR HOLDENSON: Do your Honours wish to hear further from the - - -

HAYNE J: No, it is not a case of what I wish to hear. What do you want to say?

MR HOLDENSON: Could I take your Honours back to the facts of this case. When the question was asked by the learned sentencing judge of the prosecutor, several matters, when regard is had to what was put on the plea, required resolution by the learned sentencing judge before he came to impose sentence. There was first what weight was to be given to the applicant’s plea of guilty where, on the one hand, it was a good plea to be received by the Crown and save much court time, utilitarian value, but it was a very strong Crown case; secondly, whether the learned sentencing judge accepted the evidentiary material concerning the remorse of the applicant; thirdly, it was necessary for his Honour to make a finding as to the magnitude of the applicant’s moral culpability. On the one hand, the offending constituted a gross breach of trust, but on the other hand, she had offended in order to feed her untreated gambling addiction which was the subject of the psychological material.

There was the question of what weight was to be given to the sentencing objective of general deterrence in circumstances where it was not clear whether or not his Honour would accept any or all of the material presented by the psychologist. There was then the question of what weight was to be given to the sentencing principle of specific deterrents. On the one hand, the applicant had a major prior conviction, but on the other hand, depending upon whether or not there was accepted the psychological material, she had offended in circumstances which might not arise again by reason of the untreated gambling addiction.

So for the prosecutor to be required to answer the learned sentencing judge’s question, the prosecutor himself had to resolve each and all of those matters and then himself synthesise those matters to the relevant sentencing purposes and then weight them and then provide an answer. In circumstances, however, where it is trite that different judicial officers will respond differently to particular features of the evidence bearing upon those sorts of matters and different judicial officers will then weight those matters differently and different judicial officers will then give different weights to the various and, in this case, conflicting purposes of punishment, it is submitted that for a sentencing judge to require a prosecutor to provide the answer that he required is such as to place an intolerable burden on the prosecutor who will be wholly ignorant of the learned sentencing judge’s determinations and synthesis. To put it bluntly, there is a real risk that the prosecutor will get it wrong and there is therefore a consequential risk that the learned sentencing judge will be led into error. But that is only the prosecutor’s side of it.

There is also the defence barrister. What does the defence barrister do with this when the prosecutor responds? As a matter of natural justice of course he is entitled to respond. What an awkward position. The answer is always only ever going to be a lesser figure unless there is some deal done. How does the defence barrister respond anyway? Is this something upon which instructions are obtained? Is it a situation where barristers are bound by what their clients say?

The proffering of an answer, if the defence barrister is honest, cuts across what it was said by his Honour Justice Menzies in Pemble, defence barristers cannot concede matters of law to the detriment of their client. None of this was, in our respectful submission, considered in determining that this is what can happen and prosecutors can be required to answer these questions.

Now, what we seek at the end of the day is for this Court to hold that the discretion miscarried. If the discretion is vitiated and set aside, then the sentencing court will exercise the sentencing discretion afresh. In that regard, there is nothing standing in the way of the applicant, who would then be an appellant, nothing standing in her way by way of any holding of any court to the effect that no lesser sentence ought be imposed.

It will be exercised afresh and, in accordance with those passages to which I referred in my submissions concerning different judicial officers, this applicant could well get a rather different result at the end of the day, or at least one which is one in accordance with law which, in my submission, is the very basis upon which this Court remitted the matter in Pearce back to the New South Wales Court of Criminal Appeal. If the Court pleases.

HAYNE J: Yes. The Court will adjourn to consider the course we will take in this matter.

AT 1.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.31 PM:

HAYNE J: The application for special leave in this matter proceeds on a misunderstanding of the task of the sentencing judge and the role of the submissions of counsel at a sentencing hearing. The submissions of counsel are a necessary and important part of the process of sentencing but do not determine the issue of what sentence should be passed. The Court of Appeal’s reasons and orders in the present case necessarily focused upon the orders and reasons of the sentencing judge.

We are not persuaded that it is in the interests of justice generally or of this particular case that there be a grant of special leave to appeal. Special leave is accordingly refused.

AT 1.32 PM THE MATTER WAS CONCLUDED