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High Court of Australia Transcripts |
Last Updated: 7 August 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S113 of 2014
B e t w e e n -
PHILLIP CHARLES KENTWELL
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S114 of 2014
B e t w e e n -
ANDREW O’GRADY
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
HAYNE J
BELL J
GAGELER
J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 AUGUST 2014, AT 10.16 AM
Copyright in the High Court of Australia
____________________
MR T.A GAME, SC: If the Court pleases, I appear with MS J. L. ROY for the appellant Kentwell, and MS G.A. BASHIR for the appellant O’Grady. (instructed by Legal Aid Commission of NSW)
MR J.H. PICKERING, SC: I appear with MS T.L. SMITH as the respondent in both matters. (instructed by Solicitor for Public Prosecutions (NSW))
FRENCH CJ: Thank you. I presume, Mr Game, you will be addressing us on both Kentwell and O’Grady?
MR GAME: That is correct, and we have one outline for both.
FRENCH CJ: Yes.
MR GAME: So I will deal with the general propositions and then I will pick up some aspects of the cases. Shall I wait for a minute or shall I just press on, your Honour?
FRENCH CJ: Just let us have a quick look at your outline. Yes, thank you, Mr Game.
MR GAME: Thank you. Now, your Honours, can I take you to the statute first, Criminal Appeal Act, and this is well-trodden territory but I will just go through it briefly. Section 5(1)(c) is the provision dealing with the right of appeal against sentence and there is a requirement for leave, and 5(1)(b) deals with conviction where there is not solely a question of law. Although in New South Wales leave is heard with the appeal, it could be heard separately and in some States, to my knowledge, it is.
Section 6(1) is the common form provision dealing with conviction appeals, and it is that provision that has the proviso “no substantial miscarriage of justice”, which has some significance in the context of this case because the test that we are complaining about is now being applied to conviction appeals with a projection about the proviso in extension of time cases; it is a case called Miles. Section 6(3) is the provision dealing with sentence appeals, and buried in section 6(3) are really two things. One is the need to establish House v The King error, and the other is the re-exercise of the sentencing discretion. When one talks about the section 6(3) exercise in this case, one is talking about the second – or that is what is being talked about in this case when people talk about the section 6(3) exercise, which is the re-exercise of the sentencing discretion.
Your Honours, section 6(3) also speaks to the present tense; that is to say, according to established authority, it applies to circumstances as they exist at the time of the appeal. Two cases, Douar and Baxter, deal with that proposition. I wanted to take your Honours to one short passage in Douar now. It actually picks up a passage of your Honour Justice Hayne’s judgment in AB, but this is a convenient place to find it; Douar (2005) 159 A Crim R, and there extracted at page 170 is – the AB incident is a completely different situation, but there at 170 in paragraph 90 is extracted a passage from your Honour Justice Hayne’s judgment in AB, and we say that is the correct approach to section 6(3). We say that that is the correct approach to section 6(3) and it is conventional and it applies to circumstances as they exist at the time of the appeal.
HAYNE J: Even behind that, behind AB, I think you trace the development of the understanding of 6(3) back to Skinner’s Case in – is it 16 CLR. It is all conveniently brought together in Lacey v Attorney-General (Qld).
MR GAME: Yes, your Honour. Yes, I am sorry, I should have put Lacey on. When one talks about the section 6(3) exercise, critically one is in the court’s exercise of discretion and one has to have regard to all of the material before the court. It is essentially a resentencing exercise and it is really just a matter of convention that findings are or are not adopted from what the sentencing judge did so that counsel may say well, we do not dispute findings in paragraphs X to Y, but when you get to paragraph 53, from there on, that is where the problem is. But that is really just a matter of convention.
HAYNE J: No, it is not. It is a question of assignment of error.
MR GAME: Yes, your Honour, but - - -
HAYNE J: It is the logically prior step that until the appellant assigns error nothing happens.
MR GAME: No, quite, your Honour. But the point I am trying to make is that once you have assigned error, the court’s discretion is wholly engaged. It is not some limit on the engagement of the discretion and it is a discretion to resentence, but limited by the fact that the court would dismiss the appeal if it would impose the same or a longer sentence. That is how this section has been applied. Now, yes, to determine whether some other sentence is warranted in law is what is actually happening at that point. So those are the propositions that we pick up in paragraph 2 of the outline - sorry, up to section 10. We come to section 10 then, and section 10 is the extension of time provision.
BELL J: Just before you go to that, can I just inquire whether in the last submission that you made, based on the statements in Douar adopting AB, if one goes to the judgment of Chief Justice Spigelman in Simpson (2001) 53 NSWLR 704 at 720, paragraph 79, is your submission a departure from the approach that the New South Wales Court adopted in Simpson?
MR GAME: No, your Honour.
BELL J: No. So you accept that approach?
MR GAME: Yes.
BELL J: Thank you.
HAYNE J: Well, I am not quite sure what you are accepting, Mr Game.
MR GAME: Well, I am accepting that Baxter is the correct statement of the law which seems to adopt Simpson. If one looks at - what is being said is – Simpson is not on our list, but if one looks at Baxter which is at paragraph 2, that is not a problem to our argument, but the discretion is - - -
HAYNE J: I do not know what is meant by the third sentence in that quote, “Unless such an opinion is formed.” At least on one reading of that passage it seems to me to proceed from a premise different from Skinner, Griffiths and, ultimately, Lacey and to revert to the notion that the task of the Court of Criminal Appeal begins at the point of determining whether that court itself would impose a different sentence.
Now, if that is the proposition being stated that is, I think, a radical proposition that needs to be unpacked. At least at the moment it seems to me a proposition that is sharply at odds with a very long and very large body of authority about the application of the common form Criminal Appeal Act 1907 (UK), which strangely enough, Mr Game, despite your list of authorities, has been engaged and applied in jurisdictions other than New South Wales.
MR GAME: Yes, your Honour - I am having a bad moment, your Honour, not for the first time. We have looked at the interstate cases but they do not speak with one voice and we have looked at them but there are Victorian cases, there are Queensland cases and there are South Australian cases.
HAYNE J: Also Western Australian cases.
MR GAME: Also Western Australian cases.
HAYNE J: Yes. We are to sail on in ignorance of them all, are we?
MR GAME: No, your Honour, but if you would permit we could send a note up with those cases - we have actually looked at them and we could send a note up if you gave us leave to do so and we would ask that we be given that.
HAYNE J: I would be assisted by it, Mr Game.
MR GAME: We have done that work, but I am sorry, we have not – but can I just come back to the word “unless”? That word - and I am going to have to qualify if not completely withdraw the acceptance I had to your Honour Justice Bell’s proposition, but there is a problem in the word “unless” because really if the court’s discretion is engaged, then it is not going to work in that way. It is going to be an exercise of the resentencing discretion which is exercised. In reality, it is not a, shall I say, proviso against which you do not get involved in the exercise. So at that point we say that that passage – we say the third sentence is not correct, and I am sorry for accepting the reverse proposition a short time ago. But what was accepted by Simpson and settled in Douar and Baxter was that the court has regard to the circumstances as they exist at the time of the appeal - - -
BELL J: Yes.
MR GAME: - - - Simpson is not controversial in that respect.
BELL J: Do you suggest that in making the assessment of the merits of the application in both Kentwell and O’Grady, the Court of Criminal Appeal did not have regard to material that postdated the sentence?
MR GAME: We do say that. We also say that – we say they did not embark in a meaningful way on the section 6(3) exercise at all and it is not put against us that they did. That is to say, they said they were doing the thing in a summary way.
BELL J: Yes.
MR GAME: An examination of their reasons discloses that they were doing it in a summary way.
BELL J: Accepting that the court did not embark on an exercise as if it were the determination of the appeal, it is just not clear to me that their Honours were not following that line of authority dating to Simpson which involves a recognition that circumstances post the original sentence would have been a matter to take into account.
MR GAME: One could assume that they accepted the authority of those cases.
BELL J: Yes.
MR GAME: But they did not do the exercise that those cases required. For example, in Kentwell one would see a completely different set of thinking because his culpability had to be reassessed in the light of the upholding of the grounds relating to his mental illness which cut across all the sentences. So you would see a very different set of reasons if the court was actually – and including the material that showed what he was doing in gaol, that he was on medication, that he was addressing his – all of those things would be brought to bear.
BELL J: I understand that, Mr Game. The matter I am really raising with you, appreciating that the exercise that the court said it was engaged in, involved what might be described as a summary assessment of merit, I am just raising with you whether it is clear that their Honours put to one side any regard for material that was before them on the application for the extension touching on circumstances post-sentence.
MR GAME: They do not deal with it at all.
BELL J: I see. All right.
MR GAME: It is more clear in O’Grady in that respect because in O’Grady they speak purely to what happened. It is a simpler kind of case. But in Kentwell – in neither case – we say that is one of the reasons why you would accept that they really did do it, just in a summary fashion. Now, if one comes to section 10, which is the provision dealing with extension of time, then section 10(1)(b) deals with extension of time to appeal. Now, needless to say, that provision can cover a wealth of circumstances. It can cover a case where an appeal is a few days out of time, many years of out of time, no merit, substantial merit, legal advice against, and so forth. But that informs, just as was said in Weiss about the proviso - that informs whether or not - how one can define the discretion. The provision does not have the language of substantial injustice or exceptional circumstances or anything like that.
FRENCH CJ: We are dealing with a subset of cases of its application involving conceded error.
MR GAME: That is correct. Now, conceded error, but not only conceded error – what, in the cases, is referred to as conceded material error – that is to say, could affect the outcome. Again, according to the Rules, an extension of time could be granted by a registrar or a single judge so it would be a very strange exercise if on an extension of time a registrar or a single judge was making predictions about what might happen with respect to the exercise of the proviso, or the exercise of discretion under section 6(3).
HAYNE J: But are not the prospects of an appeal, if leave is granted, relevant to whether leave should be granted to extend time?
MR GAME: Undoubtedly – sorry, undoubtedly, it is liable to be a relevant factor but there may be circumstances where, for example, the delay is relatively short and the explanation is good where you would not look at the merits at all. So the circumstances will differ but, as a general proposition, yes, your Honour. But one cannot create a test for leave that states, shall I say, an inspection as to the merits higher than you are ultimately going to determine the appeal because then you create a - - -
FRENCH CJ: Does conceded material error conclude the question of prospects of success?
MR GAME: Yes, your Honour.
FRENCH CJ: So what is left?
MR GAME: In this situation, nothing. In this situation, there is nothing, but these two appellants, who are both sentenced offenders still serving their sentences with one and a half or up to two and a half years yet to serve, both of them had had legal advice and both of them had been refused – sorry, both had been refused legal aid and that means in New South Wales that a lawyer had said that there were no reasonable prospects of success. So there was nothing more, unless they were going to press on themselves, there was nothing more that either of these two appellants could have done.
BELL J: Can I just come back to the question of what is involved in an assessment of merit respecting a sentence appeal where material error is conceded? Is the court not directed to the ultimate outcome in the sense of the prospects that upon leave being granted and the appeal being determined there are reasonable prospects that the appellant will be better off by reason that he or she gets a lesser sentence?
MR GAME: Yes, to the extent that there is a “might” in that, because you are only at the gateway.
BELL J: Yes. But the gateway - - -
MR GAME: So it is a “might”, it is not a - - -
BELL J: The gateway looks to the ultimate conclusion, namely, that one has prospects of persuading the court that a lesser sentence is warranted in law.
MR GAME: Yes, but, your Honour, in the phrase “material error”, the idea of it might affect favourably the outcome is built so you have actually got that. We would say at the point of determining an extension of time - it is a bit different where there is a conceded error, but one simply has to satisfy the court about the arguability, whether the grounds are reasonably – whatever phrase one uses, whether they are reasonably arguable, whether they have reasonable prospects, but it is predictive and because it is predictive it has to be a limited exercise. But you cannot look to the outcome of the appeal on a leave application and then do it in a summary manner.
HAYNE J: Why can you not assess prospects summarily?
MR GAME: Yes, you could assess prospects summarily, but what is happening here is different. You are actually now looking to – you are determining – you are making a person that satisfied the court at a summary level that the outcome ultimately will be different, without actually assessing the material, without a full assessment of the material. At the point of extension of time you would not be doing any of this in this way. You would be determining whether or not there had been a reasonable explanation, whether the grounds were arguable, and there may be other factors in conviction appeals, or other circumstances of lengthy delay, but in a circumstance – in a case like this – to do this exercise properly you would not be going through this exercise in this way. So what has happened here is unsatisfactory as a way of dealing with extension of time, but it is unsatisfactory as a way of dealing with an appeal, so it is neither.
BELL J: Let us assume for a moment a sentence imposed in relation to a single offence that on its face is plainly exceedingly lenient, it is a surprise perhaps, on looking at the sentence, that it did not attract a Crown appeal; for whatever reason, it did not. On the conceded error, you would say on your submission that the court could not exercise its discretion not to grant the extension because of a “Muldrock error”, it being accepted that a “Muldrock error” is an error of a material kind.
MR GAME: Yes, that would be a very strange circumstance, because a “Muldrock error” is an error of a particular kind affecting how the court assesses the particular circumstances. But in the case that you posit, your Honour, I would not actually challenge the notion that you could have regard to the prospects of the outcome. As I say, it is only predictive, and because it is only predictive, you have to limit the test that you are applying. The example can be seen quite well with respect to the way in which the court is now applying this in respect of the proviso in conviction appeals, in Miles, and if I perhaps just show you what has happened in Miles. One can see that this predictive exercise then takes you to an assessment of whether or not it is likely that the proviso would be applied.
If one looks at Miles [2014] NSWCCA 72, at paragraphs 55 through to 63, one sees that not only is this test now applied to what are called these “change of law” cases, it is applied to all sentence appeals and it is applied to criminal conviction appeals. That is a most unsatisfactory inversion of the process. What it means is that on a conviction appeal you would be asking yourself whether or not the court is likely to be satisfied that there is no substantial miscarriage of justice, a matter on which the Crown bears the onus. The whole thing falls apart if you introduce those kind of steps into what is actually just a preliminary step in the process.
FRENCH CJ: So conceded material error leads to the conclusion that the appeal has prospects of success; it could lead to a different outcome. It does not answer the question whether it would lead to a different outcome.
MR GAME: That is right.
FRENCH CJ: Is there anything in that question which is proper for consideration at the point of an application for extension of time?
MR GAME: In the question - - -
FRENCH CJ: Whether it would lead.
MR GAME: No.
FRENCH CJ: You say it is enough that it could lead to a different outcome, and then the rest is all about the delay aspect, is it?
MR GAME: That is right.
HAYNE J: Would it not be open to the Court of Criminal Appeal on a leave application to conclude in the particular facts of a case that having regard to the facts as found by verdict or admitted by plea, plus the proper application of principle, including proper application of Muldrock principle, the likelihood is, the probability is, the certainty is – there may be a debate about which of those – the offender would still be sentenced to no less a term?
MR GAME: We say that if one goes down that track, one either does the section 6(3) exercise in its entirety or one does it in a very limited way as a predictive exercise at the outside. But the proposition that your Honour is putting to me really amounts – you would only get to that point if you actually went through the entire exercise of resentencing. You would only know – so in Kentwell you would only know if you examined the question of culpability, you examined the individual sentences, you worked out questions of accumulation and concurrency and then you said, well - - -
HAYNE J: That is a particular proposition, the content of which I well understand, that in a particular case you may say that the Court of Criminal Appeal could not, taking the set of facts that it is confronted with, form the view on that set of facts that no lesser sentence will be passed. But that obscuring a question about the degree of intensity of the conclusion - and we are, I fear, at risk of attempting to devise a formula of universal application when, in truth, we have a discretion, the particular exercise of which will be very fact specific because the relevant test might, perhaps, be better expressed as whether it is in the interests of justice that time be extended.
MR GAME: Yes. But if you apply through the spectacles of whether it is in the interests of justice, then you are putting the considerations that your Honour has just put to me in their proper place. You are not creating what really is a rigid – sorry, I say a rigid – a process which these cases have created and have been applied in now 30 more, so other cases, to similar effect and now are being applied as a way of dealing with out-of-time sentence appeals. There is only one – one can only state one proposition. I say one can only state one proposition – the specificity of it is going to be the crucial thing in every case, but the test can only be stated in general terms.
FRENCH CJ: Well, does that mean that once you get past the “could lead to a different result” that it is appropriate for the Court to undertake a kind of probabilistic assessment of outcome, almost a risk management exercise in relation to the possibility of injustice?
MR GAME: Well, once you have reached the proposition that it could receive a favourable outcome then normally that is going to be more than enough to determine the question.
FRENCH CJ: Well, could and would are two different questions.
MR GAME: Yes.
FRENCH CJ: Then there is something in between about probabilities which, I think, Justice Hayne has put to you.
MR GAME: I would not put a proposition that would necessarily exclude that from consideration in every case. But in the ordinary case you would not engage in that exercise. But these cases are extant sentences quite unlike, for example, cases like Unger or Gregory where, in Gregory, an appeal 25 years out of time to raise a point determined in this Court in Carr with a sentence completely served in the late 1980s. So that is where, say, principles of finality start to bite. In terms of prospects, once you have a case that is – these cases are actually, we would submit, quite straightforward in the way in which the question of extension should be dealt with.
GAGELER J: Mr Game, is it your case that every case of a “Muldrock error” being identified is a case of material error in the sense that you use that terminology?
MR GAME: Yes, in substance, but there could be a “Muldrock error” where the judge made an error in describing how they went about the exercise, but that the sentence itself was, shall I say, so manifestly appropriate, then you might, but, yes, basically I do say that.
GAGELER J: So, in your terminology you use material error interchangeably with legal error. Is that right?
MR GAME: No, legal error might not be material error, so if a judge made a technical legal error that had no potential to have an effect on the sentence – so, for example, I mean, one of the cases, one of the grounds there was an issue about whether or not – issue about special circumstances in one of these cases did not have any – could not have had any impact on sentence, so there could be a legal error that was not material, so it is error that could affect the outcome, is – but will normally be a legal error that could affect the outcome.
GAGELER J: But without any evaluation of the actual facts.
MR GAME: Without any further evaluation, yes. But if you were just trying to get through the door you are going to have to make things incremental, you are going to – getting to the door and then saying you have got to get through the door and you have got to do this and this and this and this and this, then you have inverted the process.
HAYNE J: Does not his Honour’s question invite careful attention to this set of possibilities? In assessing prospects you observe, because it is admitted, that there has been a legal error.
MR GAME: Yes.
HAYNE J: In assessing prospects there are at least three possible forms of assessment, I think, where the Court of Criminal Appeal could say there will be no different result, that is a positive prediction, no different result; alternatively, the Court of Criminal Appeal could say probably no different result, and I recognise there are different degrees of intensity that you might build into that; or the third, which I, maybe rightly or wrongly, had understood to be your case, where the Court of Criminal Appeal says the appellant, the applicant, has not shown that he would get a different result. Now, I think there is a radical difference between three and both one and two, I am not sure, but his Honour’s questions to you about legal error and consequences of legal error seem to me to at least invite attention to those further issues, but is that so?
MR GAME: Yes, your Honour, but, again, I am not going to answer this question very well, but the further you get into the predictive process the more things you have to bring to account and at the second level of section 6(3) you have to bring everything to account. So at that point either you are determining the appeal or you are not. The court, in these cases, is avowedly not determining the appeal. They are determining something else because you did not get through the door. But you did not get through the door because you did not satisfy us on a summary look at the ultimate result that you would get a different sentence.
Now, at that point we have been cut out at a procedural step of the court exercising its discretion under section 6(3) even though in the process of determining whether or not we should get leave we have succeeded all the way to that point.
FRENCH CJ: Does the conclusion that there will be no different result collapse into the proposition that there is no material error?
MR GAME: Yes.
FRENCH CJ: So we are not in that territory here?
MR GAME: Well, actually, material error has been defined as there might be some different outcomes.
FRENCH CJ: What I say could be, but if you say there will not be, you are excluding that possibility.
MR GAME: Yes. I am not sure that I have fully answered either Justice Gageler’s question or Justice Hayne’s question, but I will press on for the moment.
KEANE J: Mr Game, given the debate, can I ask you, do you accept that it would be an available outcome, an available conclusion, for a court asked to exercise the 10(1)(b) discretion, to conclude in these terms: given the unsatisfactory aspects of the explanation for the delay and the length of the delay, the prospects that a different and better result for the applicant in terms of his or her sentence are not such as to warrant in the interests of justice the grant of an extension of time?
MR GAME: In another case, yes, but that does not apply to what happened in these - - -
KEANE J: You say that is because in this case the court addressed the question of whether your clients had demonstrated that they had suffered a substantial injustice in that they had been subjected to a sentence that was affected by a conceded error?
MR GAME: Yes, of the kind – sorry, a conceded error of the kind that may bring about a lesser sentence, because that is built into the word “material”. But can I say this, your Honour? We say that the court in both of these cases, when they thought that the explanations were unsatisfactory, was engaging – there is clear error in that because their explanations were quite satisfactory. It is difficult to think what better explanation they could have than that they were – it is the same as in Bestel where it is said in the English cases that wrong legal advice is the reason. It actually turns out, although you would not necessarily call it wrong legal advice, that that is what it amounts to because Legal Aid, applying a merit test, had refused these people aid.
Legal Aid had a problem because they had a lot of clients in this position and they had to go back and re-advise them on the question of merit. So it was actually – these two individuals were in a situation where that part of the State which determines, shall I say, whether or not their appeals had merit had said no, one time, and then after the decision in Muldrock, because of the danger of having given wrong legal advice, had to go back and look at the cases again. So the two individuals were blameless in terms of their position and they were serving their sentences.
BELL J: That submission applies in relation to grounds I think 2, 3 and 4 for Mr Kentwell, you say?
MR GAME: Yes. Sorry, yes, but for 2, 3 and 4 the fact – some lawyer has said that he did not have grounds in respect of his mental illness, so what was he to do? That is no simple matter. But once you accepted Dr Allnutt’s evidence, well, the whole thing looked completely different and there were different sentencing considerations would apply like, for example, prospects of rehabilitation, what he would be like on release, and so forth, very different - - -
BELL J: The Court of Criminal Appeal was alive to that. I mean, the Court of Criminal Appeal - - -
MR GAME: They upheld the ground.
BELL J: Yes.
MR GAME: But that went by the board when they came to that exercise.
BELL J: Yes.
MR GAME: They made no mention of it except to say in a sentence a reference to his mental illness, but not to assess culpability, and this is a case where that finding actually goes into the heart of the findings on culpability. It is not just a subjective factor.
So in the submissions then in our hand-up at the bottom of page - one that I have not really dealt with, Abdul, and I will do so - could your Honours perhaps turn to – at paragraph 50. Sorry, if one just goes back to paragraph 35 one sees that the Crown was relying on Etchell at that point and they were not relying on what Justice Leeming had said in Montero, which was that one had to establish exceptional circumstances. Now, in Etchell, one sees in this judgment – it is extracted in this judgment in paragraphs 24 and 25, where it is said:
I recognise that “exceptional circumstances” are not, in so many words, expressly made part of the statutory regime -
In Arja, which is referred to there, Justice Basten had said that that is no part of the test. But then there is the critical sentence there. Justice Campbell said:
Even so, it seems to me that the need to give weight to the factors I have just mentioned in operating the statutory scheme must call for something beyond the presence of factors that would be sufficient to result in the sentence being varied -
Well, that cannot mean something beyond being a reference to “we are bound to succeed”, or “we will handsomely succeed” because of the next paragraph. It says to consider the grounds in a “more summary fashion”. Then, it goes over the page:
the particular reasons the Applicant gives to explain the delay.
So the “something more” must relate to the explanation if one is only having a summary look at the grounds. There is no substantial injustice test there, but nor is there a summary addressing of the ultimate outcome under section 6(3) and the way in which it was adopted in this case. Then one sees, turning over to paragraphs 50 to 53, Justice Hoeben accepted no justification for exceptional circumstances test then said that Young and Arja are persuasive. Young and Arja state the principle that we are relying upon. Then it said a better test. But what actually follows is not, we have just seen, it is not what Justice Campbell said in Etchell.
Then it is said that these are to be dealt with by analogy to English “change of law” cases. In Sinkovich, the Court of Appeal scotched the idea that these were “change of law” cases; Sinkovich had been heard but not yet handed down at the time of these applications. I will come to the English cases in a moment. It is said that what happened in Muldrock is analogous to those cases.
BELL J: These are not “change of law” cases, but they are cases in which the sentencing judge applied as a principle the approach authoritatively at the time laid down by the Court of Criminal Appeal with respect to the statutory provision, so that they have some - - -
MR GAME: It was a correction. They were extant sentences, and these people might have been Muldrock, except for the fact that some other case went up. Calling them “change of law” cases really buries what – we would say one should avoid the idea of “change of law” cases as a special category altogether. This principle came in under what is called “change of law” cases, and as we have seen in Miles, it has now being applied to everything.
But to pick out a category of cases and call them “change of law” cases creates the very, what I would describe as “mess”, that the English Court of Appeal has got itself into in the “change of law” cases where you have the Court of Appeal ticking off the criminal review division for sending them cases under their provisions and calling for their appeal provisions to be amended so that they can knock out the cases.
Then there is the Supreme Court in the latest case of R v R saying “it is none of our business to be getting into this”. But in those “change of law” cases, you see what I would describe as co-lateral inquiries, like the person might have got convicted of something different, or the Crown might have amended the indictment, all of which does not sit well with the basic underlying provisions, and we would say as a way of going about this is to be eschewed completely. Then in this passage at 53, one sees:
when considering an application for extension of time based on “Muldrock error” . . . the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether –
then it is as if it is an add-on –
if an extension of time were refused, substantial injustice would result.
So that is different again. In the English test, you have got all these factors that, shall I say, weigh against the applicant, and then they have got to climb this hurdle. The test is not a sensible test – it is why you really need to go back to a single proposition. Things like, for example, “the interests of the community” and so forth, they are much more important in cases, for example, like Gregory where you have got a point raised 20 years out of time where the person served the sentence, where there was a development in the law, but in these situations the community has no interest in – I am not saying it is all completely irrelevant – but one thing, we accept, that might be relevant is a victim’s concern about whether or not those things – we are not excluding that from consideration, but this is not an appropriate test. What one sees is a reference to Etchell and the strength of the proposed appeal, but what Etchell referred to was the strength of the proposed grounds, not the outcome.
So, in this case at 54 – and this is a point we make about both Kentwell and O’Grady – it is said that the explanation for the delay is not compelling. But really these people have got – unless they are going to take their unrepresented appeals to the Court of Criminal Appeal that is the end of it for them when they have been knocked down on the legal aid test.
Then there is a reference to section 6(2) and Baxter and Douar but I am going to take your Honours from there to Kentwell and O’Grady, themselves, because one sees that the exercise is done in a summary way as the Court says. So that is all I wanted to say about Abdul and we pick up the points in paragraph 3 of the outline.
In paragraph 4 we pick up what – I do not wish to take the Court through the English cases but those are the basic propositions we wanted to put about and we have put them in our reply. The English have both different statutory content – their criminal review process is different. The whole way in which the appeals are assessed is different. It is part of the Rules of Court actually that gets the process of assessing merit straightaway and these cases have been only applied, this test has only been applied to a small class of cases and with problems that have emerged from it.
BELL J: In Abdul they took it from Bestel, did they not?
MR GAME: Yes, your Honour.
BELL J: Yes.
HAYNE J: All these sentencing practices – English appellate sentencing practice has differed so markedly from Australian practice for so long as the English fail to have a contradictor.
MR GAME: Yes.
HAYNE J: The guidance available is, I think, limited.
MR GAME: Yes. But there is one thing said in Bestel is that the Court in all the cases has examined the underlying merits of those “change of law” cases.
HAYNE J: The category “change of law” case is a very inclusive category that might require a little unpacking. There are changes and changes.
MR GAME: Yes, but we eschew the whole notion of apply on that test.
HAYNE J: I understand that.
MR GAME: But a development in the common law such as occurred in Carr v The Queen is a very different thing than a correction in relation to a substantial number of offenders serving extant sentences. Although Muldrock looks like it is one thing, there were other challenges to what was happening in respect of the standard non-parole period and they were all unsuccessful in cases like Knight and Bivuana and Cvitan and other cases. So the idea of saying Muldrock – Muldrock did change everything but there was a process that was going on and Quinn and Green, in fact, was refused leave on a Muldrock point, had that argument in it.
At paragraph 8 of our outline I set out the relevant passages with respect to the explanations for the delay. If I can then take the Court to Kentwell – at page 273 is where what it is said to be the explanation for the delay is set out, but if you go to 259 you see that a notice of intention of appeal was filed and he was refused aid. So when one comes, then to page 287 of Kentwell one sees this test stated from Muldrock - - -
BELL J: I am sorry, what page is this?
MR GAME: Page 287 of the appeal book in Kentwell; sorry, your Honour.
FRENCH CJ: The test stated from Abdul.
MR GAME: Sorry, your Honour?
FRENCH CJ: You refer to a test stated from Muldrock, you meant a reference to Abdul.
MR GAME: Sorry, yes, at 287 the Abdul test is set out, so that is what we just saw in looking at Abdul, but that passage in 68 has got, in our submission, its own problems because, first of all, it is said that there is no satisfactory explanation for the delay in respect of grounds (2), (3) and (4), but his explanation is complete, which was he was refused legal aid. Then various things are cited in relation to possible effect, “It would also offend the principle of finality.” It is as though finality has got some extra work to do, but that is kind of concerns about the victim, concerns about the comity, those are things that kind of are inside the idea of finality, but it is said:
The majority of these considerations tend against granting an extension of time.
But the true situation was that the position was completely overwhelming in terms of those considerations, he had been refused legal aid, he was serving a sentence, which receives no mention, and the prospect of – the Court has already, earlier in the judgment, found material error, so that is problematic. Now, paragraph 69 then - - -
FRENCH CJ: Can I just ask, is there any further elaboration of the possibility of impact on a victim?
MR GAME: No, your Honour. But that is the only thing, and it is only a possibility. In terms of impact on the victim, again it is a very different situation than a victim having to come to court and give evidence, again an adjustment to a sentence for legal error. Now, so then one gets to paragraph 69 and it is said:
However, for the reasons which have been outlined, a number of material errors have been established.
Now, we saw, your Honours, that the material errors at least extended to the mental illness, which was back at page 283, and the critical part was in the acceptance of Dr Allnutt, which was, in effect, at 283, that Mr Kentwell was delusional at the time of the offences and was suffering from a persisting psychotic disorder independently of his methamphetamine addiction. If one goes back - I will not take your Honours to it - to the remarks on sentence, you could pretty much put them to one side, you had to start again.
BELL J: Was Dr Allnutt called?
MR GAME: No, his report was tendered on the sentence proceedings. There were two reports, one was given on fitness and one was given on sentence.
BELL J: So that error having been identified in relation to the evidence respecting the mental health it would have been a question of the conclusions that the Court of Criminal Appeal drew, which their Honours had identified inconsistency in the primary judge’s acceptance of Dr Allnutt’s report and failure to carry that through into the sentencing exercise, all of this would have been opened up.
MR GAME: Yes.
BELL J: Yes, and your point is it is done in a very summary way.
MR GAME: That is right, and only by reference to what might be described as the objective characteristics of the offending; you know, it was terrible, but those elements are described. But the proposition that you have established material error, and then in the next sentence in 69 you go on to assess the prospects of success, and this being done, as the court said, in a summary manner, the whole process, there are several non-sequiturs in that. If you found material error, why are you looking at the prospects of success and then why are you then looking at the ultimate outcome in a summary way?
So what has happened is in those steps taken we have been chopped out of the process because we did not get the appeal determined in accordance with section 6(3), but all happening at a prior point of extension of time. So then there we see what occurs. Then we get to the end of Kentwell and it says:
Although material error has been established, none of the matters advanced on behalf of the applicant, including the applicant’s mental illness, support a conclusion that there has been substantial injustice arising out of the sentence imposed, or that some other sentence is warranted in law.
Now, the further point I wanted to make there is this, that there is no – not at this time, but now you can get aggregate sentences. There was no sentence of 12 years with a non-parole period of eight. You actually had to look at the – the mandate under section 6(3) is to look at the individual sentences and their effect and then cumulatively do so. So what that shows is that they are just having a broad look at the whole thing. The exercise in this case would be – and it is four years on. It is four years on from the offence. You have got the “Muldrock errors” which relate to the two sentences which are extant, but you have got the mental illness errors which relate to all the sentences which have been served. That is not irrelevant when you come to look at what you do with the Muldrock sentences. So again what takes place at 90 is indicative that indeed it is just being done in a summary way.
We have referred to a case in the outline, Arnaout, at paragraph (12)iii. The point I am just making is at (12)iii. I will not take your Honours to the case, but Justice Basten in Arnaout makes the point which I have just made. But there are other judges who take different views and your Honour Justice Bell is cited in that case as not having expressed a view about the subject in some other case.
BELL J: This is the question of whether 6(3), the exercise looks at each sentence, and then of course the court has regard to considerations of totality and the degree to which a sentence might be cumulated?
MR GAME: Yes.
BELL J: Yes.
MR GAME: But the point is this. Inevitably in a case such as this where you have two different occasions of offending, if I can put it that way, you have I think four sentences, but you are going to have to look at the individual sentences. There is no sentence of 12 years with a non-parole period of eight.
BELL J: Yes.
MR GAME: So that is the point I am making.
FRENCH CJ: In paragraph 90, the statement that nothing supports the conclusion “that some other sentence is warranted in law”, I presume you say that does not answer the 6(3) question?
MR GAME: That is right.
FRENCH CJ: Why is that?
MR GAME: Well, because the court has not carried out the exercise - - -
FRENCH CJ: Because it has done it in a summary way?
MR GAME: Yes, the court has not carried out – well, it brings one back to the thing that Justice Hayne picked me up on first thing this morning, which is, it is not an unless, it is not a proviso, it is you have to engage in the process of doing it. So the other thing is it seems that the way this discretion, as it were, works, we saw back at 69 a number of material errors had been established, and then 90, material errors had been established. It is as though you have put them to one side. There is some awkwardness about the way in which this is actually being done, but if you do the exercise properly in accordance with AB, that goes by the board. You have got material error, then you have got to resentence.
HAYNE J: Well, it invites attention to what is the CCA meaning when it says that the error is material. It says that there are these errors, they are material errors. In what sense is the Court of Criminal Appeal attaching the word “material” to error?
MR GAME: I think what they are saying is that it is material error in the sense stated by Justice Latham in Baxter, which is, it might affect the outcome. I have not put this submission before, but I should put it now, which is that the explanation for what appears in 90 and 69 about:
or that some other sentence is warranted in law.
On reflection, I should have put, and I now put, that that picks up the error in that sentence in Simpson that has a proviso in it, so that there is a deeper problem in that exercise there. It is not that I am adopting what Justice Latham said, I am just saying that is what the court said.
So that is all I wanted to say about Kentwell, and I can deal fairly briefly with what I wanted to separately say about O’Grady. Now, in O’Grady, if one goes to the – we have dealt in our submissions in O’Grady with the relevant material, and I will not take your Honours there now. They are in our submissions in-chief at 41 to 43, and we have set that out in the outline there. In O’Grady, if I could just take you back to paragraph 8 of our submissions – and I will not go through the whole thing – but if one chases through what is at appeal book 183 and 188 - - -
HAYNE J: What par of your submissions are you picking up?
MR GAME: In the hand up today - - -
HAYNE J: In the hand up; sorry.
MR GAME: - - - if I could just go back to paragraph 8. So we have chased through there what the evidence was about the delay, it is at 183 and 188 in affidavits. The effect of it is, he filed a notice of intention to appeal against conviction and sentence, he was refused legal aid, and then private solicitors did a conviction appeal for him.
When the court at 193 deals with the delay – legal aid was refused, and I think I just said that. Back at 193 is what is said to be the evidence, but as I said, the affidavit of Ruth Chalmers discloses beyond question at paragraph 12 that he applied for and was refused aid on a sentence appeal.
We say the picture is a little bit more complicated, but he is in the same boat as Mr Kentwell in terms of whether his explanation – except that Kentwell had those other three – so then at page 198 of the appeal book, it is said – first, the same passage is extracted from Abdul, and then one sees a reference to possible trauma to the victim. Then it is said:
That said, such an order would offend the principle of finality –
We say again, one has to actually look at what it is one is talking about in the individual case other than just saying trauma is a factor inside finality. But the next sentence –
In terms of their effect upon the application for an extension of time, all of these matters are fairly evenly balanced –
but we say there must be something wrong there because they have not referred to the fact that he is serving a sentence. They have found material error. His sentence could be affected by the upholding of the appeal, and he has explained the delay. We say what else is there; what is finely balanced about that? What that indicates is there is an error in describing what is said to be all of these matters. It is not a proper exercise of a discretion and that takes me back to what I said before. This statement of the test in Abdul is quite unbalanced. I have made that point.
The only further points are paragraph 32 is the same paragraph as we saw just a short time ago in Kentwell, and then we see what is described as the section 6(3) exercise. What we say is that all of that is done in the past tense; it is all done retrospectively, things had moved on and there was a good deal of evidence about his circumstances in custody – I will just give your Honours a reference; his affidavit is set out at 179. That is not an exercise in resentencing. May I add this? The court said at the beginning of the judgment that the standard non-parole period was eight years; in fact, it is seven - - -
BELL J: But elsewhere – I cannot recall where – they refer to the correct statement in the sentencing judge’s reasons.
MR GAME: They do, but we would say that is not a “get out of gaol” card, your Honour, because that is just an extraction of the – I am going to try and make this point good – paragraph 24 is set out at 197, but it makes a lot of difference, and I will explain why in a moment by going back to what the judge did on sentence. If you go back to pages 96 and 97 – this is the end of the remarks on sentence. At paragraph 22, the judge says:
but because this matter is in the middle of the range of objective seriousness, the sentence is largely governed by that finding –
So the thing that is driving this sentence is the standard non-parole period. What happens then is – and can I say, a head sentence of nine – in New South Wales, unless you find special circumstances, the non-parole period has to be 75 per cent of the sentence. Nine years, three months is the standard non-parole period, plus a third which produces 75 per cent, which means that when one gets to the sentence of nine years with a non-parole period of five and a half, what has happened is he has got the standard non-parole period and it has been pulled a bit back for special circumstances, but it makes a lot of difference to get from five and a half to seven to five and a half to eight when you are looking at these relativities.
So it actually bites in a significant way and it would make a real – but my point, your Honours is this – that this is the danger in doing this section 6(3) thing in a summary fashion. If you resentenced, you would go through this exercise. You would work out these things. You would work out what you did with special circumstances. You would have regard to the
new material and that is not what has occurred. So we say that the same point is made but just in a slightly different context in respect of O’Grady. That is what we say about those.
That really brings me to the end of my submissions. After the appeal we would ask for an order that we provide, say, within 14 days a summary of the relevant cases from the other States. We have been knocked out on a procedural basis but, in effect, under section 37 of the Judiciary Act the appropriate order we would say is that the orders be set aside if we succeed and the matter remitted to the court for further consideration.
HAYNE J: For further consideration of what, Mr Game?
MR GAME: So, we would invite the Court – I had better get this right – we would invite the Court to grant the extension of time but beyond that the matter can be remitted to the Court of Criminal Appeal.
HAYNE J: But you seek to have us make the order which you say the Court of Criminal Appeal should have made, namely, time extended.
MR GAME: Yes, your Honour.
FRENCH CJ: This goes back to them for consideration of the appeal.
MR GAME: Determination of the appeal – leave and the appeal. It would follow – I might be asking for too much – it would follow, we would submit, that we would get leave but that is really only a detail because the matter will have to go back to be argued as a matter of substance. If the Court makes an order – setting aside the order and granting leave, then that puts us in the position in the Court of Criminal Appeal in which, we say, we should be put.
FRENCH CJ: But what other argument would be involved in the leave to appeal aspect?
MR GAME: Nothing, that is why I am saying, it would necessarily follow.
FRENCH CJ: All right, thank you.
MR GAME: If the Court pleases.
FRENCH CJ: Yes, Mr Pickering?
MR PICKERING: Do your Honours have a copy of our - - -
FRENCH CJ: Yes.
MR PICKERING: Your Honours, can I start with a couple of basic propositions and then work backward from that to explain our position? An applicant in the position of seeking an extension of time should not be in the same position as someone who is already within time and simply seeking leave to appeal. Within that concept therefore, a person who is within time, and is seeking leave to appeal on sentence, merely has to demonstrate that they have a ground of appeal of which has a material error, and therefore that they can overcome leave.
So the appellant suggests that the test merely should just be looking at the ground of appeal and whether there is a material error in many ways you are putting that person who is seeking an extension of time in, indeed, the exact same position as someone who has actually appealed within time.
As much as the point in – and if I could make that point by referring your Honours to a decision on our list of authorities of WA v The Queen [2014] NSWCCA 92 at paragraph 14 – and your Honours will actually see at paragraph 13 there is a reference to the Court of Criminal Appeal being aware that special leave had been granted in both Kentwell and O’Grady, and then the Court of Criminal Appeal outlined five reasons why it was going to continue to hear extensions of time despite special leave being granted. The point that I seek to make, firstly, is referred to as the fifth point, near the midway point of paragraph 14:
Fifthly, to the extent that it is contended that an application requiring a substantial extension of time should be treated identically to one brought within the time limits imposed by the Legislature –
and they say that is a proposition put by the appellant here –
we would respectfully disagree.
Then outlining the relevant quote in Darwiche, and then going on to paragraph 15, which I will not read out to your Honours. In our submission, that is an important point, firstly, to make. So therefore, if one is looking at what else should go into the equation in this decision of whether to give an extension of time, there are, in the respondent’s submission, two important factors.
One of them was demonstrated by Justice Bell’s question to Mr Game about the situation of where there may be a “Muldrock error”, but if the sentence was - seemingly on the face of it – potentially, even manifestly inadequate, even though there was not a Crown appeal, it would seem an unusual approach that the Court of Criminal Appeal in this extension of time would not have some predictive look at what would be the likely outcome.
BELL J: I think Mr Game accepted that in the exercise of the discretion under section 10 in a case of the kind I raised with him, it might be that the result would be, notwithstanding “Muldrock error”, that the extension would be refused. But the real issue that you have to deal with is the discretion under section 10 on the face of it is an unfettered one and a test has been now imported requiring substantial injustice.
MR PICKERING: Can I go then straight to that aspect? I want to deal with firstly the interests of justice before then explaining the substantial part of that test and seeking to justify it. Your Honours will of course have been taken to Abdul and if I could take your Honours to an additional paragraph in Abdul at paragraph 51. Your Honours will see at paragraph 51 of Abdul that the court was making clear that:
The interests of justice must take into account not only the interests of the applicant, but also those of the community represented by the Crown and of the administration of the law generally. The prospect of a sentence being re-opened long after the event may impact adversely upon victims of crime, particularly as here where the crime involves the sexual violation of the victim.
In my submission, there was nothing new about that in Abdul because when one looks back at Gregory – and if I could take your Honours to the decision of Gregory [2002] NSWCCA 199 at paragraph 41, one sees there at paragraph 41 almost an identical comment to paragraph 51 which then led into paragraph 53 of Abdul, that being that at 41:
As I have said, an important factor in a decision as to whether an extension of time should be granted is whether the interests of justice required it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions.
HAYNE J: That was a conviction case, not a sentence case.
MR PICKERING: I accept that, your Honour, but when one looks then at Etchell – and if I could take your Honours to Etchell which Mr Game also did at Australian Criminal Law Reports and specifically take your Honours to page 144 of those reports and paragraph 24, Etchell of course being a sentence case looking at an aggravating feature that should not have been found, the court took up that paragraph that directly comes from paragraph 41 of Gregory of saying:
Even so, the “powerful considerations supporting the finality of judicial decisions”, to which Hodgson JA referred, apply to applications to extend the time for appeal against sentence -
making the point that it does equally apply in a sentence matter, and then goes on, and I will not read the rest of that.
Can I then make an important point about this need to look further than just the grounds of appeal, because if your Honours look at Etchell then at paragraph 54, which is on page 149 of the Australian Criminal Law Reports, and about halfway through that paragraph where his Honour begins:
In my view, no material difference to the sentence would result from the judge having stated the position accurately, rather than by saying “the victims in some of the offences were elderly people”.
Nothing in this examination of the proposed grounds of appeal shows that an appeal would have sufficient prospects of success -
In my submission, he is doing more there than just simply looking at whether the ground of appeal could be successful, because he has accepted that the aggravating feature should not have been found, that being that the victim was vulnerable, it is making some predictive outcome of ultimately what the sentence appeal would be successful, and although not termed in the concept of using the language of 6(3) it could only be that concept of ultimately looking at what the sentence would be to be imposed, so it had a predictive aspect to it, even though there was a clear error on its face in relation to the aggravating feature.
HAYNE J: Well, accepting that prospects of success of an intended appeal necessarily involves prediction, what exactly is the content of the prediction that is relevant in a sentence appeal of this kind where it is accepted that the sentencing judge misapplied principle?
MR PICKERING: Your Honours, if I could take you back to Abdul in answering that question and take your Honours to paragraph 55, and then onwards? Your Honours will see at paragraphs 55, 56, 57 and 58 of Abdul is an explanation of what the court is doing in a predictive way, albeit, and clearly acknowledged in a summary way, so the Court of Criminal Appeal is not pretending to do the full 6(3) test, it is not doing it in the way that you would see it if it was actually doing the 6(3) test, but it is acknowledging that if you are going to do this predictive aspect which the Court of Criminal Appeal is saying is you must, you do it in accordance with what Abdul has outlined there from 55 to 58 which takes up the aspect of Baxter and Douar.
HAYNE J: Now, do you support the proposition, or do you say that Baxter and what preceded Baxter is to be understood as attributing determinative weight to the unless question stated by Chief Justice Spigelman in Douar?
MR PICKERING: Simpson.
HAYNE J: In Simpson, is it?
MR PICKERING: Your Honour, can I take you to two aspects of Baxter which the respondent says is the correct approach in that regard, to answer your Honour? I will firstly take your Honour to Baxter [2007] NSWCCA 237; 173 A Crim R 284 and at page 299, paragraph 86 is the comment by Justice Latham that:
the materiality of the error says nothing about whether the error has in fact operated upon the sentencing discretion. Ultimately, this Court may determine that the error did not have that effect and that the additional material placed before the Court does not warrant a lesser sentence than was imposed below - - -
FRENCH CJ: What does materiality mean then, in the way in which it is used there?
MR PICKERING: Materiality is only talking about the capacity of whether it could have impacted the sentence, not indeed whether in fact it has, so that is all that it is talking about in that context. A similar aspect is seen also in Baxter on page 294 at paragraph 60 where the court specifically said:
To be a material error, it is enough that such error may, as a matter of inference, have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed.
It is talking about a capacity, not in fact about whether it has. “Muldrock error”, whilst it may potentially have a capacity to impact on the sentence, often will have not impermissibly increased the sentence at all or had any impact on the sentence whatsoever. Indeed, many of these Muldrock matters, although the error is conceded by the Crown simply because the judge has expressly made clear they sentenced in a fashion prior to Muldrock, have challenged the concept of whether in fact, looking at the ultimate question, it has truly impacted on the sentence at all. Indeed, that was argued here both in O’Grady and in Kentwell. That is all that is being looked at there. That is when Justice Bellew - - -
HAYNE J: That may suggest that the Crown needs to look very carefully at the concession about material error. To observe that a judge has stated a principle in a fashion that is not in accordance with law is one step. To say that that misstatement of the law affected the outcome is a second and not unimportant step. I would have thought that the expression “material error” accepts both elements, not just one.
MR PICKERING: I hear what your Honour says. I can only argue within the context of how the case was conducted on behalf of us, but - - -
GAGELER J: It is a question of terminology, is it not? I mean, it is not statutory terminology.
MR PICKERING: No.
GAGELER J: We just need to know what you mean when you refer to “material error”. Are you equating a “Muldrock error” with material error? Do you say every “Muldrock error” is a material error? Is that the basis of the concession?
MR PICKERING: Your Honour, the definition I have given from Baxter of just having the potential to have an impact on sentence, or an error on sentence, then yes. But in saying that, I am not conceding in any way, shape or form that because there is “Muldrock error”, it in fact actually impacted on the sentence or led to an impermissible sentence at all. Yes, it is a question of terminology, but that is how Baxter has been used in New South Wales, just looking at the capacity as to whether it would have impacted on sentence, not whether it in fact has. That is why I said the approach had been consistent, if anyone looked through the range of decisions on this, that the Crown was conceding error and conceding that it had a potential capacity in that aspect to be material, but then was arguing under section 6(3) that when one actually looked at the sentence, or looked at the way that the impact of the sentence was, that it made no difference at all, and ultimately that no lesser sentence in law should be imposed.
BELL J: By that you are saying that in some instances a judge might assess the objective seriousness of the offence as being in the mid-range of objective seriousness and proceed to impose a non-parole period well below the standard non-parole period, notwithstanding that assessment and even a reference to waive after a trial, as distinct from a plea of guilty.
MR PICKERING: Yes, yes – and to complete my answer to Justice Gageler, I should also make it clear that there have actually been some examples where the error, in a Muldrock way is so clear, and has led to a sentence that is so clearly wrong – and essentially, manifestly excessive – that the Crown has made a concession in both aspects, both in relation to materiality and also under section 6(3). Some examples of that have been a single indecent assault, which carries a standard non-parole of eight, and a judge expressing at the end of a trial, basically, “I would not have imposed this sentence but I am forced to, because of Way”.
When that came down after Muldrock, it was an impossible situation to suggest that not only was the error material in the capacity looking at Baxter, but in fact, knowing the error, a lesser sentence had to be imposed. So I would not wish to say that in no circumstances has the Crown conceded both the materiality in that aspect but, indeed, that a lesser sentence must have been imposed. Muldrock has created some problems, always in assessing its true impact on a sentence. I accept that.
Going back to your Honour Justice Bell’s question about then what is the need for substantial - your Honour will see in the approach that we have taken in the written submissions that we say that really the “interests of justice” test that is outlined at Abdul 51 and 53, and Gregory at 41, is encompassing, really, the word “substantial”.
All that substantial meant in Abdul – and it should be remembered that Abdul was really just looking at what we said were analogous “change of law” case because of Muldrock – was that it should give greater significance when one looks at the total mix of matters that are to be taken into account, which is outlined at paragraph 53 of Abdul – that finality should be given significant weight. So, the concept of “substantial” was to highlight, in these analogous “change of law” cases, that finality should be given significant weight and that was the concept of “substantial”.
Now, I appreciate Mr Game’s argument that, well, Abdul then leaks into other areas and “substantial” now starts to mean potentially something else. I am just addressing that Abdul was specifically being aimed at dealing with this particular situation in relation to “change of law” cases, and the word “substantial” was, as I said in my submission, dealing with this aspect of finality. But it was not in any way to suggest that merit was not still the major factor in the mix, as much as that was clear in WA, which I referred your Honours to earlier, where the court specifically said that the merits remain the court’s primary consideration.
So that is why we say that when you look at the word “substantial”, it is really not that significant in terminology in that the interests of justice require you to look at all these factors. It was just highlighting that finality in “change of law” cases is important. Finality in other circumstances may not be a particularly important aspect to consider on extension of time.
Clearly, if the extension of time was only a couple of days, finality would never be particularly important. But these were not just significantly out of time but, in circumstances where the sentence at the time was a sentence according to law – a sentence according to the practices that applied at those relevant times – and so that brought in some special considerations - - -
HAYNE J: Why? Why? Is the position not now that it is to be observed that the sentence was not in accordance with law?
MR PICKERING: I accept that as a proposition, your Honour, but - - -
HAYNE J: Therefore, what is the significance you are attaching to the fact that at the time of passing it was according to then received understanding? What follows from that observation?
MR PICKERING: Well, if one looks at Kentwell, for example, on ground 4 of the mental illness that was an error that operated right from the very first moment of time when one looks at that. So he was never sentenced according to his mental illness properly. But on the Way error, the sentence actually was, at that stage, assessed even by his own legal practitioners as according to law and then the matter comes to an end.
It is giving no meaning to finality if you say, well, it does not matter, that there is no difference between whether the error occurred at the time – as in say, the mental illness – or whether the sentence was actually, according to legal principles, at that time and the matter then was finalised because the time limit ran out on an appeal. It is just recognising – consistent with many of the principles that we outline from the English decisions – that there should be some consideration given to the finality of what, at that stage, was still a decision according to law.
HAYNE J: Would you consider this proposition, that injecting finality in that way is double counting, double counting in this way – finality is provided for by the rule stated in the Act that leave to appeal within X days. That is the statement of finality. The immediate question is should extension of time be granted? At least delay, reason, prospects, I would have thought, would be relevant to extension. There may well be other considerations but what else are you adding when you utter the word “finality” other than an observation this is an extension of time application.
MR PICKERING: I think we are adding a little bit more than that. I hear what your Honour is saying about that, although finality is just one matter going into the mix. It is not the determining factor.
HAYNE J: Yes, but what is going into the mix?
MR PICKERING: Well, what is going into the mix are the factors in 53 – the interest of the victim which is an important aspect on sentence. It may not ever overcome some if there was great merit but it is a factor. The other aspects of - - -
FRENCH CJ: It is not a factor addressed in any concrete way in these cases.
MR PICKERING: I accept that there was no evidence called about it, your Honour, but the Court was entitled to consider that, particularly, in Kentwell where there was a victim impact statement - - -
FRENCH CJ: There was reference to a possibility of.
MR PICKERING: She had expressed a fear of the offender and the offence, in particular because of the ongoing domestic violence nature of it. I do not think that it would be unreasonable for the Court to understand that a victim would be apprehensive from a domestic violence relationship situation of when an offender’s sentence is – whether it is final, whether it is going to change. I do not think that was an unreasonable step for the Court of Criminal Appeal to consider although I accept that an affidavit was not put on from the complainant, for example, for her to outline her fears about a particular sentence date or anything like that. One wonders how much weight, ultimately, would ever be given that in the mix of factors to be considered.
FRENCH CJ: Mr Pickering, can I just take you back for a moment to this question of materiality?
MR PICKERING: Yes.
FRENCH CJ: I think you said that an error could be material on the basis that it could have affected the exercise of the sentencing discretion but it may be that in a particular case it did not affect the exercise of a sentencing discretion. In the exercise which functioned under section 6(3), assuming that we are putting aside questions of extension of time, and the expression of the language in that provision in the present tense, if the Court of Criminal Appeal decides that an error could have affected the sentencing discretion, does it then undertake the exercise of determining whether it did or does it go straight to the question of whether a lesser sentence would be warranted, having regard to present circumstances?
MR PICKERING: It looks at whether a greater or lesser sentence would be required in the circumstance. However, not ignoring relevant - - -
FRENCH CJ: But the question is not concluded by reference to whether the exercise of the sentencing discretion would have been different.
MR PICKERING: I accept that, your Honour. I accept that. Your Honours, can I take up a question Justice Bell asked of Mr Game very early on in the piece in relation to whether indeed Justice Bellew - what he did consider in relation to what he was doing when he looked at this predictive aspect of it and your Honour specifically was asking Mr Game whether indeed the court looked at the additional material. I have highlighted to your Honours those passages in Abdul where the court was saying that when they are doing this predictive summary fashion aspect that that is areas that they would look at. Your Honours will see at page 288 of the appeal book in Kentwell at paragraph 69 of his Honour’s judgment that his Honour says:
However, for the reasons which have been outlined, a number of material errors have been established. For the reasons explained in Abdul, it is therefore necessary to assess the prospects of success of the application for leave to appeal.
In my submission, you could not possibly read that without interpreting his Honour as saying that he was looking at what Abdul required him to look at from paragraphs 55 through to 58 and his Honour then went on saying:
In doing so, the Court must consider whether some lesser sentence is warranted-
I have to accept though of course, your Honour, that both in Kentwell and O’Grady, his Honour in dealing with it in summary fashion does not specifically say that he took the additional affidavit material into account. He does not articulate that. Nor, might I say, does he do the opposite of that and specifically say that he does not take the affidavit material into account. But, in my submission, given that he is doing this in a summary fashion and he is not doing the 6(3) test per se, he has indicated that he is following these steps in Abdul and, in my submission, it would be open to find that that is indeed what he was doing and he was considering the various factors that he was required to do under Abdul and, your Honours, in the appeal book of O’Grady, at page 198 at paragraph 32, one sees the exact same reference that:
for the reasons explained in Abdul, because in that case a material error has been established it is necessary to assess the prospects of success of the application for leave to appeal.
HAYNE J: Taking that as a convenient example, “In doing so, the Court must consider whether any other sentence is warranted”, do you say that that is a test to be applied in the fashion indicated by Chief Justice Spigelman in - is it Simpson, the “unless” sentence?
MR PICKERING: Yes, your Honour, but in a summary fashion in this case.
HAYNE J: I understand a summary fashion. At the risk of unduly personalising this, Mr Pickering, is that consistent with what I said in AB? Is it time for me to recant from what I said in AB? What exactly is your submission?
MR PICKERING: I think that is something that I would like to think about, your Honour.
HAYNE J: Well, I have got to. I have got to write a judgment perhaps, and should I be recanting or should I not?
MR PICKERING: We might like the opportunity, consistent with Mr Game, handing up a note in 14 days, to take the opportunity to specifically answer that. I would be reluctant to immediately answer your Honour’s question like that, particularly if that opportunity has been given to Mr Game, to be given to myself.
HAYNE J: The other members of the Court will determine no doubt whether that should be given. Can I just flesh it out a bit so that you know what is troubling at least me for the moment?
MR PICKERING: Yes, your Honour.
HAYNE J: A possible understanding of what is revealed by this set of authorities is the development of a body of authority – body of learning if you like – very elaborated, which seems perhaps to have moved away from two relatively basic and I think relatively simple propositions. One, extension of time is to be determined according to the interests of justice where at least delay, reason, prospects are common features, probably the chief features to be taken account of; one set of basic issues.
The second set of basic issues is the nature of a sentence appeal under the Criminal Appeal Act. In particular, is it right to say that 6(3) presents an “unless” question? Hitherto I should say quite bluntly to you, Mr Pickering, so that you know the target you are shooting at, I had not understood that to be received doctrine. I thought the doctrine was that the standard form sentence appeal provision, based ultimately in the Criminal Appeal Act I think, was error, and then resentencing discretion enlivened if error found and the Court of Appeal considered for itself what sentence should be passed. Now, that is the target at which you are firing.
MR PICKERING: Yes, your Honour.
HAYNE J: That is my target. There are four others you have to hit simultaneously with a single bullet, Mr Pickering. Good luck.
FRENCH CJ: The notion of error is really embedded in the use of the word “appeal”, which is part of the discussion we were having in Lacey, I think, and that is fundamental.
MR PICKERING: Within the concept of 6(3), though, if there is going to ever be a predictive look, if the test is more than just whether the individual ground had merit it is very hard to think of any test where you have some predictive look at it without having some consideration of 6(3), and that is difficult because it is – there is an appreciation if you are doing 6(3) once leave is granted it is a different prospect to just doing it in a summary fashion, but to say and accept that there must be some predictive outcome of the ultimate appeal and say, but, by the way, you completely ignore 6(3) in that concept, is a difficult aspect to really consider because then what really are you looking at.
HAYNE J: That is why I put to Mr Game the three different formulae of whether the CCA can say no different result would obtain, can say probably no different result would obtain or can say that the appellant has not shown would get a different result. There may well be other permutation and combinations of it, but I think there are at least those three on the table in this predictive look.
MR PICKERING: Yes, and in what the test that they are doing in Kentwell and O’Grady, I am not sure whether it answers any of the three particular questions that your Honour has posed in that regard as to whether - - -
HAYNE J: I had read it as the third. The applicant could not, or had not rather, had not shown would positively get a different result.
FRENCH CJ: It was the same formula in both of them.
MR PICKERING: It is the same formula in both the judgments, but the court is also looking at their own thought process as to what they might do so it is difficult to say that is the sole test that they are doing, but I appreciate the language, particularly when one looks in that final paragraph in both aspects that - - -
FRENCH CJ: But they have not actually at the bottom line, have they, weighed up delay and sufficiency of explanation on the one hand and the other interests which may be affected against some level of probability of success?
MR PICKERING: No, I accept that. Your Honours, if your Honours will just give me one moment to read this - if I could just take your Honours to Abdul at 72 and perhaps deal with one aspect of that.
HAYNE J: Sorry.
MR PICKERING: Paragraph 72 of Abdul.
HAYNE J: Yes.
MR PICKERING: You will see that when the Court in Abdul was looking at this particular question they perhaps expanded on it in a slightly more – way than in Kentwell and O’Grady where they outlined – but still even in 72 of that it is suggestive of the applicant failing to establish that, but there is a bit more of the weighing factors going to - - -
FRENCH CJ: Sufficient prospects, yes.
MR PICKERING: Yes, in 72.
HAYNE J: Nothing which would allow. This is one where the CCA is positively saying, “Look, take all of this to account, you are not going to get any better outcome”.
MR PICKERING: So you are seeing a different approach there in Abdul as you are in the final paragraph in Kentwell and O’Grady. Kentwell and O’Grady, of course, in many aspects, are simply, just by constantly referring to Abdul then does not articulate many of the principles that were outlined in Abdul itself. Thank you, your Honours.
FRENCH CJ: We are happy for you to put up a note on AB within 14 days, obviously copy to Mr Game and he can put in a response if necessary.
MR PICKERING: Thank you, your Honours.
FRENCH CJ: Yes, Mr Game.
MR GAME: Just briefly, your Honours. At the very beginning, Mr Pickering said that you need to show material error to get leave. You do not need to show material error to get leave. You need to show you have got an arguable ground. It has been put against us by the Crown here, and in that judgment of WA that we are putting, it is the same as leave. We have never put that submission.
Now, in respect of, shall I say, what the court did in Kentwell and O’Grady, by referring to Abdul at paragraph 69 – I think it was in Kentwell – that, in no sense, amounts to the court doing the exercise. But there is a deep problem with saying that you do it in a summary manner, but then you do all the things. They do not sit with each other. So there is a deep contradiction in saying, they are not pretending to do it, but they did do it. It is clear that they did not do it and, shall I say, the chopping out of that process in that way is completely inapposite of us at that step – that is our basic argument.
Now, in respect of AB is House v The King error, then there is resentencing subject to a finding that you would impose the same or a larger sentence and we say that is it. There is no intermediate step, there is no “but for”, there is no “unless” to it. It does seem that that has crept into the jurisprudence through Simpson into Baxter and Douar.
The concession about material error in this case, if one is looking to what it meant, it meant that there was an error which could affect the outcome. That is what was meant, whatever else it could mean, that is what the language of it meant in these cases. The word “substantial” is intended to impose a substantial hurdle. It is not intended just to be some little thing. Those are our submissions in reply.
FRENCH CJ: Yes, thank you, Mr Game. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.
AT 12.13 PM THE MATTER WAS ADJOURNED
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