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High Court of Australia Transcripts |
Last Updated: 26 June 2013
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M29 of 2013
B e t w e e n -
GEORGE ELIAS
Appellant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
Office of the Registry
Melbourne No M25 of 2013
B e t w e e n -
CHAFIC ISSA
Appellant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
FRENCH CJ
HAYNE J
KIEFEL J
BELL
J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 30 MAY 2013, AT 10.01 AM
Copyright in the High Court of Australia
____________________
MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR D.D. GURVICH, for the appellant Elias. (instructed by Emma Turnbull Criminal Law)
MR L.C. CARTER: May it please the Court, I appear for the appellant Issa. (instructed by C. Marshall & Associates)
MR G.J.C. SILBERT, SC: May it please the Court, I appear for the first respondent with my learned friend, MR B.L. SONNET, in each case. (instructed by Solicitor for Public Prosecutions)
FRENCH CJ: Thank you. Yes, Mr Tehan.
MR TEHAN: If the Court pleases, at stake in this appeal is a significant common law principle of sentencing. That principle was described by President Winneke in R v Liang and Li (1995) 82 A Crim R 39 at 44 in the following terms:
although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is nonetheless relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.
The Court of Appeal upheld that principle, appeal book 1132 to 1139. Our friends contend that in doing so, the Court of Appeal were wrong, and therefore we move immediately to an examination of what are the underlying rationales for what has become known as the Liang and Li principle.
HAYNE J: Now, can I just understand, is this a principle that you say works both ways? So if the sentencing judge forms the view that there were circumstances of aggravation of an offence not charged in its aggravated form, the judge may take that to account?
MR TEHAN: No, your Honour.
HAYNE J: That would be contrary to De Simoni, would it not?
MR TEHAN: Yes, and it would be contrary to the common law principle of parsimony encapsulated in section 5(2) and (3) of the Sentencing Act, which in effect provides that a sentencing court should impose the least severe sentence possible. Could I go to the underlying rationales, and take the Court to R v McEachran [2006] VSCA 290; (2006) 15 VR 615. At paragraph 55 at page 637, his Honour Justice Redlich said of the Liang and Li principle:
The principle with which we are concerned is part of a broader principle requiring fairness in the sentencing process. Consistency in sentencing is a mechanism by which fairness in the sentencing process is to be achieved. It requires that the court should strive to impose similar punishment for similar offences committed by offenders in similar circumstances. Conversely, disparity in sentencing can only be justified if there are acceptable and convincing grounds for differentiating between offences or offenders. Unfairness will arise where there is an inconsistent application of legal principles.
And at 56:
Plainly, where different charges may appropriately be laid for the same offending conduct, reference to the statutory maximum of the lesser punitive regime will assist the sentencing court in achieving consistency, and hence fairness, in the sentencing process.
Now, could we also take the Court whilst dealing with this aspect of underlying principle to what the court said – when I say “what the court”, what I mean is what the Court of Appeal said, and is the case, that this appears to be the first occasion when the Liang v Li principle appears to have been applied, and that is in the case of The Queen v Kenneth Albert Patrick Young. Copies of this judgment have, as I understand it, been supplied to the Court this morning.
A judgment of the Court of Criminal Appeal of Victoria, the court comprised their Honours Mr Justice Starke, Mr Justice Crockett and Mr Justice O’Bryan, and it is interesting to observe that of course Justice Crockett was on the bench in both Young and Liang v Li. Young concerned a case of a plea of guilty to one count of attempting to pervert the course of public justice. At page 2 Justice Stark said:
The offence – and this is of some significance as far as the application for leave to appeal against sentence is concerned – was brought at common law.
Then at page 10 his Honour said:
However, the learned Judge did not have before him what I regard as a most significant matter. I said earlier that this offence was charged at common law. The identical offence with which this applicant was charged is made an offence in the federal field by s.43 of the Commonwealth Crimes Act and the maximum sentence therein imposed is two years. This section was not referred to the learned Judge but was referred to us. It seems to me on a general basis of parity that it is an appropriate matter for a judge to take into account. But even though in the Commonwealth field the same offence is limited to a penalty of two years, it may be in some circumstances that a judge will give a greater sentence if there are special circumstances surrounding the offence. But generally, I would think, in accordance with the sound principles of sentencing, he would not go beyond the maximum of a Federal Act which deals with the same crime.
FRENCH CJ: What is the principle of parity that is being referred to there? Is that meant to be some reflection of – something to be derived from prosecutorial practice, if it is the practice usually to charge offence (b) and in this case they have charged offence (a) which carries a more serious penalty, there is some kind of disparity in practice? What is the parity principle that is underlying this?
MR TEHAN: It is the reflection of the notion of equal justice, with respect.
FRENCH CJ: Yes, but how? That just puts it another way.
MR TEHAN: That State offenders should be treated the same and in treating them the same for the purposes of sentencing it is appropriate, where it arises, to have regard to a federal sentence which captures the same conduct with which those offenders are charged.
FRENCH CJ: But this principle is put on a more general basis than State/Commonwealth, it is State/State, is it not, as well?
MR TEHAN: It operates, we say, within a jurisdiction and it operates inter-jurisdictionally in the sense that a State court is able to look at the counterpart offence, if you like, in the federal sphere and say to itself, well, that conduct captures exactly the same conduct. It is the same elements of the offence. Therefore, it is relevant to take account of the lesser punitive sentence for that offence, as a matter of mitigation in penalty, and that achieves parity as a general proposition. It is not – well, it is parity because it – the man who is charged with the State offence can say, well, I cannot have a sense of grievance as against the federal offender charged with the same offence because the judge I was sentenced by took account of – pursuant to the Liang v and Li principle – took account of that lower maximum penalty.
HAYNE J: That sounds like section 109 of the Constitution, light. A section 109 light argument, Mr Tehan, and the point is not made captiously at all. It seems to be an argument that is founded on some notion of pre-eminence of federal law in this respect. Now, those arguments were lost to your client wholly at the point of plea.
MR TEHAN: Yes, and no arguments which we sought to litigate on the special leave application, and special leave has been granted on the basis of the ground which is before the Court, and that is what we are here to argue. Now, if these give rise to 109 arguments then - - -
KIEFEL J: If the principle in Liang itself is said to be founded upon unfairness, what unfairness could there be if there is a plea of guilty to the offence charged?
MR TEHAN: The unfairness arises by virtue of the fact of the Court not having regard to, and Justice Winneke speaks in terms of it being relevant and proper to have regard to the lesser punitive offence.
KIEFEL J: But there is an acceptance of guilt in relation to the elements of the offence charged. There has been no demurer. There is no suggestion of abuse of process, so what sort of territory are we in?
MR TEHAN: We are simply in the territory of a fundamental, significant common law principle that has been applied by intermediate courts throughout the Commonwealth for the last 30 years. Our friend says it should go. The Court of Appeal said the principle is good but it does not apply to keeping an eye on the federal offence. It only applies intra-jurisdictionally. That is where we contend the court went wrong.
BELL J: There might be thought to be some tension between the statement in Liang acknowledging that the selection of the charge lies at the sole discretion of the prosecutor and the statement that the judge has concluded that there is a more appropriate charge having a lesser maximum penalty or another charge as appropriate and sentencing by reference to that. That, I must say, Mr Tehan, for my part raises an issue concerning the principle which is not answered by saying it has been applied over the last 30 years.
MR TEHAN: The answer to that was given by Justice Drummond as a member of the Court of Appeal in the Full Court decision of R v Whitnall in the Full Court of the Supreme Court of the Australian Capital Territory where his Honour said, in effect, that the principle does not operate to restrain prosecutorial discretion, and it does not fetter prosecutorial discretion. But what it does is it allows the court to take into account a principle whereby the court is not being employed to impose a heavier sentence than it otherwise would have.
KIEFEL J: But does that not put the court in a rather strange position? It is acknowledging on the one hand prosecutorial discretion but engaging in an exercise which says that it considers it was wrong?
MR TEHAN: That there was an injustice.
KEANE J: That means it is wrong.
MR TEHAN: We say this. One can imagine of cases where unfairness in charge selection might amount to an abuse of process. It would be very hard to prove, that said, and we have not been able to find a case where, in fact, unfairness in charge selection has given rise to a successful claim of abuse of process. You would need more than simply a statement to the effect of, well, the prosecutor chose this because it allowed for a greater penalty.
KIEFEL J: On one view, it is probably surprising that there are not more examples of Liang because it will commonly be the case, will it not, that a person sentenced could say they could have charged me with a less something, about the same or with a – something of a lesser charge with a - - -
MR TEHAN: It does not arise all that often, your Honour.
KIEFEL J: Well, it could though, theoretically, it could. This is a very broad principle, is it not?
MR TEHAN: No, not really. It is a well-founded principle. It has been around for thirty years.
KEANE J: Insofar as it is a principle of the common law, one might have thought it might have been around for a bit more than thirty years. As a common law principle, has it been enunciated in any of the other common law jurisdictions?
MR TEHAN: It has. We gave the Court the article – the American article where - - -
FRENCH CJ: This is post-Booker.
MR TEHAN: Yes, the post Booker situation. The position in the United States was that prior to the case of the United States v Booker, there was mandatory federal guidelines for sentencing. Booker made that unconstitutional and, therefore, opened up the ability of courts to take into account disparities between federal sentences and State sentences. That is the United States position. They do take account of disparities now, as we apprehend it. There are two cases in England, one of which we have given the Court which is Quayle and there is another one by the name of Bright which is - - -
FRENCH CJ: There was a big problem, I think, in the United States, was there not, with prosecutorial selection of federal courts rather than State courts, particularly in the drug area, to attract higher penalties and that was overloading the federal courts.
MR TEHAN: Yes, that is what the author of that article, DeMaso, I think it is Ms DeMaso speaks of is the federalisation of criminal law with deliberate selection of the federal courts because they have higher penalties. The other English case is a bit more recent, I think, than Bright – than Quayle. It is the R v Michael John Bright (2008) 2 Crim A R Sent at 578. I mean, it does not cite Liang and Li but it is the same principle.
HAYNE J: I have Bright in front of me, but is Bright a decision where the prosecution was represented? Many sentencing appeals in UK are one side only?
MR TEHAN: Yes, that is true, your Honour. Yes, they were, your Honour. Both parties - - -
HAYNE J: Both sides represented.
MR TEHAN: - - - were represented by senior and junior counsel. So it has almost universal application in Australia and in other parts of the world, in particular England and America, we would say. It is a good principle, and 30 years is not a bad time for it to have been around. It is a very strong court, the deriding court, Justice Starke, Justice Crockett and Justice O’Bryan through to President Winneke sitting with Justice Crockett as a member of the court in Liang and Li.
HAYNE J: Can I understand the principle for which you contend? The principle seems to be, does it, the facts admitted on your plea of guilty would have sustained another charge with a lesser penalty.
MR TEHAN: Yes.
HAYNE J: Therefore, the sentencing judge should, what, take the lesser maximum penalty as the starting point for the sentencing discretion, or what?
MR TEHAN: We would say this, that it would be an error of the type that arose in the Queensland case of R v Gordon to take the lesser maximum penalty as the appropriate maximum penalty for the offence with which the accused is charged. However, so said, ordinarily that lower maximum penalty of the comparator offence is a significant guidepost. Therefore, there will be cases – and to be candid, perhaps this was one – where, as Justice Starke says in Young’s Case, there are special circumstances whereby you go past that comparator maximum penalty. That is the way we contend it operates.
BELL J: It seems to turn the process somewhat on its head to look for special circumstances to exceed the penalty fixed for another offence when, as I understand your argument, the starting point remains what is the maximum penalty for this offence, that is, the offence for which the offender has been convicted.
MR TEHAN: Not so, your Honour. It remains a significant mitigating factor. It might in a particular case not be of the greatest of weight. It might be in another case that it is of great weight, but - - -
HAYNE J: But this is the difficulty, Mr Tehan: what is the content of the principle you are urging?
MR TEHAN: The content of the principle that we urge is that where there is another offence and the conduct punishable by that other offence is exactly the same, then it is relevant for a court to take account of the less punitive offence as a matter of mitigation where it would have been as or more appropriate to charge that other offence.
FRENCH CJ: But if this is a matter of fairness, which is what you say underpins it, if this is a matter of fairness, does not that require that unfairness be overcome by sentencing as though the person had been charged with a lesser offence? What is the wiggle room for mitigation and terms like that?
MR TEHAN: Well, we cannot help the fact that we were not charged with - - -
FRENCH CJ: No, no, I am just asking how it – this goes to the content and application of this principle. If you are overcoming an unfairness in charge selection which the judge assesses by reference to appropriateness or relative appropriateness of the two offences, surely the only way that that can be overcome is by sentencing as though you had been charged with the more appropriate offence.
MR TEHAN: No.
FRENCH CJ: Well, then, what is the basis upon which you say, I will do something less than overcome that unfairness?
MR TEHAN: You keep an eye on that other offence, you keep an eye on it, just as if you were sentencing an offender for an offence and a co-offender had already been dealt with for the same offence and had received a penalty, a judge sentencing the co-offender after would keep an eye on the sentence that man got. That is why the underpinning rationales for the principle are fairness and parity. The outcome, an outcome, is the achievement of consistency in punishment, and consistency in the sense spoken of by this Court in Hili v The Queen consistency in the application of principle in a federal system.
FRENCH CJ: Well, in parity cases you are looking at what the other offender received. The difference is that you have regard to parity but you also have regard to the particular circumstances of the person you are sentencing, that is the differential.
MR TEHAN: Yes.
FRENCH CJ: That is a different kind of area of discourse from the question – that addressed by the question I was putting to you.
MR TEHAN: Well, it is analogous, though, your Honour. It is the closest ally we have to the – the allies to this principle, the rationales to this principle, are parity, fairness, consistency in punishment and also, we would say, parsimony.
HAYNE J: All of those principles you seek to engage by reference to conduct rather than charge, that is, conduct rather than offence charged, because the conduct you say could have yielded either charge A or charge B, if charge A would carry a lesser sentence?
MR TEHAN: Conduct decides charge. The conduct - - -
HAYNE J: Conduct opens a range of choices about charge.
MR TEHAN: Yes, but the conduct decides the charge. That is what decides the charge so, in our submission - - -
HAYNE J: The underlying question that is swirling around the back, Mr Tehan, is that you are getting the sentencing judge out into territory that is at least partly occupied, perhaps solely occupied, by the prosecutor’s chambers, that is, you are getting the judge into consideration of issues that go to charge selection.
MR TEHAN: Not at all, your Honour.
HAYNE J: No?
MR TEHAN: Not at all, no. We are getting the judge to apply an established principle that as a matter of mitigation you take account of the reality that this man could have been charged with the same offence that carries a lower maximum penalty in another jurisdiction, and that is relevant as a matter of mitigation because it allows for fairness and parity in the sentencing of the offender. It has nothing to do with prosecutorial discretion. It has nothing to do with abuse of process. It may be in a most unusual case – we have not been able to find one that does give rise to abuse of process, but even if it did, that would not deny the existence of the principle. The principle would still exist. The principle is still good.
The argument as to abuse of process, with respect, by our friends is misconceived. The principle co-exists with abuse of process and being a principle of the common law in sentencing it has some fluidity to it, just as though totality has fluidity to it. In a State sense it might be applied by – you could take the example of saying, well, you could have been charged with these matters and been dealt with in the Magistrates Court. There is nothing wrong with keeping an eye on the penalty that might have been applied in lower courts.
KEANE J: Why is that not just a way of articulating the notion that that is an indicator that it is a less serious example of the offence that has been charged?
MR TEHAN: That gets to the critical aspect as to how we go about doing this. If I could take the Court to paragraph 43 of our submissions, in determining whether to have regard to the fact that the less punitive offence could have been charged, it is erroneous to consider, as the Court of Appeal did here, whether the maximum penalty for the less punitive offence would be adequate to do justice to the conduct charged.
It is submitted that it is wrong – and to invert the instinctive synthesis – to refrain from considering the less punitive offence just because the maximum penalty is thought to be too low in the instant case. Rather, the task is first to consider whether the alternative offence adequately captures the same behaviour caught by the charged offence. If it does, then the court merely must have regard to the fact that the less punitive offence could have been charged and that the offender would have been subject to a lower maximum penalty.
The fact that the penalty for the less punitive offence is comparatively low, or may even be considered to be inadequate, does not then prohibit consideration of the principle. If the conduct is considered sufficiently serious to warrant a penalty in excess of the maximum penalty prescribed by the comparator offence, then the court can sentence beyond that maximum penalty while still giving consideration to the principle.
So it is not in any way a fetter or restraint. It is simply something that you have regard to. It is a matter of mitigation to say you could have been charged with exactly that same offence, and indeed there are people out there who are charged with exactly the same offence. They would never get more than five years. Now, I think your conduct is worth more than five years, but I still keep an eye on the fact that you could have been charged with exactly that offence and would have been subject to no more than five years.
FRENCH CJ: If the conduct is considered sufficiently serious to warrant a penalty in excess of the maximum penalty prescribed by the comparator offence, how does any notion of appropriateness or inappropriateness in selection of charge arise? The selection of the charge has been made as completely appropriate because it is apposite to the seriousness of the conduct.
MR TEHAN: Because the selection of the charge has nothing to do with the maximum penalty. In this sense, this is what we mean by the instinctive synthesis being inverted, having regard in particular to what this Court said about the relevance of the maximum penalty in Markarian. To look at the maximum penalty is the wrong approach. One looks at the conduct and the charge and asks oneself could that offence have been charged. There is an intoxicating view about, well, you look at the maximum penalty and simply say that is too low; Liang and Li cannot apply. That is the wrong approach, with respect. The right approach is to ask oneself: does the conduct fit the charge? If it does then it is a matter for mitigation. That is all Liang and Li establishes and that is what we are here to uphold. The Court of Appeal found that it was a good principle. They simply said it did not apply in an inter-jurisdiction way.
Now, to return to our submissions, we have dealt with the argument as to abuse of process. The second argument put against us is, it seems to us, that Victorian law requires that one has regard to the maximum penalty and that therefore means the court is estopped, so to speak, from having regard to the maximum penalty for another offence. This, of course, is critical because it seems to us, at least, to be the basis for the Court of Appeal’s reasoning as to why the principle in Liang and Li was overruled in the sense of confinement to State judicial power.
Now, could I take the Court to the Sentencing Act (Vic) and in particular section 5(2) of the Act. It provides as follows:
In sentencing an offender a court must have regard to—
(a) the maximum penalty prescribed for the offence; and
(b) current sentencing practices; and . . .
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
Could I now take the Court to the appeal book at paragraph 41 – sorry, the appeal book at page 1138 and paragraph 41 of the judgment of the Court of Appeal where the Court states:
We do not consider that the requirement that a sentencing judge have regard to the maximum penalty prescribed for the offence, as required by s 5(2)(a), prohibits the judge in the appropriate case from applying the common law principle. The judge is not by taking account of a lesser maximum penalty acting in disregard of the statutory mandate. Rather the judge is having regard to a relevant circumstance as required by s 5(2)(g). Implicit in an argument advanced by some of the appellants was the notion that s 5(2)(g) evinced a Parliamentary intention that regard could be had to the penalties fixed for like offences in the Federal jurisdiction. Whilst common law principles of sentencing not inconsistent with the provisions of the Sentencing Act 1991 continue to operate in conjunction with its provisions, the language of s 5 provides no support for the submission that penalties fixed in another jurisdiction are a relevant sentencing circumstance. Where however there is another more appropriate State offence which enlivens the common law principle, it will, like any other mitigating factor, contribute to the instinctive synthesis.
Now, there is another part also of the Court’s judgment in paragraph 88, which is at appeal book page 1156, where the Court states:
Section 5(2)(b) of the Sentencing Act 1991 requires the sentencing judge to have regard to current sentencing practices and ss (2)(g) to the presence of any mitigating factor or any other relevant circumstance. These provisions accommodated the common law principle.
So, in our submission, the court was wrong to conclude that section 5(2)(g) did not accommodate the principle in the sense of permitting a State court to look at the less punitive offence in the federal jurisdiction.
Can we now take the Court, in support of that proposition, to the judgment of the Court of Appeal in Stalio v The Queen? Stalio v The Queen is an unreported judgment of the Court of Appeal, [2012] VSCA 120. Liang and Li actually gets a mention in Stalio at paragraph 35:
Sentencing practices at the time of the offence may raise questions of equal justice in the same way as notions of parity and the rule in R v Liang & Li, although neither of these matters is enumerated under s 5(2).
We rely upon that, because we say principles such as totality, proportionality and Liang and Li parity, they are not articulated in section 5 but they still apply. They apply in the Commonwealth field too under section 16 of the Crimes Act (Cth). We know of that decision of.....in the Commonwealth field that dealt with the question of whether general deterrence is taken into account in relation to a Commonwealth offender. It does not crack a mention, section 16, but it is still a relevant sentencing matter. Can we take the Court then to paragraph 42 of Stalio? Having set out the terms of section 5(2), the court opined:
These factors are not, however, exclusive. The phrase ‘must have regard to’ does not imply that there may not be other matters which are relevant. The phrase takes its meaning from the context in which it appears. In this regard, the last words in the list of factors identified under s 5(2) are ‘any other relevant circumstances’. This phrase makes clear that the list is not to be regarded as exclusive. There are significant considerations such as parity, which are not referred to but raise plainly potentially relevant circumstances.
One aspect of parity, a practical application of parity, is the rule in Liang and Li, and we say that the Court of Appeal were wrong to consider that section 5(2)(g) compelled the conclusion that it did not permit a State court to look at the penalty for the same offence in the federal sphere.
So, that deals with the first part of the argument - of the second argument put against us. The first argument put against us was abuse of process. The second argument seems to be this regard to the maximum penalty in section 5. The second part of the argument appears to be that – when I say appears to be, the Court of Appeal placed weight upon the supremacy of the Supreme Court of Victoria in sentencing has been a ground for saying that it is wrong for the Supreme Court to look to what the sentence might be in a federal sphere. That appears at paragraph 56 at page 1146 where the court speaks in terms of – the bottom of 1145 of the appeal book:
Where a prosecuting authority of the State of Victoria institutes a prosecution in respect of offending proscribed by Victorian legislation and thereby charges the offender with an appropriate Victorian offence, putting authority to one side, the sentencing judge must act ‘with fidelity to the court’s constitutional function’.
citing your Honour Chief Justice French in Momcilovic:
It would be contrary to principle were a sentencing judge, exercising State judicial power, required to take into account a lesser maximum penalty applicable to a Commonwealth offence with which the offender could have been but was not charged.
That process of thought really follows through paragraphs 57 and 58. It seems to be, as we summarise it, an argument to the effect that the State court in sentencing the Supreme and, therefore, that means that you do not have regard to penalties in the federal sphere. Our answer to that is this; that the common law principles of sentencing apply throughout Australia. That is trite. The application of the common law is not restrained by the boundaries of Territories or States. Principles of totality, parity and parsimony apply to all courts sentencing offenders throughout the Commonwealth.
BELL J: Is not the point that is being made in paragraph 56 that in circumstances in which the Victorian Parliament has fixed a maximum penalty for the common law offence of attempting to pervert the course of justice, the court ought not to look to the maximum sentence imposed by another Parliament relating to conduct that might be captured by that offence? The Court seems to draw a distinction between looking at the statutory maximum of offences proscribed by the Parliament of Victoria and in circumstances where the principles enunciated in Liang are engaged, the Court says it is permissible to have regard to the lesser maximum in that circumstance. But it seems to me that that is the idea that is informing - - -
MR TEHAN: That is certainly the idea which is informing the court.
BELL J: So that is nothing to do with the notion that common throughout the Australian jurisdictions is recognition of basal principles of sentencing, including totality and proportionality?
MR TEHAN: They seem to be saying – and this is critical – they seem to be saying that you cannot take into account as another relevant circumstance the maximum penalty for a federal offence.
BELL J: But coming back to the idea of having, as it were, respect for the maximum that the Parliament has prescribed, the reason it might be thought that the Sentencing Act directs a judge to take into account the maximum sentence is because it is the way traditionally a court determines the seriousness of the offence in the judgment of the Parliament. Now, that raises the difficulty of how one takes into account the lesser maximum, be it the judgment of the same Parliament, because it is for a different offence and one there seems to face a tension because applying the Liang principle the judge is necessarily undercutting, as it were, the sentencing task by having regard to another offence which might have been charged because, the decision having been made by the prosecutor in the exercise of the executive function, it is the court’s task to sentence for that offence.
It might be, as Justice Keane points out, that the conduct is at the low end of the scale, in which case the sentence will tend to be at the low end of the scale, but it will still be informed by a view of the seriousness of the offence for which the person has been convicted. Once you start the judge taking into account the seriousness of the another offence which the judge thinks might be appropriate, you are running into the difficulties of the sort dealt with in Maxwell v The Queen, are you not?
MR TEHAN: With respect, no, your Honour. There is no traversing. There is no attack upon the integrity of the State court. The State court has before it a State offence with a penalty to it. But the maximum penalty is not the be-all and end-all. As this Court pointed out in Markarian v The Queen, the maximum penalty may in a particular case be very relevant. In another case it might not be of a lot of relevance at all because it has been there for a very long time, or there are other circumstances which render it not as relevant. It may be that the maximum penalty if far too low.
One of the interesting things about this offence of attempting to pervert the course of justice is this; that Victoria is the only State in the Commonwealth which has retained the common law offence of perverting the course of justice. It carries 25 years’ imprisonment. In the Code States of Queensland and Western Australia it carries a maximum penalty of seven years. In New South Wales it carries a maximum penalty of 14 years. In South Australia it carries a maximum penalty of four years. In Tasmania, also a Code State, it carries a maximum penalty of 21 years.
As we know, in the federal sphere the maximum penalty, at least at the time of this offending, was five years. Section 43 used to be two years; that is what Young was dealing with. Then at the time of this matter it was five. It has since been increased to 10 years. So that is why this Liang and Li matter is not going to arise all that often. As I think Justice Redlich said in one of the cases, it is not often engaged, but still a significant common law principle.
It does not attack the integrity of the State court in sentencing. It simply gives fairness to the offender by applying parity and saying, I have kept an eye on the fact that you could have been charged with exactly the same offence in the federal sphere and if you had been, you would have been liable to a lesser penalty. That is all it does as a matter of mitigation and we could say, well, that has got to be something which, as we say, has been reflected now in decisions over the last 30 years. It is not an attack upon the integrity of the State sentencing court, in our submission.
HAYNE J: And you have to say that there is no tension between the require of 5(2)(a), that a sentencing judge must take account of the prescribed maximum for the offence charged and the proposition you advance, which is that the sentencing judge must have regard to the maximum sentence for an offence which could have been but was not charged, and you say that there is no tension between those?
MR TEHAN: There is no tension between those matters, your Honour, because regard to an offence which was as, or more appropriate, regard to a penalty for an offence which was more appropriate is a relevant circumstance, and comes under the purview of section 5(2)(g).
HAYNE J: But the tension is revealed, is it not, when content is given to “must have regard to”? “Must have regard to” is not just, by the way, I look over there and see, it is take to account. So you have to take to account the prescribed maximum, but at the same time you say also take to account the maximum for an offence which could have been but was not charged, and there is the tension, is it not?
MR TEHAN: You take account of the maximum penalty for the offence with which he is charged, but you take into account as a relevant circumstance the fact that there was a more appropriate charge with which he could have been charged, that is the principle. The principle is not, you take into account – I mean, that is the end result; that you keep an eye on the less punitive penalty. But the principle is that you take account of the fact that there was as or more appropriate offence with which he could have been charged. That is the principle, and that is why we say that the approach of simply looking at the maximum of the other offence and dismissing Liang and Li arguments is wrong, and it is inconsistent with Markarian and inconsistent with instinctive synthesis, as set out at paragraph 43 of our submissions.
Now, that then deals with the second argument advanced against us, and if we could turn now to the second issue in this appeal, and I will deal with the section 43 argument and my learned friend, Mr Carter, will deal with the section 325 part of the argument. Now, there seemed to be two matters which are advanced against us as to why section 43 of the Crimes Act (Cth) was not as or more appropriate. One is that section 43 is not a substantive offence so it could not have been charged.
To that we say that is plainly wrong and we point to what the Court for Crown Cases Reserved said in R v Vreones [1891] 1 QB 360, which dealt with the offence of attempting to pervert the course of justice, where Chief Justice Lord Coleridge at page 367, at the bottom of that page, said:
I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour; and though I should myself have thought so on the grounds of sense and reason, there is also plenty of authority to shew that it is a misdemeanour in point of law.
At page 369, Baron Pollock said:
The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.
In our submission, attempting to pervert the course of justice is a substantive offence. The elements of the offence under section 43 are exactly the same elements as the common law offence, save to say that the offence under section 43 introduces a federal element to it.
KIEFEL J: It is a bit more than a federal element. It is directed specifically to the judicial power of the Commonwealth.
MR TEHAN: Yes, directed specifically to the - - -
KIEFEL J: As I understand your proposition, we are not talking about an alternate offence which comes close to; we are talking about an alternative offence which could have been charged.
MR TEHAN: We go further than that, your Honour. We say that section 43 was in fact the offence which should have been charged here. What was being perverted, the course of justice which was being perverted, was the judicial power of the Commonwealth – I am sorry; was in relation to the judicial power.
KIEFEL J: How do you meet the argument against you that the trial had ceased, the conviction had been made and what was being undertaken was the exercise of executive power to take him into custody?
MR TEHAN: We meet that argument by taking the Court to R v Murphy [1985] HCA 50; (1985) 158 CLR 596. In Murphy this Court had to consider whether an attempt to influence a magistrate in the conduct of committal proceedings for a federal offence amounted to the offence under section 43 of attempting to pervert the course of justice.
The submission made on behalf of the appellant was that the committal proceedings being administrative in nature were not in the course of justice in relation to the judicial power of the Commonwealth. The Court traced the history of the section, section 43 in the Criminal Code (Qld), and held that the inclusion of the words “in relation to the judicial power of the Commonwealth” gave the provision a wider operation than it would have if the limitation had been expressed by the use of the words “in any judicial proceeding”. At page 611, the Court held at about point 5 on that page at the end of the first full paragraph:
The words “in relation to the judicial power of the Commonwealth” give the section a wider operation than it would have had if the limitation had been expressed by use of the words “in any judicial proceeding”.
Then in the next paragraph, at about halfway into the next paragraph, the Court said –
The words “in relation to” simply connote the existence of a connexion or association between the course of justice which is attempted to be perverted and the judicial power of the Commonwealth –
What we contend for is this, that all that is necessary to justify a charge under section 43 is a connection or relationship or an association - - -
KIEFEL J: To judicial power.
MR TEHAN: - - - between the course of - - -
KIEFEL J: Is the judicial power of the Commonwealth seen to be engaged at the point of charge, when a person is charged, and is not the committal proceeding then a proceeding which confirms whether or not the matter is to be referred into the court?
MR TEHAN: Yes, and indeed, that is what Murphy held.
KIEFEL J: But the point taken against you is that here the judicial power has been completed. It is at the other end. The argument you have to deal with is that the judicial power has been completed by conviction and sentence, and all that remains is the exercise of the executive power to take him into custody, to execute the judicial order. That is what you have to deal with.
MR TEHAN: Yes, but if committal proceedings, which are regarded as administrative in nature, can be said to be part of judicial power, then even more so, in our submission, the act of a person who whisks a man away from the ability - - -
KIEFEL J: No, I do not think that follows at all. The judicial power is engaged, I think, at the time the committal proceedings occur. They are part of proceedings which refer to the judicial power, even though they are not themselves judicial power. But here, you are at the other end of a process which is argued by the respondent to be complete.
MR TEHAN: All that is left at the passing of sentence is no judicial power at all, no actions incidental to judicial power. It is all over because sentence has been passed. Only the power of the Executive remains. We say at the very least, the actions of an executive in administering or managing punishment of a person are at least incidental to judicial power, reflected in the passing of sentence. But all that is needed in our submission, applying Murphy’s Case, is a connection or a relationship, and in our submission, the acts of the appellants did meet that criteria in the sense that they occurred after the passing of sentence and, as we say, were at the very least incidental to judicial power in that sense.
KIEFEL J: Your argument would have to be, would it not, that the conduct of those convicted was denying the prospect of the judicial order being carried into effect? It would have to be addressed in that way?
MR TEHAN: Yes, that is what we - - -
KEANE J: So, it is really defeating the course of justice in relation to the judicial power of the Commonwealth?
MR TEHAN: Yes, well, perverting the course of justice.
FRENCH CJ: It rather throws up one of the problems generated by the so-called Liang principle, does it not, that the sentencing judge has to get into, potentially, an important constructional debate about the meaning of the section which is said to give rise to an offence with which the accused could have been charged?
MR TEHAN: Not so, your Honour, indeed this is why we say - - -
HAYNE J: How else does the sentencing judge determine the identity that is the premise?
MR TEHAN: Sorry, when I say – I might have jumped the gun a bit quickly there. Yes, I mean, the judge has to decide whether the conduct fits section 43, that is true enough.
HAYNE J: You have a long elaborated mini trial at the sentencing hearing about whether this man could have been charged with an offence with which he has not been charged and whether the facts would fit the charge that is not before the Court. We are off stage right a long way, are we not, at that point, Mr Tehan?
MR TEHAN: Not so. This was exactly the charge that should have been levelled.
BELL J: That is unless the charge that should have been levelled was an accessory after the fact?
MR TEHAN: Yes, well, that is true.
BELL J: The inquiry gets more byzantine.
MR TEHAN: Accessory after the fact – there is not a case we know of and there is a footnote in Justice Whelan’s sentence in – I think the appellant who is not with us now, to the effect that, you know, there is just not a case. In the one case that his Honour found was a case called Gill which is an English case which was not post sentence, it was whisking a man away who was on bail, I think, and I think about to start trial. So, there is the novel thing about this case, that it does arise post sentence and the acts undertaken would traditionally fall within an offence such as harbouring, or assisting an offender, or impeding the punishment of the offender.
Now, all State jurisdictions have got that sort of thing. In fact, the Commonwealth has got charges within this very division or part that section 43 is under. All of the offences under this section, I think, bar one, carry maximum penalties of – or did, at the relevant time, carry maximum penalties of five years. That is why it is a very good vehicle, if you like, this case. We say and Mr Carter will say that 325 more adequately fitted exactly what this conduct was.
Our friend would say, well, we chose this common law offence because of the high maximum. We say – well, we might not say that, I do not want to verbal him but maybe that was a consideration of prosecutorial in the...... That is okay but all we say is that when we fall for sentence it is appropriate as a matter of mitigation to say well, in fact, the course of justice that was being perverted here was federal.
Mr Mokbel was on trial for a federal offence. When he did not show up before Justice Gillard, Justice Gillard issued a federal warrant for his arrest. He was sentenced with Justice Gillard sitting as a Chapter III court. It was a State court exercising federal jurisdiction and the acts that we did of harbouring him and assisting in his transport across Australia should have been section 43 was the right charge because what was engaged was a perversion of the course of justice in relation to federal judicial power. All that is needed to engage that element of the offence in relation to the judicial power of the Commonwealth is no more than a relationship, association or connection with the course of justice.
That was obviously here, at the very least what we did – when I say “we”, the appellants did – in relation to or incidental to that judicial power. So that is that matter put to rest and, in our submission, there is no merit in the argument that because the judicial power was spent, so called, therefore there was no connection with it and the course of justice.
Now, that then completes the submissions that I desire to put to the Court other than this, that we would submit that the Court of Appeal in upholding the decision or the sentencing judge in the case of Elias to not have regard to the Liang and Li principle was wrong and caused a miscarriage of justice in the sentencing of our client. The sentence imposed upon him for the offence of attempting to pervert the course of justice was one of eight years. That is double the highest sentence ever imposed in the
State of Victoria for the offence of attempting to pervert the course of justice.
Mr Mokbel on his trial for the Commonwealth offence with which he was charged, a serious Commonwealth offence carrying also I think a maximum penalty of 25 years, received a sentence of 12 years with a minimum or non-parole period of nine years. Had Mr Elias pleaded guilty to the common law offence of attempting to pervert the course of justice, he would have got a sentence, in our submission, pretty close to what Mr Mokbel got on his trial, and it is undoubted that, had the judge applied the Liang and Li principle, we would have done better than eight years.
FRENCH CJ: Mr Tehan, you asserted in passing that the sentencing court had been exercising federal jurisdiction. At paragraph 26 of the judgment of the Court of Appeal at page 1131, it said that relating to section 39 of the Judiciary Act:
The section has no application where the court is not exercising Federal jurisdiction. As each of the appeals against sentence by Pantazis, Issa and Elias followed a plea of guilty to a State offence prosecuted by a State prosecutor in a State court, the section had no relevant operation.
I think later on there is a reference to the exercise of State judicial power. It seems to me that the basic argument you are putting does not turn on the question of the characterisation of the jurisdiction that was being exercised. In other words, you say this Liang and Li principle does not matter whether they are exercising federal jurisdiction or State jurisdiction.
MR TEHAN: No, it does not matter, your Honour.
FRENCH CJ: Yes, all right, thank you.
MR TEHAN: It may be that if it is in the reverse, if in fact it is a federal offence with which you are charged and that court is being asked to look at a lower punitive regime in the State area, that that gives rise to section 109 problems, but as a matter of principle, the principle is still there.
FRENCH CJ: Yes, thank you.
MR TEHAN: May it please the Court.
FRENCH CJ: Yes, Mr Carter.
MR CARTER: Your Honours, the question of section 325 of the State of Victoria Crimes Act is that raised by ground 1(b), the alternative way in which it was submitted that the principle in Liang and Li was invoked, and I should indicate that the oral argument in respect to this will be much shorter than that of my learned friend, Mr Tehan, because he has dealt with the questions of principle concerning Liang and Li.
Could I take your Honours first to the presentment in the case of Mr Issa, which is at volume 1, page 9, and invite your Honours to look at the way in which count 1 in that presentment was pleaded? I could indicate that it is materially the same in the case of Mr Elias at page 15 and indeed Mr Pantazis, who is now deceased, as your Honours are aware, save for variations as to the precise dates. But in relation to Mr Issa, what was pleaded was that he had done a series of acts that had a tendency to pervert the course of justice, and I quote:
thereby impeded his arrest and the punishment imposed upon him by the Supreme Court at Melbourne on the 31st day of March 2006.
And your Honours would note that the dates of the count run from the date on which his Honour Justice Gillard sentenced Mr Mokbel.
Can I secondly, your Honour, take you to the terms of section 325(1) of the Crimes Act (Vic), and in particular the element of that offence dealing with the purpose of the conduct which includes namely, and I quote:
impeding the apprehension, prosecution, conviction or punishment of the principal offender –
The submission, your Honours, and I know the argument must go further than this of course, is that when one compares the acts admitted by the appellants by the presentments to which they pleaded guilty, and the terms of the crime described by the Victorian legislature in 325(1), that there is a near perfect symmetry and that 325(1) did indeed capture precisely what the appellants did and admitted to doing by their guilty pleas.
The next point, your Honours, is that it is of note that some co-accused, and when I say co-accused I mean what the Court of Appeal correctly described as lesser offenders involved in Mr Mokbel’s harbouring and flight, had indeed pleaded guilty to charges preferred under section 325 of the Crimes Act. Our learned friends have referred to the sentence of her Honour Justice King in R v Zeidan [2009] VSC 137. Our learned friend’s reference is at paragraph 6.39.
That was a couple that pleaded guilty to having harboured Mr Mokbel at Elphinstone for a few nights prior to him joining the convoy to Western Australia. Now, the Court of Appeal, in disposing of this limb of the argument at 1158, 91, say they accept the director’s contention that plainly the conduct here was much more serious, to which the submission in short is, well, yes, we agree. They got a fully suspended sentence. To be sure this on the admitted conduct was a very serious case of assisting an offender because of the duration and because of the number of acts, but it did not, in our respectful submission, deny the successful invoking of the Liang and Li principle that there were less serious alternate offenders.
BELL J: When you speak of invoking the Liang principle, does it present any difficulty that your client did not do that in front of the sentencing judge?
MR CARTER: Your Honour, can I say as to that it invites close scrutiny. I concede that. We have special leave on the point. I also must concede that in the Court of Appeal concessions were made and the focus of the argument became very much section 43. But, your Honour, can I take you, not just in answer to your Honour Justice Bell’s question because, in my respectful submission, it answers something about in particular what your Honour Justice Hayne has referred to as to the tension between prosecutorial discretion and the principle, if there is one, despite its challenge by the notice of contention, to the way in which the point was taken at plea by counsel on behalf of Mr Pantazis, Mr Wraight.
He submitted, if I could take your Honours to page 57 of volume 1, as I have just submitted, that when one contrasts the presentment with the terms of 325 that was the appropriate crime. I will not read it all, your Honours, but it is, in particular, Mr Wraight’s Liang and Li submission commencing at 57, line 19. Indeed, he addressed 325 first and then turned to section 43, for the reason that my learned friend, Mr Tehan, has touched on, namely, Mr Wraight said – and this is later at page 62, line 19 – that he had agonised over whether the conduct did mean attempting to pervert the course of justice, given the way that offence usually arises – interfering with witnesses, et cetera – but the prosecution were insisting on the 25-year count so the plea went ahead.
But back to Mr Wraight’s taking of the 325 point, your Honour, the submission was – page 58, line 12:
His involvement is in May 06, Mr Mokbel runs from custody in March 06, and others have been charged with harbouring of him shortly after that, what Mr Pantazis does is more accurately described, in my respectful submission, as a 325, s.325 offence.
Then at 61, line 25:
in my respectful submission, 325 fits it better.
Then, as I have indicated, at 62 Mr Wraight is talking about the fact that the prosecution would not move from its position. At page 66, Mr Wraight referred to the sentence that had been passed on the Zeidans. Now, the prosecutor, in my respectful submission, in a submission that shows the principle in action, said, one, we accept that 325 was open. He said that at 82, line 16:
We accept that the charge of s.325 is technically available.
At 83, line 14:
I don’t take issue with the proposition that technically s.325 could have been pursued.
“Technically” invites attention to what is he saying? His Honour the sentencing judge asked that: “Did your proofs differ?” The answer, at 83, line 22:
On the facts of this case, I don’t think so, Your Honour. I think so long as on the facts of this case the course of justice was the evasion of the sentence of imprisonment imposed by the Supreme Court, that being the course of justice, then it would seem to me that both offences would be made out –
KIEFEL J: But that is the important difference between the two offences, is it not? Section 325(1) is a general provision relating to accessories after the fact, and the common law offence here in question is directed to a perversion of the course of justice, which is quite specific and an extremely serious offence. It is not just giving aid to someone to cause them not to be prosecuted or punished. It is more than that. It is a perversion of the course of justice. That accounts for the higher maximum sentence.
MR CARTER: I am not sure, your Honour, with respect, that there is much logic to the maximum penalties, about which I will come to, given what Mr Tehan said about - - -
KIEFEL J: But what about the point of difference being that the course of justice is the matter to which the common law offence is directed. That is the point of distinction, is it not?
MR CARTER: It is a point of distinction in the objectives of the crimes - - -
KIEFEL J: You cannot really say that they are perfectly comparable offences, is really the point. They are not.
MR CARTER: But there is, with respect, your Honour, a great deal of overlap because any case where - - -
KIEFEL J: It is not overlap. One is very general and can apply to conduct which is serious, obviously, but nothing like the more specific offence which is directed to the course of justice.
MR CARTER: But your Honour, if, to take the terms of the presentment in this case, any time an offender impedes punishment in the sense of helping someone escape and avoid the warrant or whatever that is outstanding in respect of a sentence, that will carry with it, whether it is charged that way or not, in an analysis of offence seriousness the fact that it has undermined, interrupted - - -
KEANE J: No, the difference is that the common law offence is about intending to pervert the course of justice. Section 325 does not have anything about the intent to pervert the course of justice.
MR CARTER: I accept that, your Honour, but what - - -
KEANE J: And what he was charged with was a series of acts. Section 325 talks about “an act”. The sort of thing that you are suggesting looks at each act whereby there is an objective consequence. That does not capture what happened in these cases where, as the Court of Appeal said, they were participants in the execution of a very sophisticated criminal plan directed at the heart of the administration of justice. While it might have been technically open to charge your client under 325, if that course had been taken at the very least, he probably would have been charged with several acts and several offences, and in any event, it would not have been apt to capture the criminality involved in the execution of this, as the Court of Appeal said, sophisticated criminal enterprise.
Your Honour, there are, I think, perhaps at least two points there, if I could attempt to deal with them. The first, not necessarily in order, but the question of multiplicity of acts, which was a point taken by our learned friends, in my respectful submission, that was no impediment to 325 being regarded as a viable alternative and more appropriate charge.
KIEFEL J: But it affects the question of whether or not there was an injustice potentially to your client because if there had been a multiplicity and they had applied to accumulate them would your client have been in much better position?
MR CARTER: Well, your Honour, with respect, when the – and I was about to get to it and hopefully it is on this topic – when the prosecutor responded to the Liang and Li submission in relation to 325 in the plea of Mr Pantazis at appeal book page 85, what he submitted was, line 13:
The prosecution is ultimately entitled to take into account the maximum penalty as part of its discretion to proffer the charge as [it has]. In our submission, that only the maximum penalty of the attempt to pervert the course of justice properly gives this court the adequate range –
There was nothing about we would have needed to lay a series of acts, and the important point of principle, at least in the State of Victoria, and, as I understand it, it is in other States, is that it is quite routine when a matter resolves as a guilty plea to have a single rolled up count encompassing the conduct, but the prosecutor’s submission was not, no, that would require multiple acts. It was we have decided in the exercise of prosecutorial discretion to go for that with the higher maximum, and that is the prosecutor’s discretion but then it is for the court to sentence and the prosecutor does not have all power at that stage, and that is where the Liang and Li principle becomes so important.
The question of - if I could try and complete my answer to your Honour Justice Keane’s questions - if there was trial and the matter had not resolved then, yes, separate counts would be required to avoid problems of duplicity or uncertain verdict.
BELL J: Can I just inquire about the sentencing for an offence under 325 of the Crimes Act? Subsection (4) provides for a greater level of potential punishment in respect of an offence that is a level 1 offence down to a level 3 offence. Now, I take it those are levels within the punishment of offences under the Victorian statute?
MR CARTER: That is correct, your Honour.
BELL J: Does it follow that because the principal offence was not under the Victorian statute, (4)(b) was engaged?
MR CARTER: That is the way on which the matters proceeded, your Honour. That is my understanding. That is why it is accepted at (4)(b)(i) “5 years” is the appropriate comparator maximum for the purposes of this argument.
BELL J: Here we have a principal offence which carries a maximum of 25 years, but it is not under the Victorian statute and so, if the principal offence were a Victorian offence and carried a lesser maximum the punishment would be under subsection (4)(a), that does not, by, as it were, a quirk, that does not apply here. Is that the position?
MR CARTER: I understand that that is the position, your Honour, but if I discover that there is an error with that - - -
HAYNE J: The Commonwealth Code does not capture accessories after? I would have thought – why are we into the Victorian Act? Mokbel was dealt with for Commonwealth offences?
MR CARTER: Yes.
HAYNE J: How do we get into “accessory after” under the Victorian Act? All this is on a supposition that it is relevant and to all this on a supposition that somehow there is an interfering – an impeding rather with punishment after punishment has been passed where we are concerned with impeding execution of punishment. But how do we get into the Victorian Act at all?
MR CARTER: Your Honour, with respect, we did in the joint outline of submissions, indeed, paragraph 46 in footnote 60, draw to the Court’s attention that there was dicta of his Honour Justice Marks in the unreported case of Edwards v Hutchins that the word “enactment” would, for constitutional reasons, be confined to Victorian enactment and if that was correct, then 325, on one view of it, would not be in play.
HAYNE J: But leave aside that, at root principle the Commonwealth Code deals with accessories before and after, does it not?
MR CARTER: Yes, I believe it does.
HAYNE J: I do not see how 325 of the Victorian Act even begins to appear from the wings, let alone emerges on to the stage.
MR CARTER: Your Honour, the history - - -
HAYNE J: I know it has been conducted in the way it has and you are left with what has happened below, but we are not.
MR CARTER: Indeed, your Honour, and your Honour really encapsulates it. The history of the matter was Liang and Li albeit only taken in the full sense by my learned friend Mr Wraight on behalf of Mr Pantazis was Commonwealth section 43, State section 325. Whether or not 325 could have been charged or not, though, on the principle as explained by his Honour Justice Starke in Young’s Case to which Mr Tehan has taken you, it would be a different principle, perhaps, or an expansion of the principle but it would not necessarily swing on whether or not a charge could have been laid.
HAYNE J: You are then expanding this principle for which your side is contending to a very large - I was about to say boundary. I cannot see the boundary, Mr Carter.
MR CARTER: Your Honour, with those speed humps avoided for one moment, could I come back to how the Court of Appeal dealt with this point which in part takes up the second aspect of your Honour Justice Keane’s question as to the gravity of the conduct.
The Court of Appeal disposed of this aspect of the argument at appeal book 1158 to 1159. Paragraph 91 really deals with the concessions that were made, and I have answered that question as best as I can. Yes, concessions were made in the Court of Appeal, but it is perhaps the case that they reflected more the emphasis of the argument being on section 43 and the contrast that was being made between 325 as a different offence, whereas in the case of section 43 the argument was that it was the same offence rendered more appropriate because it in fact related to the interests of the federal legislature. I know that goes back to Mr Tehan’s territory, but that was another reason why President Winneke in Liang and Li identified it as relevant to look at what the Commonwealth Parliament said.
At paragraph 92 of appeal book page 1159 lie the court’s substantive reasons for rejecting this ground. What is, with respect, central to the reasoning is the role that the maximum penalty plays in this puzzle. In my respectful submission, the correct approach in principle is that set out in our written submissions at paragraph 43, which Mr Tehan has already taken the Court to, and that it is wrong in principle – in this case the Court of Appeal dealing with an appeal against a sentence of eight – to say, “No, the maximum is only, in this case, five to 25”. It does invert the instinctive synthesis and it is contrary to what courts, most importantly this Court, have said about the role of maximum penalties, especially in Markarian.
There are cases where a maximum penalty is set at a very high catch-all level that has not been reviewed for many, many years. Perhaps apposite in the case of the Victorian offence, given what Mr Tehan has drawn attention to in relation to the other jurisdictions which I should indicate that those references are collected in one of the submissions from the court below at page 971 in the footnote. Indeed, it is Mr Wraight’s written case.
The correct approach is to look at whether the alternative offence described by the legislature captures the conduct. In my respectful submission, 325 did capture this conduct and 325 is, with respect, important should, contrary to our submissions, it be held or accepted that there was any impediment to the Supreme Court of Victoria looking beyond the border to the federal legislature, because this was the State Crimes Act in relation to a sentence that had been imposed in the Supreme Court.
The way in which, in practice - and this comes back to your Honour Justice Hayne’s question as to tension between regard to, as I understand the question, how can there not be tension when regard must be had simultaneously to two conflicting maximum penalties, and the initial answer to that, in my submission, must begin with the role of the maximum penalty, which I do not seek to go back over, but its role is not to be overstated, it is not to be the starting point or indeed the end point of the instinctive synthesis, but something that regard must be had regard to.
If Liang and Li is properly engaged the regard that is ultimately had to it might be very little, and McEachran, with respect, was a good example of that. Mr Tehan has already taken your Honours to the statements of principle coming from his Honour Justice Redlich, but his Honour went on to say at page 637, paragraph 56, after the passage that Mr Tehan has already taken you to that:
In accordance with the joint judgment in Markarian v R it must be remembered that the maximum available sentence provides a yardstick which must be considered and balanced with all other relevant factors.
There, in that particular case, looking at the offence of child stealing his Honour went on say that:
Parliament’s view of the seriousness of child stealing, as reflected in the maximum penalty for the offence, should not be ignored unless it is concluded . . . that it was not an appropriate offence –
So the way the principle was ultimately applied by the majority in that case dealing with intrastate comparisons at page 638 at paragraph 58, midway through the paragraph, his Honour states:
The learned sentencing judge was, as a matter of fairness, obliged to take into account the less punitive regime as a mitigating factor in fixing the sentence on the common law count of kidnapping. As a mitigating factor, it should have reduced the sentence which would otherwise have been imposed for the common law offence. There is authority for the view that a sentencing judge, having taken the lesser maximum sentence into account as a mitigating factor “on the basis of parity”, may “in special circumstances” go beyond the maximum penalty for the less punitive regime -
which, of course, is a reference, and it is cited by his Honour, to the judgment of the Court of Criminal Appeal in Young. So the submission is that because 325 did properly describe the admitted criminal acts, impeding apprehension, impeding punishment, that the sentencing discretion was vitiated by specific error because the sentencing judges did not mitigate sentence on that account on that basis and that the court – and your Honours will have perhaps noticed that the terminology used in the ground of appeal, namely the failure to “have regard to” is the same language as section 5 of the statute, the contention being that regard had to be had to it.
Whatever difficulties might arise with application, the submission in principal is that his Honour Justice Redlich in McEachran, citing Justice Starke with whom Justices Crockett and Justice O’Bryan agreed in Young, is the usual starting point. A lesser sentence should, as a consequence, be passed on count 1, which would also affect the non-parole period and, other than that, your Honour, I will rely on what is been - - -
HAYNE J: Just before you sit down, Mr Carter, if the Victorian Act, 325, is irrelevant, it is, I suspect, irrelevant because of section 6 - as Justice Bell is good enough to point to me, section 6 of the 1914 Crimes Act:
Any person who receives or assists another person, who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
So I suspect that your argument just becomes an argument substituting that section for 325 as the relevant point of reference which you say should have been made.
MR CARTER: I am grateful to your Honour drawing that to my attention. It is remiss of us not to have picked that up earlier. That would appear to be correct, your Honour. They are substantially the same types of crimes, but of course there are other issues in play on this appeal. If the respondent’s submissions are upheld, that would deny the capacity of a Victorian court to look in a section 109-like sense, as your Honour Justice Hayne puts it, at what the federal legislature has said in the event of conflicting consequences. If the Court pleases.
FRENCH CJ: Thank you, Mr Carter. Yes, Mr Silbert.
MR SILBERT: If the Court pleases. Just dealing with the so-called principle of Liang and Li, the boundary question raised by his Honour Justice Hayne in relation to 325 actually applies, it is submitted, to the whole principle. In relation to the ancestry and pedigree of the principle, as Justice Keane said, how does a common law principle come into effect 30 years ago? In fact, Liang and Li was 1995, so we are looking at 18 years. It did not exist prior to 1995. It is asserted to have come into existence in 1995. The case of Young that existed before that, it is submitted, was clearly wrongly decided.
BELL J: But does not Scott v Cameron mark the starting point for the appellant’s argument?
MR SILBERT: It does, your Honour, and as our written submissions assert, principles of statutory construction, we would assert, provide an explanation for each of those supportable decisions based on the effective application of the principle specialia generalibus derogant. Each one of those cases can be explained on that basis. The ratio of Liang and Li, it really was the upholding of a manifest excess ground upon which counsel for the applicant, who to this day cannot understand the decision, stumbled on a specific ground of error in the course of making the argument, and the Court is probably not interested, but he described it last week to me as the silliest decision he had ever seen.
Now, as far as Liang and Li goes, the principle, it is submitted, is correctly laid forth by the Court of Criminal Appeal of New South Wales in El Helou, and there is no need for the Court to go to this, but at paragraph [90] of that, that court in the judgment of President Allsop as he then was, says:
Finally, it was submitted that the sentence should be reduced to bring a degree of conformity with the penalty under s 306.2. I disagree. The laws of New South Wales should be applied for New South Wales offences. It would be inappropriate for a lesser sentence than that warranted under New South Wales law to be imposed on Mr El Helou by reference to a possible charge under a Commonwealth law carrying a lower penalty, with which offence he was not charged.
Now, if one wants to approach the matter as a matter of logic and principle, it is submitted that, although it does not refer to Liang and Li, it correctly states the principle because boundary wise if the principle is a good principle, and it has been tested thoroughly in discussion with my learned friends today, what would stop a judge sentencing on a count for murder, saying that the more appropriate charge was one of manslaughter? It bears no boundaries in any area in which it is tested and it is submitted for that reason, simply calling it a principle does not elevate it to the position of principle.
It is a decision which has been misapplied, rarely applied, since 1995, and fairly well misunderstood. It is submitted that to that extent the Court of Appeal in this case was half right and half wrong. It was right to the extent that it addressed the cross-border jurisdictional aspect of it, but was wrong to the extent that it says that it upheld its application within the jurisdiction of Victoria.
FRENCH CJ: To reject the principle, looking at paragraph [90] of El Helou, by reference to the silos of State and Commonwealth legislation, may go perhaps wider than is necessary and run into problems about overlap between Commonwealth and State jurisdiction. One can be exercising a jurisdiction apparently pursuant to a State law which nevertheless involves federal jurisdiction, as we saw with Momcilovic, I think.
MR SILBERT: Yes, your Honour.
FRENCH CJ: I am just not sure that that is a basis for rejecting Liang and Li. I am not saying Liang and Li is good. I am just saying it gets a bit troublesome once you start compartmentalising State and Commonwealth law, I suspect.
MR SILBERT: Once you have Commonwealth statutes coming into play with State statutes, our submission is that section 109 effectively - - -
FRENCH CJ: Well, we are outside the range of section 109. We are not talking section 109.
MR SILBERT: Yes. We reject the proposition that the Commonwealth statute has any bearing if the indictment is a State indictment.
FRENCH CJ: Your general proposition is it does not matter if there is another State law.
MR SILBERT: Yes, it does. It then becomes a matter of statutory construction within the framework of State laws, and State laws make provision for, for example, if someone is convicted of two offences which virtually cover the same conduct, then there is an Interpretation of Legislation Act which determines how sentencing is to be imposed from that point in time. So we simply reject it effectively as existing in any context.
HAYNE J: What is the provision of the Interpretation Act to which you just referred?
MR SILBERT: I think it is section 52, but I am speaking entirely from memory, perhaps. Perhaps my junior, who has a - - -
FRENCH CJ: It might be helpful to have a note of that.
MR SILBERT: He says it is 51.
FRENCH CJ: Sorry, 51?
MR SILBERT: He will check that, your Honour. It is effectively the double punishment section.
FRENCH CJ: That is equivalent to what we refer to as a rollback, is it?
MR SILBERT: Yes, it is. Your Honours, our argument effectively in relation to Liang and Li, the principle so-called is outlined I think adequately in our written submissions. I do not really want to say any more than that, unless the Court wants to take me to any particular aspect. Looking at the two asserted putative alternatives, section 53 of the Crimes Act (Cth) - - -
FRENCH CJ: Section 43, I think.
MR SILBERT: - - - in relation to the nature of that offence, it is submitted that it is not a substantive offence. It is an inchoate offence. It is all very well to refer to Vreones, which refers to the common law offence, but section 43 is a statutory offence, and on its terms, it is submitted that it is an inchoate offence, not probably that it has any great bearing on the argument.
In relation to the second point, the application of federal jurisdiction and the reference to R v Murphy, the point – and it is outlined in our written submissions – is that the Tribunal was functus officio. The jurisdiction had been exhausted at that point in time. It had been spent, and there was no aspect of federal jurisdiction left for section 43 to attach to, and I think that has been raised in the course of questioning.
What Liang and Li would command, effectively, if it was a principle, would be a qualitative assessment by a sentencing judge evaluating a putative alternative offences and it would involve in every sentencing case the judge going into an examination of what the alternative offences available were, whether they were more or less appropriate or as appropriate and factoring that into the sentencing discretion. That would become a task of – it would make sentencing even more complicated than it is at the present time. It would add nothing, effectively, to the question of
treating like cases alike or consistency in sentencing and it would, it is submitted, add nothing but complication to the sentencing task.
In relation to section 325, assuming for a moment that it is a viable alternative and I will perhaps come back to Justice Hayne’s and Justice Bell’s comments on that in a moment, dealing with the matter raised by Justice Keane, section 325 deals with an individual act. At the time the Crown presents an indictment, it is not in a position to present a rolled up account. There would be a count for each act falling foul of section 325 and the availability of a rolled up count bundling together numerous acts would only come about in a situation where a discussion is resolved in a plea negotiation in a plea of guilty. So 325, effectively, on its face is not, even if it were available and I suppose the argument would be and no one has ever cited an indictment under 325 in relation to this, so I am trying to help my learned friend. In relation to 325(6) which refers to an enactment, it may arguably, and I do not necessarily support this, but 325(6):
In this section, “serious indictable offence” means an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more.
HAYNE J: That takes you off into the Interpretation Act and what is meant by any enactment and all of the usual provisions about - - -
MR SILBERT: I am not trying to save my learned friend, your Honour, I am just raising it as it occurred to me whilst I was reading it when the Court was discussing it with him. Clearly, the Crimes Act (Cth) as far as an accessory after the fact, given that the principal offence was a Commonwealth Act, the charge was under the Crimes Act (Cth) would be the apposite.
But it does illustrate, perhaps, the complexity, the lack of boundaries and the degree of confusion that this so-called principle would insinuate into the whole sentencing exercise if it were left standing after today’s hearing. I think probably those are the matters I wanted to raise. I am happy to take any questions if your Honours have any of me but they are our submissions.
FRENCH CJ: Thank you, Mr Silbert. Yes, Mr Tehan.
MR TEHAN: If the Court pleases, can we deal with that last matter first? There is no lack of boundaries. There is no mini-trial to be held. The Liang and Li principle has been around for 30 years. In our submission, it has a very practical application, as epitomised by what President Winneke said in Liang and Li itself. The remark that I want to draw the Court’s attention to is set out at page 1140 of the appeal book in the judgment of the Court of Appeal. This is President Winneke speaking in Liang and Li:
[I]t would in my view seem to be a relevant factor in the sentencing process to consider what the relevant legislative body, (namely the Commonwealth) regarded as the appropriate ‘sentencing tariff’ for an offence perpetrated against its interests or the interests of bodies for whom it had power to legislate.
That is the practical application of Liang and Li which at least in Victoria and also, we would say, in other State jurisdictions, has been operating for the last 30 years.
It is a perfectly sensible common law principle. It is not engaged often, but when it is engaged it should be applied. Our friends referred to what Justice Weinberg had said to him. Justice Weinberg is the author of a paper entitled “The Labyrinthine Nature of Federal Sentencing”, delivered at a conference on federal crime and sentencing held here in Canberra on 11 and 12 February 2012.
In that paper he discusses Liang and Li and says, as we do, of the decision of the Court of Criminal Appeal in El Helou, that it is a great pity it was not brought to the attention – that is, Liang and Li – was not brought to the attention of the New South Wales Court of Appeal. Of course the Court was - - -
KIEFEL J: But, for what purpose, I suppose?
MR TEHAN: Sorry, your Honour?
KIEFEL J: For what purpose, so they could denounce it or approve it?
MR TEHAN: No, so they could uphold.
KIEFEL J: I see.
FRENCH CJ: This is all very interesting, but I do not think it is going to any legal point any more than Mr Silbert’s reference to social commentary.
MR TEHAN: Yes. Well, what we say about El Helou is this though: that Liang and Li was not brought to the Court’s attention. The remarks made by President Allsop were made in the context of resentencing of the appellant in that case in circumstances where, on the appeal against conviction, Justice Allsop had found that the offences being engaged were quite different, and so it has very little application, in our submission, to the debate before this Court.
Our friend said that this was a silly principle. In our submission, it is a principle which walks hand in hand with principles of parity, fairness and equal justice. They are not silly principles. Liang and Li should be upheld to pay due regard to those principles of fairness, parity and equal justice. If the Court pleases.
FRENCH CJ: Thank you, Mr Tehan. Mr Carter.
MR CARTER: I have just one short point, your Honours. My learned friend submitted that the prosecution would not have been in a position to have a rolled up indictment in relation to 325. That is not so at all, with respect. Indeed, the plea on behalf of Mr Issa – if I could just give your Honours the reference – at page 148, reference was made by his counsel to the fact that the presentment had to be negotiated. There was not anything specific said about this point because, of course, the point was not taken. As I have already taken the Court to in the plea of behalf of Mr Pantazis, what was said was that it had been a negotiated presentment. Mr Wraight said he had agonised over whether the count was appropriate and then he made the Liang and Li submission, which of course the plea shut him out from making.
What Mr Wraight said in the end, and there was no disagreement about this from the prosecutor, was that the reason they had charged the 25-year offence was to have a greater maximum in play, not because they could not, as part of the negotiated guilty plea, have laid a single count pursuant to the State Act, 325.
FRENCH CJ: Thank you, Mr Carter. The Court will reserve its decision.
AT 12.04 PM THE MATTER WAS ADJOURNED
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