[2015] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Sydney			No S280 of 2014

B e t w e e n -

STEPHEN STOESKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 12.44 PM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   Your Honours, I appear with my learned friend, MS G.E.L. HUXLEY, for the applicant.  (instructed by William O’Brien & Ross Hudson Solicitors)

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

BELL J:   Yes, Mr Dhanji.

MR DHANJI:   Thank you, your Honours.  Your Honours, the applicant requires an extension of time.

BELL J:   Is that opposed?

MR PICKERING:   No, your Honour.

BELL J:   Yes, very well.

MR DHANJI:   Thank you, your Honour.  Your Honours, if I could begin by taking your Honours to the application book at page 114, a decision of the Court of Criminal Appeal, and in particular to paragraph 46.  These are the reasons given by her Honour Justice Adamson, with whom the Chief Judge at Common Law, Justice Hoeben, and Justice Bellew agreed.  What her Honour said at paragraph 46 was this:

The assessment of objective seriousness of an offence and the weight to be given to such an assessment are pre‑eminently within the discretion of the sentencing judge –

and her Honour referred to authority of some longstanding in New South Wales in relation to that principle.  Your Honours, in our submission, that statement is wrong.

BELL J:   Mr Dhanji, as I understand your submissions, you take no issue with House v The King and the long line of cases that follow it.

MR DHANJI:   I would not be so bold.

BELL J:   We are looking at a discretionary judgment.

MR DHANJI:   Yes.

BELL J:   A discretionary judgment involving what sometimes is described as an instinctive synthesising of competing, often conflicting considerations resulting in a conclusion that is not the single correct sentence, but within, if you like, a range of sentences for that offender and that offence.

MR DHANJI:   Yes.

BELL J:   In those circumstances, if the appellate court considers that the assessment of the objective seriousness of the offence which feeds into the discretionary conclusion was one that was open, why does the appellate court trouble itself to form its own assessment?  It is looking for discretionary error and it is accepted that there is a range in which one might characterise the objective seriousness of a given offence, is there not?

MR DHANJI:   I understand what your Honour puts, but the answer, with respect, is this, and that is – or if I can begin by perhaps going back to House v The King, what was said in House v The King – and I appreciate this is trite for your Honours – but in the third category the question is if upon the facts the ultimate determination is plainly unreasonable or unjust then the focus, in our submission, must come back to the facts.

BELL J:   It is one thing to speak of an error of fact by a sentencing judge, but to say that an expression of opinion that an offence is a very serious offence is a finding of fact might be putting it high, might it not?

MR DHANJI:   That is my point, with respect, or our point.  In a sense, what is happening here is that an intermediate step is undergone by the Court of Criminal Appeal.  If I could put it another way - by engaging in this exercise one has come before the Court of Criminal Appeal, an offence, sentenced at first instance, the sentencing judge looks at the facts and might express an opinion as to where in the range of offences the matter falls, and then having regard to that determination determines a penalty.

	Now, the Court of Criminal Appeal, in our submission, in reviewing that determination, at least within the vast category of House v The King, in a sense performs a similar exercise to that of the sentencing judge.  It looks at the objective facts, looks at the maximum penalty, looks at the subjective case and then determines whether the ultimate result falls within that range.  

	Now, if the Court of Criminal Appeal, however, does what current authority in New South Wales authorises, it actually cuts out in a sense, or introduces an intermediate step by doing this.  It takes the first instance exercise.  It says, well, the sentencing judge has come up with a view of the facts as being objectively very serious.  The Court of Criminal Appeal may well say, I may well not have come up with that particular label myself, I would have regarded it less serious, but having regard to the assessment of the sentencing judge of these facts as being objectively very serious, high in the scale, well then that opens up a range of possible penalties and, albeit that this one is at the upper end of that range, it is within the range having regard to the sentencing judge’s determination of objective seriousness.

BELL J:   Can I just interrupt you, Mr Dhanji?  You are not suggesting that the sentencing judge’s view of where, as it were, on the continuum the objective seriousness of an offence is is an error of fact or can be characterised in that way, are you?

MR DHANJI:   No.

BELL J:   No.  So we are looking at a conclusion of manifest excess or inadequacy on the part of the appellate court in a given appeal?

MR DHANJI:   The point – I am sorry, I am interrupting your Honour.

BELL J:   The court’s conclusion is a conclusion about whether in the exercise of the admittedly broad discretion that the law reposes in the sentencing judge the sentence falls outside the range in the sense that it is unjust or unreasonable.  Now, if that is accepted, what is the function of the Court of Criminal Appeal in the conduct of its review of that discretionary judgment?  Why is it concerned to form its own assessment, as it were, of objective seriousness?  The question for the Court is:  is the conclusion that the judge reached one that is unreasonable or unjust?

MR DHANJI:   Yes, in our submission, with respect, your Honour, that conclusion, whether the result at the end of this process is unreasonable or plainly unjust, can only sensibly be determined by having regard to the primary facts, the offence and the maximum penalty and the personal circumstances of the offender.  Those are the matters that are synthesised to produce the result.

BELL J:   Indeed.

MR DHANJI:   If one then intervenes in that very simple exercise ‑ those are the three matters.  If one intervenes in that very simple exercise and says, well, actually, rather than looking at the primary facts, the maximum penalty and the subjective circumstances of the offender we will look at not just those matters but the sentencing judge’s determination as to where in the range the matter fell.  One broadens the possible range of outcomes.  There is a concertina effect, if I can put it that way.  In other words, one broadens – there will be a range of possible outcomes in terms of determination of objective gravity.  For every determination of objective gravity along that range there will be a broadening, or a range of possible ultimate outcomes, depending upon that particular finding.

BELL J:   Mr Dhanji, courts respond to the submissions that are put to them.  Am I right in thinking that the Court of Criminal Appeal was dealing with a submission that the sentences – the provisional sentences fixed on counts 1 and 4 by Judge Charteris were manifestly excessive because his Honour placed too great a weight on the objective seriousness of them?  That was the submission that the court was dealing with.

MR DHANJI:   Well, the submission was that the – or the ground was that the ultimate sentence was manifestly excessive.  Sitting under that ground was the submission that the indicative sentence was manifestly excessive.  Whilst part of that argument certainly was that his Honour erred in the assessment of objective seriousness, that did not sit alone, and it was in a sense I suppose a form of attack on the sentences but, ultimately, to require the appellant to be successful in that attack before he could succeed in his ultimate ground required too much of the appellant and that is our submission in a nutshell.  There was some basis for the attack.

	Can I perhaps do it this way, and I appreciate that I am not travelling downhill at the moment, but I will, if your Honours will indulge me, do it this way.  Your Honours will see in relation to count 1 at application book 114 her Honour at 44 refers to “The starting point”.  At 45 her Honour says:

In my view it was well open to the sentencing judge to regard the offence in count 1 as amounting to “serious criminal activity”.

Her Honour then makes the observation as that being a discretion necessarily, as has fallen from your Honour, necessarily a broad discretion.  At 47 there is a reference to “a cautious approach”.  Then at 48 there is, in effect, the conclusion:

There is, in my view, no basis for concluding that the indicative sentence for count 1 would, if imposed, have been unreasonable or plainly unjust:  Dinsdale v The Queen.  The seriousness of the offending –

but that can only be understood, in our submission, by reference to what her Honour had said at 45, that is the seriousness of the offending as found by the sentencing judge.

	Now, if all her Honour is doing in determining whether this particular sentence falls within the range, that is, having regard to the primary facts, the maximum penalty and the offender’s circumstances, is this result unreasonable or plainly unjust?  That is an exercise that has been skipped over altogether, in our submission, because all that is happening here is that there is, in effect, reference back to a finding of seriousness by the sentencing judge, determination that that finding was open, and then having regard to that finding that the sentence was not unreasonable or plainly unjust.

	Now, I appreciate that findings of manifest excess or inadequacy, whilst reasons are required, there is necessarily some difficulty in setting out reasons in any great detail but, with respect, this process simply, in a sense, we say – and in my submission, we are not putting it too high in saying simply deferring to a sentencing judge’s assessment – does not engage the process that is required, and the ultimate result is the appellant has not had his appeal properly determined.

GAGELER J:   Well, all of this is responsive to what is identified at the top of page 113 as the “New ground”.

MR DHANJI:   Yes.

GAGELER J:   You say that there was some argument put on that new ground that is not dealt with in her Honour’s reasons.

MR DHANJI:   Well, a key part of the ground and in particular with respect to count 1, was what was the conduct that actually constituted count 1 and, therefore, how could one ascertain where it fell within the range.  Now, what her Honour said at paragraph 44 over the page on 114 ‑ refers to the receipt by the applicant of the vehicle, and just at about line 25 her Honour says:

two offenders who handed over the Subaru vehicle to him soon after the robbery.  He concealed it in a garage –

No issue with that, that was what the agreed facts said –

and used WD‑40 to reduce the risk of detection.

That goes, in our submission, beyond what was relied upon as conduct constituting the charge.  Further –

When he took it out of the garage on the night of 1 August 2011, he stole number plates from another Subaru and dumped the original number plates in the drain.

So insofar as her Honour has gone on to refer to those matters, her Honour has actually gone on to refer to matters that went to extending what could be taken into account with respect to the offence.  Now, this is an argument that was had at first instance.  The sentencing judge, in our submission, did not refer to those further matters, but certainly in the Court of Criminal Appeal a major plank of the applicant’s argument was, well, the objective seriousness of count 1 is limited because it only goes so far as to include the conduct and putting it in the garage.

BELL J:   Were there some agreed facts?

MR DHANJI:   Yes, your Honour.  If I can begin ‑ ‑ ‑

BELL J:   Was there some evidence about the use of WD‑40?

MR DHANJI:   Can I deal with it this way?  If I can take your Honour to page 1 of the application book, that is the charge with respect to count 1.  Now, as it happens, there seems to be an error in terms of an inconsistency between calling it an “Accessory after fact” charge and the words in handwriting below, using the words “aiding and abetting”, but no issue seems to have been taken at any stage and it has been treated as accessory after the fact.

	For present purposes, what is important about that charge is it is particularised as conduct on 20 July 2011, and in terms of the conduct itself it refers only to the taking possession of the vehicle, but it is plain enough from that that the Crown relied upon, or the respondent relied upon, the conduct on that date.  When one goes to the facts in relation to the charge your Honours will see ‑ and this is at page 24 of the application book, the facts with respect to count 1 begin at the bottom of that page, they refer to the principal offence, the robbery, and then over the page on page 25 at about line 9:

At about 11.15pm on Wednesday 20 July 2011, the offender –

attended the particular address –

This vehicle was parked in the garage of unit one and the offender left the location.

That, your Honours, in our submission, is count 1.  The facts then go on to refer to the driving of the vehicle, and it is in that context and in the context of the charges referable to that conduct that this reference to WD‑40 and the like arises.

BELL J:   So really the conduct involved in the use of the WD‑40 was charged in respect of a matter on a form 1 and should have been taken into account in relation to count 4, is that the point?

MR DHANJI:   Should not have been taken into account, your Honour, with respect to count 1 is really the point.

BELL J:   And was relevant to count 4?

MR DHANJI:   Was relevant to count 4 because the form 1 attached to count 4, and I should say there is no issue that the form 1 matters were taken into account in relation to count 4.

BELL J:   All right.

MR DHANJI:   So what that means – now, I accept at once that fine lines about what fact or even if the error is a reasonably obvious one they are not going to necessarily attract the interest of this Court, but why it is important in this case is that it does demonstrate the exercise that is being conducted here.

BELL J:   What it may demonstrate is an error on the part of the Court of Criminal Appeal in the understanding of the factual basis of count 1, but it seems to me to not bear relevantly on the issue that you say should attract the grant of special leave, which is that the notion that the Court of Criminal Appeal’s task requires it in the conduct of its review to form its own opinion as to the objective gravity of an offence rather than to consider whether the – this is in the context of an allegation of error of the residuary variety in House v The King – whether, having regard to the offence and the offender, the sentence is manifestly excessive or inadequate, as the case may be.

MR DHANJI:   Well, I appreciate your Honour’s point, but it works, with respect, in this way.  In exercising the determination that the applicant – or with respect to the applicant’s appeal and determining whether the sentence on count 1, or the indicative sentence, if imposed, would have been excessive, there was the challenge that the offence could not be properly described as serious.  To, albeit on wrong facts, defer to the sentencing judge’s determination – well, I will go back a step.

BELL J:   It is not a question of deferring, is it?  It is a question of ascertaining whether the sentencing judge’s broad discretion miscarried in a way that can only be identified from the fact that the sentence that was imposed was unreasonable or plainly unjust.

MR DHANJI:   Yes.

BELL J:   That is the issue.

MR DHANJI:   Well, that is so.  Now, of course, one can go into ‑ in terms of determining whether that end result fell outside the range, either look at specific ‑ well, I withdraw that.  In determining whether that ultimate 
sentence fell outside the range, it is commonplace to look at particular factors and have discussions with respect to too much weight given to this factor or that factor, and it is well appreciated that those are manifestations of an aspect of simple manifest excess rather than specific error. 

	But in the context of this type of appeal where there is a range of outcomes available, depending upon the determination of objective seriousness, and in circumstances where there is a challenge in the Court of Criminal Appeal to that objective seriousness, the requirement for the court to actually determine that challenge is an important one.

	In fact, the importance of it is such that ‑ well, again, I will go back a step.  The importance was lost in this case and a demonstration of it being lost is the fact that the facts in relation to what actually constituted count 1 were not properly considered.  Had the court done the exercise that we say is required and gone back to the primary facts and determined whether, on the primary facts, the sentence was within the range, we would not, in our submission, be in this situation.  But rather – and I appreciate your Honour interrupted me before when I used the word “deferred”, but we do submit that what in effect happens here is a form of deference to an intermediate step undertaken by the sentencing judge.  Now, underpinning all of this ‑ ‑ ‑

BELL J:   The difficulty with this whole line of argument, if I may suggest it, Mr Dhanji, is that the exercise that is reposed in the sentencing judge involves weighing up competing considerations, and for an appellate court to say of one of those considerations, we would have come to a different view, is not to say that it was not open to the sentencing judge to properly arrive at the conclusion that the judge did.

MR DHANJI:   Quite so, but arriving at a determination that the sentencing judge was entitled to make some intermediate finding does not necessarily help with the final determination.  Now, if I can just – I appreciate the light is on, and I can see that I am not in the best position, but if I can just say this.  Apart from doing justice in the individual case, the important function of the Court of Criminal Appeal is to maintain consistency in sentencing and that is fundamental to the place of criminal justice within a civilised society.  

	By opening up this intermediate step as a discretionary determination one produces a range of outcomes for that determination and in turn the range of outcomes dependent upon that, and it is inimical to the consistency which we submit the Court of Criminal Appeal is required to attain.  Those are our submissions.

BELL J:   We do not need to hear from you, Mr Pickering.

	We are not satisfied that there was any error of principle in the approach adopted by the Court of Criminal Appeal, nor that the interests of the administration of justice require a grant of special leave.  Special leave is refused.

	The Court adjourns to 10.15 am on Wednesday, 4 March in Canberra.

AT 1.07 PM THE MATTER WAS CONCLUDED