Achurch v The Queen [2013] HCATrans 278 (8 November 2013)

Last Updated: 13 November 2013

[2013] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S116 of 2013

B e t w e e n -

BRIAN WILLIAM ACHURCH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 9.52 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: May it please the Court, I appear for the applicant with MR D.P. BARROW. (instructed by Catherine Hunter Solicitor)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. For reasons that were essentially concerned with cost and expediency, after this Court’s decision in Muldrock, application was made to courts of first instance, but this was actually the first case. This was really a test case as to whether or not section 43 of the Crimes (Sentencing Procedure) Act could be utilised to reopen the sentences.

Events have overtaken that now, but what happened was that we were unsuccessful in reopening and a test was formulated which we say was contrary to the tests that had previously been propounded and which would make the provision largely unworkable for reasons which I will say in a minute, except for purely technical errors that amounted to unlawful sentences. Shall I talk about that now or shall I come to it in a moment, your Honour?

FRENCH CJ: Before you go on, do you require an extension of time?

MR GAME: I require an extension of time which is not opposed.

FRENCH CJ: Is that opposed?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR GAME: So the first judgment, if I could just take your Honours to page 58 of the application book - there are the grounds and 1 was upheld but was immaterial; 2 to 5 were all upheld. They all concerned a standard non-parole period and they were all held by the Court of Criminal Appeal in the subsequent proceedings to have been wrongly upheld. Ground 6 was found not to have been infected by error and 7 was found to have been infected by error from Muldrock.

If I could just take your Honours briefly to some parts of the judgment of the first court, we see at page 80, paragraph 76 and following, why grounds 2 to 5 are infected by error. Then we see in a passage at page 86 that 2, 3, 4, 5 had an impact on sentence. Then when we come to ground 7, we see at paragraph 142 the excessive sentences. We see that the Muldrock error infected the excessive sentences, and we see that again at 155, and the court accepted also that the errors infected the sentences imposed on resentencing at 166.

So we have gone from a sentence with a non-parole period of six years to a non-parole period of 13 and a head sentence from 14 to 18. We say that it is clear that the Muldrock errors affected the sentences imposed by the first court. So much is really not disputed by the Crown here or in the Court of Criminal Appeal on the second occasion.

A test was ultimately formulated – was that not only did we have to establish error but we also had to establish that the sentence ultimately imposed by the Court of Criminal Appeal was a sentence that was not open, and that was the test that was propounded. If you go now to page 121 which is the second judgment, there was no challenge to what was described as the broader interpretation of section 43. Our position is this; that there are really two constructions of section 43 that are available. One is that it is concerned purely with what I might describe as unlawful sentences, that is to say, sentences that at law were not capable of being imposed.

HAYNE J: Which is to say a sentence of a kind, which was not available.

MR GAME: That is right, yes. Or it means at least error of law on the face of the record that has an effect on sentence. That is the way we put the test to the Court of Criminal Appeal. Now, the Court of Criminal Appeal has said, in effect, error of law on the face - - -

HAYNE J: Which is, in effect, second general appeal.

MR GAME: Well, your Honour, no, your Honour, it is not second general appeal because it affects – the error has to have flown through to the result. What has happened here – that is why you get to penalties. Sorry, can I say this? There is always discretion to refuse, so it is a discretionary provision. So the court could respond by saying the appropriate remedy is an appeal. The remedy was chosen in this case because there were so many cases that had to be dealt with - I am just telling your Honour what the actual background was, it does not matter.

But when you look at the cases, and I will just refer to a few of them, you will see – sorry, should I say this? What we did in this case followed the lead of the Northern Territory Supreme Court in Melville and Staats after this Court’s decision in Siganto where they reopened the sentences using a similar power to, as it were, resentence having regard to the error made by that court but recognised in Siganto.

So, just leaving the first judgment, we say interests of administration of justice clearly warrant the correction of an erroneous sentence. The court in the second case never got to the error because they found the error but then they said the sentence was open in some kind of hypothetical way. But this is a Crown appeal where we end up having to show before, in effect, the same judges that the sentence was manifestly excessive. So if I just show - - -

HAYNE J: But the work of your proposition about erroneous sentence is done by the word “erroneous” - erroneous as to outcome, erroneous as to reasoning supporting it, erroneous in either form is, I think, the latent ambiguity in the proposition, is it not?

MR GAME: Yes, I understand that, your Honour, but it does not add anything to say was that sentence open as a matter of discretion – apply what the court described as “instinctive synthesis”. This is a long way from a provision that has got anything to do with instinctive synthesis.

FRENCH CJ: If a sentence is open as a matter of discretion, can it be said that it is contrary to law?

MR GAME: Well, we say yes because what we say is this. That is a very difficult question in a sense because what does it mean on a Crown appeal where you are applying different principles, but what we say - - -

HAYNE J: No, no, no, appeals lie against orders. They do not lie against reasons.

MR GAME: No, no, I understand that, your Honour, but what we submit is this, that if you have an error of law on the face of the record and if it has affected the penalty, then at that point you have established the threshold in section 43:

imposed a penalty that is contrary to law –

That is what the cases say up until this case.

HAYNE J: That is the most radical restructuring of the jurisdiction of the superior court of this State.

MR GAME: But that is what these cases say. In fact, they go further, and not only that, they go a lot further. They say you can correct errors of fact. They say you can backdate. They say you can do all of these - - -

HAYNE J: Yet the first order that is made is said still to retain the character of a judgment order or sentence yielding an appeal to this Court though it is intrinsically reviewable on these broad bases, is it?

MR GAME: Well, your Honour - - -

FRENCH CJ: Why bother to go to the High Court?

HAYNE J: Yes.

MR GAME: Well, we are here now.

HAYNE J: Yes, but if you are entitled to two general appeals, you have worked the most radical restructuring of the court system in a way which, if the legislature works it, so be it, but it is a large result.

MR GAME: No, I understand that, but we have provisions like this throughout the country except in Victoria and these cases are used – I did not say – I was stating a fact - - -

HAYNE J: Not a voce comment, Mr Game, was it, for the moment.

MR GAME: I see. Anyway, if you look at these cases, and we have relied on these cases, these cases actually form part of the law around the country with respect to the application of this test and they are routinely used for correction purposes. Now, we say in principle what we are doing is no different. We say in respect of that what we are doing is no different than what is done in these other cases.

Now, I got to page 121 and we saw that there was no challenge to what was described as the “broader interpretation”, whatever that means – sorry, that is my “whatever that means”. But once you get to that point, then you have to grapple with the difficult arguments that are raised as to how the section works because if you accept the broader interpretation then you are not concerned purely with what would be described as unlawful sentences, sentences that technically could not be imposed.

We would say that whether or not as a matter of instinctive synthesis the sentence was open does not add anything to the actual process of thought, that is to say, you either have to go with the way we put the question of construction or you have to take the narrow approach, and that there is no other actual way open of construing these provisions.

Why I said that it has largely become unworkable except for technical errors is that you would be in the situation – say, for example, you took these cases where they regularly applied, for example, factual errors or backdating and so forth, you would have to go back to the sentencing court and you would have to say to the sentencing court, well, we want to deal with a backdate and then the sentencing court would say, well, was that sentence open to me in the first place. You lose if it was open.

So that cannot – and I said this more than once, and the court says you apply an instinctive synthesis to that. That is an instinctive synthesis to yourself and it just does not make sense. So what we would say is that once you get to – and the test is – I am going to run out of time if I go through those cases, but the court states a test at paragraph 63 which is repeated again at 73 and 93 is a sentence which “was not otherwise open to the court to impose”. Then it says this is not inconsistent with the various cases, but those cases are inconsistent with each other, Meakin, Wise, Ho and Tolmie. They are actually inconsistent with each other because one is the narrow view and one is the broad view.

HAYNE J: But did not the Court of Criminal Appeal proceed on a broad view of the operation of the section because that was undisputed?

MR GAME: Up to a point.

HAYNE J: And then say that the penalty actually imposed in the first appeal, if I can call it that, is not shown to be one which was not properly imposed.

MR GAME: No, that is not the test. The test is whether it “could have” been imposed. That is at 73, and the other paragraph I just gave you, 93. That is different.

HAYNE J: How? Are they any more than different ways of saying, look, sentenced imposed is within the range?

MR GAME: Sorry, that is what it means, within the range. But what they are not doing is saying was it affected by error, did that affect the outcome, which is a different question. That is what they are saying. It was within the range. That is what they are saying. It could have – if the court had got it right, which the court did not, the court could have imposed a sentence of 13 years, but they actually – what they do is they say, well, the ground about the medical health could have been – should have been upheld, therefore the appeal would have been upheld.

They do not go on to consider the manifest inadequacy question at all, but then they just ask this hypothetical question about whether it could have been imposed. But that, in our submission, cannot be a test for application of a provision like section 43, and it would have trial courts, sentencing courts, appeal courts asking themselves whether or not their own sentences were hypothetically available. But can I say this? The words within the range have got no work to do in the context of a provision like section 43.

Now, that might drive you to a narrow view of section 43 or it might take you to our view which has been applied consistently for 25 years or so and repeated over and over, or it might drive you to accept ours. The approach that the Court of Criminal Appeal takes cannot be a correct view of the law because the idea of within the range just does not feed into what appears in the section. That is really the - - -

FRENCH CJ: When they say “within the range” or “open” what does that actually mean? Does that mean not on its face indicating error?

MR GAME: It just means that if you look at that sentence you ask yourself could that sentence have been imposed. They do not actually go into all of the technicalities like discretion on a Crown appeal, discretion as to whether or not reserves should be exercised in resentencing or any of those questions. They just say look at that sentence, look at what the situation was with respect to the medical evidence. Could that sentence have been imposed as a matter of discretion?

Now, that is not – we say that all that is is a way of showing error. What we are being forced to do is show error at a second level. We are being forced to show patent error and then latent error, and that is what it amounts to, and it cannot be right. If we have shown patent error, then you look to the result. You look to the outcome. You do not look to a kind of hypothetical question which is another way of demonstrating error but not jurisdictional error.

A sentence that is inadequate or excessive, there is nothing jurisdictionally problematic about such a sentence, and the test that we propose actually works. It may be very broad. It does work to say is there an error of law on the face of the record because what that does is it limits you to identifying errors that can be readily seen and identified and if they are not accepted then that is cause not to exercise the discretion. Then, did it affect the outcome? Now, that is actually narrower than these cases because these cases are saying you can say, for example, correct a factual error. Well, that might not affect the outcome, so we do actually – we go the extra step.

FRENCH CJ: So you say the term “contrary to law”, properly construed, means infected by an error of law on the face of the record.

MR GAME: Yes, which affected the outcome because that is how you get to the word “penalty” - which affected the outcome. It could not be denied

that these errors affected the outcome in this case. Sorry, my yellow light is on but I will just finish by saying that we say that both applications warrant a grant of special leave. We say in respect of the first one that there is a patently incorrect sentence imposed that has not been corrected and the processes contemplated by the court in the second application do not actually address that, that is to say, they accepted all of the errors in the passage I just took your Honours to between paragraphs 70 and 72, and what we say is that if you get the errors identified from 70 to 72, then the discretion is enlivened at that point, that it adopted in resentencing. At that point you have established error. You do not need to go on to what they did in 73 and following. That we say is erroneous. That is really all I wanted to say about that.

FRENCH CJ: All right, thank you. Yes, Mr Pickering.

MR PICKERING: Your Honours, we would say that the sentence cannot be contrary to law if it was open to the Court of Criminal Appeal, and we focus particularly on an aspect of paragraph 92 at page 145 of the application book, dealing with the ground of appeal that was the medical evidence in this matter. At paragraph 92 the important determination was that this Crown appeal, looking at ground 6 which no one can dispute was not impacted by any Muldrock error, was the justification that the Crown appeal should be upheld.

Within that, you can see that if this was purely a Muldrock error appeal, that being if there had not been ground 6, if it had just been purely confined to this particular Muldrock error, then this wider interpretation of 43 would have actually potentially solved, in Mr Game’s submission, the issue in this matter because it would have been found that the Crown appeal could not have been successful and this wider interpretation of 43 would have resulted in a sentence that was contrary to law.

However, this was not simply a Muldrock matter. This was a matter where fundamentally that medical evidence went to the Crown appeal. It reflected in the original sentence of the quite significant low non-parole period sentences imposed, it was reflected in the quite substantial finding of special circumstances where there was a head sentence of 13 years and a non-parole period of five years in relation to the matter, and that double counting aspect that Justice Johnson in the original appeal highlighted of how the medical evidence was taken, it was found to be exceptional and it was taken into account on both the reduction of the non-parole period and the special circumstances.

So, once you see paragraph 92 at page 145, and the court then moves to page 146 of the application book at 98, you see that the court has then

looked at all the factors relevant to sentence, they have engaged in “intuitive synthesis” sentencing, and they are satisfied that the sentences imposed:

were within the reasonable discretion of that Court and could in accordance with correct principle, have been lawfully imposed by the Court.

Really that gets to the heart of what section 43 is. Even if it has a wider interpretation, it is still designed to correct errors, a sentence “contrary to law”. This is a matter where the court has found error, not being a Muldrock error – being the medical ground and how it was taken into account – they have then looked at all the circumstances, as they have expressly said at paragraph 98, and determined that the sentence was not contrary to law.

It is not necessarily the case that the respondent accepts that the sentence could not have been achieved but for the sentence in accordance with Way. That is not what the Court of Criminal Appeal has said themselves. They say when we find that ground 6 could have been established, when you look at all the relevant circumstances, when you sentence in a way consistent with Markarian, that the sentence was not contrary to law, that is that in accordance with correct principle it could be lawfully imposed. That is consistent with 43 looking at the outcome as opposed to the process.

FRENCH CJ: That is even if the discretion was informed by an error of law?

MR PICKERING: Well, the discretion – there clearly was error, there is no dispute that there was a Muldrock error in that aspect, but they relooked at the sentence, taking into account that error, and still determined that ultimately sentencing in accordance with that principle the same result – within a lawful discretion – could have been achieved. To give some interpretation on section 43 that the sentence, even if it is not contrary to law, that you can still essentially use it as, effectively, a rehearing of the entire appeal which fundamentally is what the applicants sought here for the Crown to completely recast its grounds and for the appeal hearing to commence again, is giving an extraordinary wide interpretation to section 43. It is no longer correcting an error contrary to law. It is actually essentially recasting an entire appeal and cutting across the appeal regimes in relation to sentencing. Thank you, your Honours.

FRENCH CJ: Yes, Mr Game.

MR GAME: In respect of paragraph 92 and ground 6, the only place that gets anyone is that there was a basis for upholding the appeal, which we do

not question, but they never got to ground 7 which was the manifest inadequacy ground and they never got to discretion. I add to that, the “could have been imposed” actually adds nothing to what one – in terms of penalty contrary to law, from what has already been found as the errors back at paragraph 72 that infected all of the grounds except for ground 6.

HAYNE J: Can the reasons of the CCA be read as encompassing two propositions: one, that the court in the second hearing, the 2013 hearing, was not persuaded that the sentence in fact imposed could not lawfully have been imposed; and, two, the CCA was not persuaded that this was a case in which a different sentence should have been passed?

MR GAME: The court did not conclude the second because they stated the test three times as could have been imposed and the conclusion at 99 is just an adoption of that.

HAYNE J: Paragraph 98 was what I was - - -

MR GAME: Sorry, yes, so I would accept the first but not the second, your Honour.

HAYNE J: It is the clause:

we are satisfied that the sentences which were imposed in the Court of Criminal Appeal were within the reasonable discretion of that Court - - -

MR GAME: Yes, but I would say that is the first proposition your Honour just put to me, not the second. They did not go to “No other sentence appropriate”. They did not even address that question. Thank you.

FRENCH CJ: Thank you, Mr Game. The Court will adjourn briefly to consider what course it should take.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

FRENCH CJ: There will be a grant of special leave on ground 2.2 in relation to the judgment of 22 May 2013 and the Court would make it clear that the correct construction of section 43 will be in issue.

MR GAME: If the Court pleases.

FRENCH CJ: So the judgment the subject of the grant of special leave is that given by the Court of Criminal Appeal on 22 May 2013. That will be a day or less, Mr Game? Mr Pickering? There are timetabling directions which should be available to you.

AT 10.20 AM THE MATTER WAS CONCLUDED