Hili v The Queen; Jones v The Queen [2010] HCATrans 194 (30 July 2010)

Last Updated: 4 August 2010

[2010] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S142 of 2010

B e t w e e n -

ANTHONY JOSEPH LUIS HILI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S143 of 2010

B e t w e e n -

GLYN MORGAN JONES

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 2010, AT 9.39 AM

Copyright in the High Court of Australia

__________________

MR. J.T. SVEHLA: Your Honours, I appear with my learned junior, MR R.J. WEBB, for the applicants. (instructed by Snelgroves)

MR P.W. NEIL, SC: May it please your Honours, I appear for the respondents. (instructed by Commonwealth Director of Public Prosecutions)

HEYDON J: Yes, Mr Neil. could you perhaps go first?

MR NEIL: Certainly, your Honours. The central thrust, as we understand it, of the applications is that there is an inconsistency in sentencing between intermediate appellate courts and that this is set to contravene Part 1B of the Crimes Act 1914. We have sought to identify in our written outlines, particularly in that concerning Mr Hili which commences in the application book at page 88, the reasons why that is not so and why we submit that, indeed, this matter has previously been canvassed by this Court and there has been a recognition that such differences, as exist, are the result of constitutional arrangements in that the State and Territory courts exercise federal criminal jurisdiction by operation of section 68(2) of the Judiciary Act in circumstances where, when they do so, the federal provisions do not control the entire field. There is a reserve left of State and Territory law which impacts upon sentencing in their jurisdictions.

We seek to illustrate that, your Honours, from page 91 at about line 30 under Part III. When your Honours see what is put there, we place some reliance upon a valuable paper of two senior officers of the Office of the Commonwealth Director of Public Prosecution Deputy Directors in Brisbane and Melbourne, Messrs Adsett and Pedley, and we have put their paper in the supplementary materials under tab 1. Now, it may be most efficient if I invite your Honours to have a quick look at that paper and seek to make a couple of primary points that emerge from it.

Your Honours will see that this was at the Australian National University at a sentencing conference conducted in February this year. The learned authors, on page 1 in the second paragraph, refer to a survey which they say:

reflects a significant degree of consistency in that relationship –

that is, the State and Territory offences for federal offenders –

for drug sentences across Australia. The survey also reveals a very similar pattern in non-parole periods relative to the head sentence as between drug, money laundering offences and people smuggling offences. In other offence types there is some variation of approach across the various jurisdictions. Nevertheless there is a reasonable level of consistency bearing in mind the approach reflected in the Judiciary Act –

and so on.

KIEFEL J: The fact that there is reasonable consistency may perhaps be because courts have recognised, as Justice Keane, as he then was, mentioned in Tran’s Case, that courts exercising federal jurisdiction should strive for consistency.

MR NEIL: That is so.

KIEFEL J: That is really the question here, is it not?

MR NEIL: Yes. Our submission, your Honour, is that the State and Territory appellate courts are very conscious of this point, and have done so, but there are differences that cannot be gainsaid, as we put in our written outline, and this is illustrated in particular in the case of Hargraves & Stoten, a sentence imposed by Justice Fryberg in the Queensland Supreme Court where his Honour discussed this very case in the Court of Criminal Appeal.

In New South Wales there is a statutory requirement for most offences for the 75 per cent non-parole period for State offences. In Queensland, as Justice Fryberg points out, it is rare for offenders, in fact, for State offences to serve more than one half of their head sentence. Just in contradistinction to what happened here before the learned sentencing judge, Judge Morgan, even though Justice Fryberg so found and even though he expressed different views from those that came from Justice Rothman in Hili and Jones, nevertheless, in a similar type of offence involving similar criminality he imposed a head sentence not very different from the ones here, six and half years compared to six years, and a non-parole period of a fraction under 60 per cent, whereas her Honour Judge Morgan came in at under 40 per cent.

He did that in the express context of saying that he recognised two things. One was that there were only a very minor number of federal offenders in Queensland who would serve more than federal offenders, more than 50 per cent of their sentence as a mandatory term of imprisonment, and he was conscious of the authority which suggests that there is a genuine sense of grievance in people who are in one prison system but are treated differently from the bulk when it comes to non-parole periods, but, nevertheless, he fixed about 60 per cent, not 50 per cent because of the seriousness of this particular type of criminality.

Your Honours, it was not on our list and I apologise for this, but might I kindly have your Honours’ leave to hand up an extract from Putland v The Queen in this context please, your Honours? In the Adsett and Pedley paper at page 6 there is a discussion, firstly, at the top of the page of Leeth and it goes on to discuss Putland. If I might provide copies – I have given them to my learned friends, your Honours – and take your Honours to a couple of passages which, we submit with the utmost respect, answer this conundrum and explain the reasons for it. If your Honours would kindly go in Putland to page 184, your Honours will see at line 20 a discussion of the very well known New South Wales case of El Karhani. Your Honours see there that the New South Wales:

Court of Criminal Appeal decided that the sentencing principles stated in Pt 1B were not comprehensive; they did not set out to cover the field. The Court observed that Pt 1B did not set out to implement a policy of full uniformity of treatment of federal offenders as between themselves; on the contrary, it failed to address that issue in a consistent and coherent fashion.

But our principal point is for constitutional reasons it is not possible to have complete consistency, only reasonable consistency. On page 185 under the heading “Discrimination”, at about point 7 there is the sentence in the joint reasons of your Honour Justice Heydon and Justice Gummow:

Section 68 applies State and Territory laws –

that is the Judiciary Act –

to important aspects of criminal proceedings in relation to federal offences. If State and Territory laws were all necessarily the same, then there would be little point in having State and Territory legislatures.

Finally, if I could take your Honours to a passage, also in the joint reasons of your Honour Justice Heydon and Justice Gummow, at page 195 under the heading “Unequal treatment?”. Perhaps I should advert to the first paragraph and invite your Honours to have a look at it, but, most relevantly, in the second paragraph:

However, in oral submissions the appellant disavowed any application to seek leave to re-open Leeth v The Commonwealth. That case is authority that, specific restrictions and implications arising from the federal structure apart, there is no implication to be drawn from the Constitution that federal laws must operate uniformly throughout the Commonwealth.

Your Honours went on to explain why. Now, our submission fundamentally is that these issues have been agitated and resolved in quite a clear way and we say that the courts have heeded not only that line of authority but also, coming from the Court’s decision in Farah Constructions, to the extent that is practicable to do so, Adsett and Pedley point that out. When your Honours go through from about page 15 – I am not wanting to burden your Honours with all these tables – but that is of some significance. “Relative Non Parole/Pre-release period of Federal Sentences”, the first dot point commences:

Not surprisingly the NSW pattern closely resembles the national pattern –

and so on. When one goes further across to page 17 the first dot point:

Consistently with the NSW pattern only a small percentage of head sentences had a non-parole/pre-release period of less than 50% of the head sentence.

In this paper the authors discuss every State and Territory of the Commonwealth as recently as February this year and they establish – and I may just remind your Honours that in Hargraves & Stoten Justice Fryberg cited this paper and he said that – I put the quote in the written outline, but to the effect that it affirmatively establishes, in effect, that there is practical consistency in the sentencing of federal offenders, at least for offences in this degree of seriousness, and even well below across the Commonwealth.

We have also cited under tab 2 a paper of Ms Kukulies-Smith from the same sentencing conference. She is a lecturer in law at the Australian National University, and for convenience we cited a passage from that paper at page 93 of the joint application book in paragraph 16 at about line 33 or 34:

“Full inter-jurisdictional equality in the sentencing of Federal offenders cannot currently be achieved because all Federal offenders are not currently subject to the same laws.”

In our further written outline we point out that is not something that can change other than by a change of constitutional arrangements between the Commonwealth and the States. We further point out, as Adsett and Pedley noted, across the whole of Australia only three per cent, or a fraction less, of persons incarcerated are incarcerated for federal offences and, notwithstanding that very low proportion, the research that has been done – and our friends in their reply were a little bit critical of it and we submit this was not only a very well thought out statistical paper, but with the utmost respect to the authors, we submit, it correctly cites the law – the research that has been done establishes, in fact, practical consistency.

Now, the fundamental point our learned friends point to is that in the Queensland Court of Appeal, in a case of Ruha, they disapproved of the earlier case of CAK & CAL, but when one looks at the discussion, it said that - - -

KIEFEL J: This is in relation to the application for the Norm?

MR NEIL: The Norm. My friends, with the utmost respect, and I appreciate why they have Norm with a capital N as if it is some empirical entity up there; it is not like that, your Honour. Nothing that the Court of Criminal Appeal said and, in particular, Justice Rothman said, was inconsistent with the proper approach. What our learned friends, with respect, have sought in their written outline to persuade your Honours is that the New South Wales Court of Criminal Appeal in this particular matter have adopted a rigid and unmoving position.

When Justice Rothman himself, I think at paragraph 44, in citing firstly Bernier – and I should get the correct passage for your Honours if your Honours would pardon me a brief moment. The judgment starts in the joint application book at page 49. It is page 61 of the joint application book in paragraph 33 at about line 50. Justice Rothman firstly refers to Bernier and then he goes to Viana and cites a passage there:

“The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 ACrimR 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence.

Now, the next sentence is telling, with the utmost respect, your Honours –

The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 per cent. That is not to say that higher percentages cannot stand.”

It obviously follows, that is not to say that lower percentages cannot stand. So this is not a statement of dogmatic rigidity. This is merely indicating that there is a broad general range and that there is plenty of discretion for a sentencing judge, as both the learned sentencing judge, Judge Morgan, and the CCA itself here did. They did not apply 60 to 66 per cent when they re-sentenced. They applied 50 per cent as the mandatory term of imprisonment for the reasons that Justice Morgan had identified, being the particularly strong subjective features of the applicants.

They did that, your Honours, against a context where they were justifiably – and I was there all the way through – a little critical of the Crown for conceding 50 per cent discount for assistance and plea. They said it should have only been 40 per cent. They did not interfere because the Crown, as a matter of fairness, did not invite them to; did not think it was fair to the applicants to do that.

So what happened, your Honours, below, that is, before Judge Morgan, after every conceivable possible benefit was given to the applicants, which the Crown makes no complaint about, whatever, they were entitled to it, nevertheless, her Honour comes in with a notional head sentence of 18 months and fixes a recognisance release period of seven months, 39 per cent, for crimes of this magnitude where not much later – I mean, there is no case, I can assure your Honours – we gave Justice Morgan Wheatley, we gave her all the cases that relate – this is a fairly new provision 134 and 135 of the Code.

There is not a great deal of authority, but no one – for Wheatley it was, from recollection, three years and 15 months or something of that sort. He equally ranked on subjective features full co-operation, full contrition, all the appropriate things, full restitution. It was put to Judge Morgan, look they have paid all the tax back. Well, there is an important aspect of that. As Justice Fryberg pointed out in Hargraves & Stoten, you should not take into account payment of tax that you owe and interest on it. The most that can be said is that if there is a penalty component, as there has been in all of these cases, that is a factor to weigh in the balance, not a very big one.

So the Court of Criminal Appeal, in our respectful submission, had no practical alternative but to find that the head sentence and the recognisance release period imposed by her Honour Judge Morgan could not be anything but manifestly inadequate. They then had an obligation themselves to re-sentence. They did so within the range. We have not seen any submission, as we read it, from our learned colleagues that the sentences imposed by the Court of Criminal Appeal were excessive. Our colleagues have not pointed to any other case where there has been any sentence as low, in comparable matters, reasonably comparable, as was applied by her Honour Judge Morgan. There have not been any.

Coming back to the core point about this question of the Norm, our friends seek to elevate the Norm to a status not reflected at page 61 either in Bernier or in El Karhani or in Viana and the way Justice Rothman went on to explain how that operates – and he discussed the Queensland case at page 62 of CAK and CAL, he discussed Robertson, he discussed the Queensland Court of Appeal in Ruha – he expressed a view which, we submit, is correct that although the words may be different, the meaning and import and the effect of them is the same. Now, Justice Fryberg, when he sentenced Hargraves & Stoten at first instance – and I perhaps should let your Honours know there has been an appeal in that matter heard by the Queensland Court of Appeal.

KIEFEL J: Still reserved.

MR NEIL: It is reserved both conviction and sentence, so we do not have that assistance. But what appears to the respondent to be the position here is that the applicants have sought to place an interpretation on what Justice Rothman said, which it does not reasonably bear in the whole of the context, and pin it into a corner so as to be able to say, look, there is this terrible clash between Queensland and New South Wales, when in reality it just does not exist. Your Honours, my learned friends were kind enough to give us yesterday a submission in reply and I just want to draw attention, if I may, to one matter.

They put a chart at the end of it, Criminal Code Act 1995 (Cth), and the chart does not say a great deal but it is a chart of the Judicial Commission of New South Wales. There are other statistics from the Commonwealth sentencing database. This chart only goes to 2008, so it does not take into account all the relevant cases, with the utmost respect. It only deals with the offence under section 134.2(1) of the Criminal Code, no other offences. It sets out only the bottom of the range. It does not differentiate by fraud amounts. There is no indication in the chart of what the head sentences or the ratios of mandatory imprisonment were.

We merely submit it is of no practical assistance, especially when compared with the quite detailed statistical analysis that Adsett and Pedley have carried out. We say that when your Honours glance further at it, what Ms Kukulies-Smith says is spot on. Your Honours, we have sought to summarise all of these points as comprehensively as we can in our written

outline and unless there are other matters that I could particularly assist with, those would be the respondent’s submissions.

HEYDON J: Thank you, Mr Neil. We need not trouble you, Mr Svehla. What we propose to do is refer this matter – not to either grant special leave or refuse it, but to refer the matter into a Full Court for further consideration so that the application for special leave to appeal can be argued as on an appeal. Do you follow?

MR NEIL: Yes, indeed, your Honour.

HEYDON J: Will one day be sufficient for the argument?

MR NEIL: I would have thought so, your Honour.

MR SVEHLA: Yes, your Honour.

HEYDON J: Yes, very well. That will be the order of the Court, thank you.

MR SVEHLA: Your Honours will be aware that the entire application is subject to an application for expedition.

HEYDON J: Everything is expedited now.

MR SVEHLA: It is just that if the sentence of the District Court judge, Judge Morgan, is reinstated, the applicants would have been released in June. I just have to raise that in terms of the territory we are in, your Honour.

HEYDON J: What you have just submitted will be drawn to the attention of those who - - -

MR SVEHLA: Yes, as your Honour pleases. I just wished to raise that to the Court’s attention.

HEYDON J: Thank you, Mr Svehla.

AT 10.00 AM THE MATTER WAS CONCLUDED