Halac v The Queen [2015] HCATrans 299 (13 November 2015)

Last Updated: 17 November 2015

[2015] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S128 of 2015

B e t w e e n -

SVEN HALAC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 NOVEMBER 2015, AT 9.59 AM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS R. WITHANA, for the applicant. (instructed by William O’Brien & Ross Hudson Solicitors)

MR R.J. BROMWICH, SC: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL J: Yes, Ms Abraham.

MS ABRAHAM: Your Honours, this application raises the question of the proper construction of section 16A of the Crimes Act – a section your Honours will be well familiar with, which contains the statutory commands in relation to sentencing for all Commonwealth offences. The special leave point can be shortly stated but is important, that is, whether section 16A accommodates the common law principle that is referred to in De Simoni that a person should only be sentenced for an offence with which they are charged. That highlights section 16A(2), that is, it focuses attention on the phrase “nature and circumstances of the offence” which appears in that section.

In our submission, while this Court has considered whether other common law principles have been applied – and Bui refers to proportionality, totality, general deterrence and, indeed, of more recent times, very recent times – issues of consistency, for example. In fact, this point has not been directly addressed by this Court.

BELL J: Perhaps because it has not occurred to anyone that anyone would think that the De Simoni principle did not apply. Is not your first hurdle, Ms Abraham, the fact that it appears that the trial judge was conscious of De Simoni? She said she kept firmly in mind that your client was to be sentenced for trafficking in 40 kilos of pure methamphetamine. There is no suggestion that in reviewing her Honour’s sentencing remarks the Court of Criminal Appeal took some different view.

MS ABRAHAM: Your Honour, can I answer it in a couple of ways. First of all, that it is uncontroversial in my submission does not detract from the importance of the point. Indeed, in Johnson, which dealt with the principle of totality, the Court, in fact, recognised in the judgment that it might be said to be uncontroversial but important nonetheless because, as is well accepted, there is no right answer in relation to sentencing, that is, a right - correct result. Therefore, the application of proper principle is all the more important. So, that it is uncontroversial, in my submission, does not detract from the importance.

Secondly, in my submission, the way this matter was conducted at first instance and, indeed, on appeal illustrates the importance of the point needing to be directly addressed. Can I explain it this way? To say that the court below, at first instance, was conscious of De Simoni does not, in my submission, mean that the breach of De Simoni did not occur, quite to the contrary. Despite that fact, the Crown ran the argument on appeal and at first instance that what the court had to determine in relation to sentencing was the role of the offender in the bigger or broader enterprise.

What that was described as, by the Crown at first instance, and in the CCA - and, indeed, in the written submissions in this Court they talk of the syndicate. What was his role in the syndicate? Her Honour accepted at the behest of the Crown at first instance that that was a relevant consideration and relevant to that was the fact that a month after this offence he had access to 164 kilograms of drug with which he was not charged - not charged with importing, not charged with conspiracy, not charged with possessing – merely, charged with trafficking the particular 40 kilograms.

So, in my submission, that the Crown proffered the case on the basis that step one is the role in itself reflects that there is a De Simoni issue. It is not being interpreted or applied in the way that, in our submission, it ought to be applied. Secondly, the CCA did not even address De Simoni despite the fact that was the basis of the arguments on appeal. That was the applicant’s argument, that there was a breach of De Simoni. That the court did not address De Simoni, did not suggest it is not breached, it is breached or whatever, in my submission, reflects the importance of the point.

Indeed, the fact that the Court of Appeal actually concluded, at paragraph 109 which, I think, appears at page 41 of the appeal book - at the top of the page, paragraph 109 and, indeed, it is repeated in 112, the Court of Appeal has approached the issue on the basis that this broader syndicate which they describe as the importation and trafficking:

of large quantities of drugs by –

a sophisticated organisation, that is relevant as part of the – to the use the court’s words, “factual context”, and “context” is used in 112 as well.

BELL J: The court took into account these matters of context – I am looking at paragraph 110 – in its consideration that the applicant was “not simply a courier”. Was there a submission made to Judge Hock on the applicant’s behalf about his relatively minor role in this offence?

MS ABRAHAM: Yes. Your Honour, the applicant submitted that he collected the drugs from the car and passed the drugs on, as he was charged with. There was also, as your Honour will appreciate, a form – offence on a form. It was not suggested that he get some sort of mitigation, or leniency, because of no other involvement, but the sentencing proceedings progressed in this way. The Crown tendered a statement of facts and in that statement of facts included the reference to the 164 kilograms that a month later, et cetera, et cetera, and all the other conduct.

The applicant objected to that aspect. The Crown, in its written submissions at the outset of these sentencing proceedings, made the submission that the role was important, in the bigger enterprise, and that was relevant to that and the Crown submitted that as a result of his role, which her Honour would find from the sentencing statement of facts, including the 164 kilos – as a result of that, this man’s role in the enterprise was greater than the man, Stavrianos, to whom he provided the drugs and, therefore, ought to have received a higher sentence.

When the Crown made that submission at the outset, her Honour actually said to the Crown, that is not challenged, is it, and the Crown said we do not know as yet. Of course, as a response, Mr Walker says that, yes, the argument is that the role was not greater than Mr Stavrianos, it was less.

BELL J: Had Mr Stavrianos been sentenced at that point?

MS ABRAHAM: He had.

BELL J: Had Judge Hock sentenced him?

MS ABRAHAM: She had, yes.

BELL J: It was necessary for Judge Hock to form some view, having regard to the principles of parity, about the nature and circumstances of the applicant’s offending viewed in comparison to the nature and circumstance of Mr Stavrianos’ offending, was it not?

MS ABRAHAM: It was appropriate for her to consider – simply on the basis of he is a co-offender – what was inappropriate, which is what the Crown was asking for – is that the offence is, in effect, aggravated, that is, Mr Halac’s offence is aggravated because of his role. So, as a result of his role being higher than Mr Stavrianos’, his offence is more serious and that is how he ought to be sentenced. That, in my submission, is an erroneous approach. Indeed, in Olbrich, the Court said that one ought not to approach it on the basis of a person’s role in a broader enterprise – and in that case it was importing – would be an error.

Now, part of the problem that her Honour had in taking that approach, amongst other things, is that she looked at the enterprise as a single, a linear approach. So the fact that Mr Stavrianos did not have access to the drugs – the 164 kilos, for example – meant he was lesser. Mr Stavrianos was a wholesaler. He was purchasing from the syndicate, negotiating with the overseas syndicate for $2.3 million to get the drugs to on-sell. So the whole approach, in looking at it as a linear syndicate, by focusing on that, reflects, in our submission, error.

Your Honour has referred to nature and circumstances. The CCA did not refer to nature and circumstances. The CCA referred to context and, in my submission, that is important because, as was made clear very recently, the intermediate Courts of Appeal – that is where one looks to for guidance in terms of consistency and one is talking about consistency of principle. If one was to pick up this CCA judgment, the principle that one would get from it is that one is entitled, on a trafficking offence, a discrete act – one is entitled to take into account as context, despite the fact it is not in section 16A, entitled to take into account context – what the accused may or may not have done in relation to the broader enterprise and, in our submission, that is - - -

KIEFEL J: You are talking about context. It was not just his relationship to the large quantity of drugs, where he was observed with the Mercedes van. It was also that he was observed in the garage where the drugs were stored, and he was observed there on a number of occasions.

MS ABRAHAM: With respect, your Honour, at first instance there were two factors her Honour took into account, and they are at page 9 of the book – her sentencing remarks - well, three factors – one being offence, I will put that to one side; the second being that on five occasions he was seen with Mr Van Tatenhove, who was said to be higher up; and, third, and highly significant, is the access to 164 kilograms of drugs.

BELL J: Well, that is not quite what her Honour says at about line 41. When her Honour speaks of the high significance of the factual finding, it is that he “was trusted to have access to the store or cache of drugs”. Now, true enough it is, her Honour has referred to the evidence of the greater quantity found after the commission of this offence, but the point that is being made – and in the context in which her Honour goes on to say she is to keep firmly in mind he is being sentenced for trafficking in 40 kilos – is that he was a person, within the context of this offence, who was trusted to have access to the group’s store of drugs.

Now, if you go back to Olbrich, the point that was being made was that when a person is being sentenced for an offence such as importing a commercial quantity of drugs, the court may know little about the nature and circumstances of the offence and, in this case, it is an offence where one’s starting point is maximum sentence of life.

It is necessary for the sentencing judge, then, to make some assessment about where, on the continuum between life imprisonment and something less than life, it is appropriate to place this individual in terms of the objective circumstances of the events. Where more than one offender is being sentenced in relation to the offence, it is appropriate to make some assessment of where one stands vis-à-vis the other. Now, one may argue with the assessment that the sentencing judge makes. But that is the function of the sentencing judge, and unless there is a clear error in her assessment - - -

MS ABRAHAM: Can I answer that three ways, and start off – and we say there is clear error, because in that paragraph, after line 41, she talks about this store of drugs – “this store” being the 164 kilos of drugs. He was trusted to have access to that store of drugs. The Crown argued that the amount – the 164 – was relevant. He was not charged with it – well, he was originally charged with 164 kilos. That was dropped. So he was not charged with possession of that 164 kilos. The Crown’s argument is that he had guardianship of it.

So, yes, your Honour, I am not suggesting one looks at it artificially, but that is why, in our submission, one looks at the phrase “nature and circumstances of the offence”. That must have a limit. It is not context. That is, in our submission, plainly wrong. What fits within the nature and circumstances of the offence, what is relevant to that? There must be limits to that, and one of those limits, we say, must be that you cannot be sentenced for an offence with which you are not charged.

If you are sentenced on the basis that you have guarded, had access to, 164 kilos, when you are not charged with it, and that is used in an adverse way, in our submission, that is a breach of De Simoni. So, that is why this judgment actually does raise the – illustrate why it is important that the court does address this issue.

Can I just make one other point about the 164 kilos? His Honour, in the Court of Criminal Appeal, actually concluded that the 164 kilos was irrelevant. That appears at paragraph 37. His Honour does not say why it is irrelevant, but he says that the reference to - - -

KIEFEL J: Sorry, did you say paragraph 37?

MS ABRAHAM: Sorry, page 37, paragraphs 86 and 87. His Honour does not say why the amount is irrelevant. He talks about it as being a grammatical failure. That, with respect, ignores that the amount was let in over objection, and it was the amount that was the subject of argument. It was the amount that was said to be relevant in the CCA by the Crown, and it was the amount her Honour took into account.

It is said that the reference to the 164 kilograms by her Honour was merely to identify the van. In our submission, that is plainly incorrect on a proper reading of the judgment. That was not what was contended for below at all. It was not what was contended for in the CCA by the Crown. It was guardianship of the 164 kilos. The Crown, in written submissions to the CCA said to not have 164 kilos would be artificial. Importantly, that finding is not defended by my friend in written submissions in this Court. So, there is an error, with respect - - -

BELL J: To the extent that the Court of Criminal Appeal proceeded upon the basis from paragraph 86 through to paragraph 88 that the weight of the drugs was irrelevant and that it was an unfortunate slip by the sentencing judge, one divines no suggestion that the Court of Criminal Appeal of New South Wales considered that De Simoni did not apply to the sentencing of a federal offender. So, quite what beyond a complaint about this particular judgment, how does one get to the special leave point that you say that case raises?

MS ABRAHAM: Two matters. Your Honour, we say that interpretation of the 164 kilos is plainly incorrect. It was not contended for by the Crown - - -

BELL J: I understand that, Ms Abraham. What I am taking you to is the fact that it is clear from the approach that the Court of Criminal Appeal takes that their Honours are not sanctioning taking into account an offence that is not charged as an appropriate course in sentencing a federal offender. So, where is the basis for the special leave point? You complain about what you assert is an error in the reasons of the Court of Criminal Appeal.

MS ABRAHAM: Briefly on that aspect, you cannot, in effect, avoid what the sentencing judge did by characterising it in a way that is not, in our submission, correct. But leaving that to one side, on any scenario, it is guardianship of drugs, and the court found that was a relevant factor, guardianship of drugs at a later time. The amount, they say, is irrelevant. If there were not drugs there then there would be no guardianship. There would be no access. It would be just not a relevant factor. So while the court has said that, they have in fact taken into account that one month after the event, as part of the circumstances, this man had access to a quantity of drugs with which he was not charged.

That, in our submission, is a breach of De Simoni. In our submission, that the court did not refer to De Simoni when that was the crux of the argument makes this judgment all the more concerning because, for precedent value, one picks up the judgment and one looks at you can take into account context. No guidance as to nature and circumstances under

16A at all, but rather, one is entitled to look at the broader picture of the enterprise without question, without assistance, in our submission, in a context where the CCA has said there was error by her Honour taking into account 164 kilos in a context where, in our submission, the offender was not charged with a discrete offence but much broader conduct was relied upon by the Crown. It was incumbent upon the Court to refer to the relevant principles and apply the relevant principles.

If one then looks to the intermediate appellate courts as applying or providing guidance, this judgment does not. Quite to the contrary, this enables a sentencing judge to take into account – under the guise of context – a term not in the 16A facts, including facts which, in our submission, breach De Simoni.

KIEFEL J: We do not need to trouble you, thank you, Mr Bromwich.

We consider that there are insufficient prospects of success in this matter to warrant the grant of special leave and that the interests of justice do not require it. Special leave is refused.

MR BROMWICH: If the Court pleases.

KIEFEL J: The Court will now adjourn to reconstitute.

AT 10.21 AM THE MATTER WAS CONCLUDED