Freeman-Quay v The Queen [2016] HCATrans 235 (10 October 2016)

Last Updated: 11 October 2016

[2016] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C12 of 2016

B e t w e e n -

LEVI FREEMAN-QUAY

Plaintiff

and

THE QUEEN

Defendant

Application for bail

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 OCTOBER 2016, AT 2.30 PM

Copyright in the High Court of Australia

MR K.J. ARCHER: If the Court pleases, I appear on behalf of the applicant. (instructed by Kamy Saeedi Law)

MS M.A. JONES: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (ACT))

MR ARCHER: If the Court pleases, we move on a summons which was filed in this Court on 20 September 2016 and we make application for bail in the terms set out in an affidavit of Michael Kukulies-Smith, my instructing solicitor, which was affirmed and filed on 20 September 2016.

HIS HONOUR: Yes, thank you.

MR ARCHER: Does your Honour have that?

HIS HONOUR: Yes, and I have read that affidavit. Thank you.

MR ARCHER: I read that affidavit. I do not understand there to be any objection.

MS JONES: There is no objection, your Honour.

HIS HONOUR: Yes.

MR ARCHER: The orders sought are, in addition to the grant of bail, an order of this Court to stay the decision of the ACT Court of Appeal of 6 September 2016 until the hearing of an application of special leave to this Court. It is numbered C212/2016. It seems to be, with respect, agreed amongst the parties that the Court has the power to grant bail in the circumstances that apply here and also to stay the orders of the ACT Court of Appeal. There seems, with respect, to be largely agreement at the Bar table as to the relevant tests that apply, although there may be a slight difference as between the applicant and the respondent in relation to the threshold test that applies in respect of the prospects issue that applied to the special leave question.

The affidavit of Mr Kukulies-Smith suggests that within the timeframe contemplated by the Court for the hearing of the special leave application, the applicant in these proceedings will have served either totally, or very substantially, the term of imprisonment that he presently is serving. That term is due to expire on 14 December 2016. The advice given to my instructing solicitors was that in the normal course of events the hearing of the special leave application would fall somewhere between December of this year and February 2017.

In respect of the tests to be applied by the Court there are a number of relevant issues. First of all, in deciding whether or not to grant bail, it is accepted that bail is granted only in exceptional circumstances, and in determining whether or not exceptional circumstances are made out there are two conditions that, in particular, must be satisfied.

One is that bail will not be granted in circumstances unless it is shown that the period of imprisonment will be virtually served, or all of it will be served at the time of the hearing of the special leave. I do not understand there to be contest in relation to that issue. Where the issue does invite contest, or where there is contest is in relation to the question of whether or not in respect of the special leave application there are sufficient prospects of success.

HIS HONOUR: Probably it would be better put in terms of whether there are strong prospects of success on the appeal were special leave to be granted. So there are two hurdles. One is convincing me that there is a strong prospect of special leave to appeal being granted and, secondly, that were special leave granted, there would be a strong prospect of the appeal being allowed.

MR ARCHER: If the Court pleases. In relation to that issue, the applicant relies on the application for special leave that has been filed.

HIS HONOUR: Yes.

MR ARCHER: Your Honour hopefully has received, on behalf of the Crown, a response in relation to that application.

HIS HONOUR: Yes, I have read the application. I have read the response and I have also been provided with a copy of a proposed reply.

MR ARCHER: Yes.

HIS HONOUR: I do not know if that has been filed at this stage.

MR ARCHER: It has been filed, if the Court pleases.

HIS HONOUR: I cannot say at this stage that I have had an opportunity to study the reply.

MR ARCHER: Yes. To explain the circumstances of that, we understood the response to the special leave to have been due last Friday. We were served with a response today. So that the Court was best placed to assess prospects we penned a reply quickly so that the Court would have the benefit of some written submissions in relation to that issue.

HIS HONOUR: Thank you. So the matter is now ready to proceed. We will come back to the current application in a moment, but the principal application is the application for special leave to appeal. The documents, I think, are now complete.

MR ARCHER: Yes.

HIS HONOUR: In the normal course an application book would be prepared in the next three weeks. Once that application book was prepared, the application would be ready to be considered within the Court. One way of expediting the proceeding would be to dispense with the need for such an application book. Unless either party thought it was necessary to have the documents compiled into a formal booklet we could dispense with that rule so that the application would be ready now to be considered by a Full Court.

MR ARCHER: Certainly from the applicant’s point of view we would not insist on there being a book produced.

MS JONES: No, your Honour, I have no difficulty with that course.

HIS HONOUR: All right, okay. Well, that is as much as I can do to expedite that process.

MR ARCHER: If the Court pleases. In relation to the prospects issue, as between the submissions that have been made by the applicant and the respondent there may, in our submission, be a misconception in the mind of the respondent as to how the special leave issue is actually put.

HIS HONOUR: Yes.

MR ARCHER: The application is not – and I hasten to add not – seeking to revisit a determination made by the Court of Appeal in respect of an appeal dealing with a manifest excess issue. That is not what the applicant seeks to contend. Rather what is put is that the appeal that was on foot before the Court of Appeal by the orders sought and by the submissions that were made, made clear, in our submission, that the appeal in respect of the sentence, in respect of the actual bodily harm charge, was not pressed in the circumstances where the court was minded to uphold the conviction appeal. Rather, the applicant, and the appellant below, invited the court in that circumstance, that is if the conviction appeal was upheld, to consider whether it was appropriate to revisit the sentence that had been imposed by the court at first instance in respect of the actual bodily harm charge.

We contend that that is what the court was invited to do and that the court had power to do that, but we say the court fell into error by treating the appeal against the sentence in respect of the actual bodily harm charge as still pressed and to deal with the issue concerning the appropriateness of that sentence, not in the context of the exercise of a de novo sentencing discretion, but in the context of an appeal based on considerations of manifest excess.

HIS HONOUR: Can I just understand exactly how you put it? You look to the power of the Supreme Court under section 37O of the Supreme Court Act. You then, as I understand it, say that on the appeal against conviction, the court has power under that section, having allowed the appeal and quashed the conviction, to resentence for another offence.

MR ARCHER: Yes.

HIS HONOUR: You say, as I think I am hearing you now, that that is what you asked the Court of Appeal to do in the present case. Where did you ask the court to do that?

MR ARCHER: Both in the notice of appeal and in written submission.

HIS HONOUR: All right. I do not think I have seen the written submissions relevantly.

MR ARCHER: The relevant part is extracted in our reply.

HIS HONOUR: I see.

MR ARCHER: Could I take your Honour to page 2 of our reply, paragraphs 4, 5 and 6.

HIS HONOUR: So does it appear anywhere that you asked the Court of Appeal to, as you put it, exercise the discretion de novo in the event of the appeal against conviction being allowed?

MR ARCHER: Using the term “de novo” no, but simply to resentence the applicant in these proceedings so that the concept of resentence was used.

HIS HONOUR: Yes. This is in circumstances where you had formulated a ground of appeal.

MR ARCHER: There was a formulation of a ground of appeal in respect of the count of assault occasioning actual bodily harm and that was particularised on the basis of manifest excess.

HIS HONOUR: Yes, and it was that appeal that was only being pressed in circumstances where the appeal against conviction was upheld.

MR ARCHER: Yes, so the applicant indicated to the court – and I will take your Honour to the reasons of the Court of Appeal in a moment, but it seems to have been accepted by the Court of Appeal that is what it was being asked to do, to resentence, that is the court acknowledged that the applicant in these proceedings was not pressing the appeal in respect of the sentence appeal if it was the decision of the court to uphold the conviction appeal.

HIS HONOUR: That was a correct understanding.

MR ARCHER: That was accepted by the court. Can I take your Honour to the reasons of decision of the Court of Appeal?

HIS HONOUR: Yes.

MR ARCHER: They appear as MKS-3, which is folio 18 and following of the affidavit.

HIS HONOUR: Yes, thank you, I have those.

MR ARCHER: Can I take your Honour to the first page of their Honours’ reasons at paragraph 3?

HIS HONOUR: Yes. You make no complaint about that as far as it goes.

MR ARCHER: No, but that encapsulates what the applicant in these proceedings was wanting the court to do - that is the appeal was not pressed in relation to the question of sentence.

HIS HONOUR: Yes.

MR ARCHER: Rather that the applicant was seeking the court to exercise a discretion which we say - - -

HIS HONOUR: I just do not see that. It is not recorded in paragraph 3.

MR ARCHER:

The sentence appeal only relates to an adjustment of the sentences imposed if the conviction appeal is upheld. If the conviction appeal is dismissed then the sentence appeal will not be pressed separately.

HIS HONOUR: So it is the sentence appeal on the sole ground of manifest excessiveness?

MR ARCHER: Yes.

HIS HONOUR: Well, I understand that.

MR ARCHER: But if I could interpolate why that approach might have been taken – and it is what we assert on the appeal here. If it was the case that the court ruled in the applicant’s favour in respect of the conviction appeal, we say and contend here that the factual matrix that applied as a result of that finding rendered otiose a consideration of a sentence appeal in respect of the assault occasioning actual bodily harm charge because the practical consequence of the court finding was that the course of conduct that the sentencing judge had referred to no longer was made out by the facts that would be before the court if it were a sentencing exercise.

HIS HONOUR: Yes, so that the sentencing judge saw this offence as one of three offences committed in quick succession. The change to which you refer is that the most serious of those three offences was found not to have been made out.

MR ARCHER: Yes.

HIS HONOUR: All right.

MR ARCHER: Noting that that was – her Honour approached the matter, we would say, slightly idiosyncratically in that she sentenced in a non-chronological way in respect of what had happened and certainly in respect of the respective seriousness of the charge.

HIS HONOUR: Yes.

MR ARCHER: So the assault occasioning actual bodily harm charge was the second in time but was sentenced first, and conversely the more serious charge was the first count on the indictment but sentence second with a degree of concurrency that was involved.

HIS HONOUR: So you had two appeals before the Court of Appeal?

MR ARCHER: Yes.

HIS HONOUR: An appeal against conviction and an appeal against sentence. Is it your contention that in the appeal against conviction the court had a power and, in the circumstances, a duty to resentence, or is it your case that in the appeal against sentence one of the grounds raised in some way was that the sentence should be re-exercised in light of the conviction appeal being allowed?

MR ARCHER: No. We say that the appeal against sentence, the appeal against sentence was put squarely on a manifest excess basis. The indication given was that that was not pressed if the conviction appeal was upheld. Could I take your Honour to the reasons of decision of the sentencing judge, her Honour Chief Justice Murrell. It appears as MKS-1 in the affidavit and it is folio 8 and following of the collection. Could I take your Honour to page 4 of her Honour’s reasons, and particularly paragraph 19?

HIS HONOUR: Just bear with me a moment. Yes.

MR ARCHER:

With respect to the behaviour of the offender and the associated moral culpability, I accept the prosecution’s submission that it was not just a case of one isolated punch but rather an episode of aggression (albeit an episode of relatively brief duration) in which the delivery of the critical punch was only one aspect. The aggression started when the offender tugged at Mr Burt’s “hoodie” and finished when the offender committed the offence of assault occasioning actual bodily harm to Mr Reynolds.

We say that clearly her Honour, in assessing the moral culpability of the applicant in these proceedings in respect of the assault occasioning actual bodily harm charge, necessarily, and by the terms of her reasons, had to consider, and did consider, that the assault occasioning actual bodily harm happened in a particular context and that is soon after the delivery of the punch that caused the complainant considerable injury.

HIS HONOUR: Yes, and she says as much in paragraph 23, I think.

MR ARCHER: So what had been intended to be pursued therefore if the applicant in these proceedings was successful on appeal was to agitate with the court if it found in favour of the applicant whether or not that sentence remained appropriate given the circumstances in which it was opposed and, significantly, in relation to what element of suspension of the sentence should apply in respect of that particular charge.

HIS HONOUR: Can I just interrupt you there for a moment? You have taken me to your reply.

MR ARCHER: Yes.

HIS HONOUR: Where, in paragraph 5, you have extracted the relevant part of your written submissions. In the Court of Appeal’s reasons for judgment at paragraph 109, there is an extract from the transcript of the

appeal. Is there anything more that was said to the court in writing or orally about the way in which the sentence appeal was sought to be put?

MR ARCHER: No.

HIS HONOUR: All right.

MR ARCHER: Tangentially, your Honour, while you take me to the relevant part of the Court of Appeal’s reasons, could I take your Honour to paragraph 106 of their reasons?

HIS HONOUR: Yes.

MR ARCHER: There the court repeats, we say, in similar terms to the terms of paragraph 3, what we understood to be an accepted position in relation to how the applicant in these proceedings invited the court to deal with the matter that was before it.

HIS HONOUR: Yes, all right. Is there something more you wish to say?

MR ARCHER: No, your Honour, otherwise we rely on our written submissions.

HIS HONOUR: Thank you. Ms Jones.

MS JONES: Your Honour, can I say at the outset that bail is opposed.

HIS HONOUR: I take that to be the case.

MS JONES: Yes, the position of the respondent is that the special leave application and, following that, the appeal – that the special leave application itself would have little or no prospects of success. I accept that the sentence would have expired by the date the special leave application would be heard, although I note your Honour’s comments earlier that it might be able to be expedited and I note the sentence does not expire until December. At the outset we say there is no prospect of success. The special leave application relies on a specific Victorian provision, section 569 of the Crimes Act, as it was then, which has no counterpart in ACT legislation.

HIS HONOUR: Would you go so far as to say this? That if there was an appeal against sentence which, in its grounds, explicitly sought resentencing in the event that the matrix of considerations taken into account by the sentencing judge had changed as a result of the conviction appeal being upheld, in those circumstances would you say that the Court of Appeal lacked power to resentence?

MS JONES: Yes, in the absence of a specific appeal against the sentence, which there was in this case.

HIS HONOUR: There was an appeal against sentence in this case.

MS JONES: Yes.

HIS HONOUR: It just appears to me, at the moment, that it was pressed on a very limited ground.

MS JONES: It was pressed on a very limited ground. My understanding is that it was pressed on the basis that the sentence is manifestly excessive if the conviction appeal was upheld – that is, if the Court of Appeal overturned the conviction on the grievous bodily harm charge, then the applicant sought the court to consider the sentence as manifestly excessive upon that finding in relation to the conviction appeal.

HIS HONOUR: In your submission, did the appellant in the sentencing appeal seek resentencing simply on the basis of the conviction appeal being upheld?

MS JONES: No. In my submission, there was a separate ground that the sentence was manifestly excessive only if the conviction for the grievous bodily harm charge, in effect, disappeared.

HIS HONOUR: Yes. All right.

MS JONES: Your Honour, if I could hand up – just to assist – it is a chronology just of relevant matters and the three notices of appeal. The notices of appeal were not required to be included in the application, the special leave application.

HIS HONOUR: This sequence of events is referred to in your response, I think.

MS JONES: Yes, your Honour. So, at paragraphs 7 to 9 of the response, the history of the matter is referred to and, in particular, the three notices of appeal, being the initial notice of appeal from 27 September, followed by an amended notice of appeal on 12 November and a further amended notice of appeal from 24 November 2015.

HIS HONOUR: Yes.

MS JONES: In relation to the first notice of appeal, there was no reference to the sentence – the assault occasioning actual bodily harm sentence – it is at tab 2.

HIS HONOUR: Where are we going with this? Why are you taking me to this material beyond what is already in your response, which I have read?

MS JONES: Well, just that there was no – I think your Honour just raised with me whether there was anything in the material to indicate that there was a ground pressed by the appellant in the Court of Appeal for resentencing on the assault occasioning actual bodily harm, separate from the sentence appeal on the grounds of manifest excessiveness.

HIS HONOUR: Yes.

MS JONES: Your Honour, the applicant’s submissions to the Court of Appeal, the written submissions, the totality of them is found at paragraph 5 of the reply filed today. It makes clear that the sentence appeal would be pressed if the conviction appeal is upheld. The effect of that is, we will only ask the Court of Appeal to consider the sentence if the conviction appeal is upheld.

HIS HONOUR: Yes.

MS JONES: There is reliance placed on the High Court decisions in Ryan and RH McL which consider section 569 of the Crimes Act. That provision is also found in the New South Wales legislation at section 7 of the Criminal Appeal Act and the history of those provisions is referred to in Ryan v The Queen, particularly in the judgment of Justice Aickin at page 11.

HIS HONOUR: Yes.

MS JONES: Where I am going with this, your Honour, is that there is no equivalent specific provision in the ACT legislation. Section 37O itself does not replicate those specific provisions that were considered in the High Court decisions of Ryan and McL.

HIS HONOUR: Yes, as I read the actual result in Ryan, at least according to the headnote which I think is accurate in this respect, it was that the Victoria provision, section 569(1), did not authorise interference with sentences separately imposed on counts not the subject of appeal. That is to say, there needed to be an appeal against sentence for - - -

MS JONES: I think the position with the decision in Ryan is a little bit more complicated in that there were, I think, five separate decisions. In fact in McL, the High Court there held that that provision did permit the Court to intervene on sentence in respect of matters that were not the subject of appeal.

HIS HONOUR: That is - - -

MS JONES: That is [2000] HCA 46; (2000) 203 CLR 452 and in that case they distinguished Ryan.

HIS HONOUR: Well, again, just going on the headnote, the holding is recorded as being that section 569 enabled the Court of Appeal to correct and increase sentences for convictions which were not quashed by the Court but were the subject of an appeal to it.

MS JONES: Yes, but they also held that the section enabled the Court to readjust the sentences. Basically the sentences were increased in this particular case to reflect the criminality of the offending behaviour. So the facts in McL assist in understanding the Court’s decision. The appellant there was convicted of 16 child sex offences at trial. Following trial, he appealed the convictions in relation to some and the Court of Appeal overturned four of the convictions.

The sentencing was such that it was probably not in conformity with Mill and Pearce in that the Court of Appeal considered that the sentence, the total sentence left over as it were was inadequate to reflect the criminality of the remaining offences and the Court of Appeal relied on section 569 to increase the sentences, notwithstanding there was no appeal against the sentence by the Crown and it was in those circumstances that 569 was used or relied upon.

The distinguishing feature with Ryan appears to be that the matters that were joined on one indictment were not perhaps properly joined on the indictment. They were disparate matters that had been for convenience placed on one indictment but the High Court in that case, although there are individual decisions, five separate decisions, Justice Brennan was of the view that there had been improper joinder and in those circumstances section 569 should not be used to bolster the sentences of the remaining counts.

There are observations, I think, in McL that I can take your Honour to that if there was – if the court – if the sentencing court approached sentences on multiple counts in the way that they now urge to do following Pearce and Mill, that is sentence for each individual offence appropriately rather than what used to happen where a global sentence was given and some of the individual sentences were – did not reflect the criminality of those individual offences following Pearce and Mill it is less likely that something like section 569 would need to be used. The instant appeal for application is an example of that. The Chief Justice has sentenced the applicant in these matters to separate sentences that reflect the criminality of the individual acts.

HIS HONOUR: Save that the degree of criminality of the act in question was considered by her Honour in a context where three offences were found to have occurred and in light of the Court of Appeal’s determination of the conviction appeal only two of those offences are now to be taken to have occurred.

MS JONES: Yes, and the court considered – had the opportunity to consider that aspect in the context of the manifest excessive appeal against the sentence.

HIS HONOUR: Well, it does not appear to have been put to the court in that context, or was it?

MS JONES: As the Court of Appeal noted the submissions on the sentence were extremely brief. The written submissions, as I said, are replicated at paragraph 5 of my friend’s reply and the oral submissions are replicated at paragraph 109 of the Court of Appeal’s decision. That was the extent of the submissions which raises another issue about this application, that is, that the applicant now seeks special leave to ventilate an issue that was not raised in the Court of Appeal, that is the exercise of this power to resentence following the upholding of the conviction appeal, a power we say the court does not have because the court does not have the specific power that exists in Victoria and is replicated in New South Wales.

Not only does the court not have that power but at no point was the Court of Appeal invited to exercise its power that is said to exist pursuant to section 37O. That is another difficulty the respondent says the applicant has in relation to the special leave application, that is, that it was not ventilated in the Court of Appeal, that the Court of Appeal had this power to resentence and it is being raised for the first time.

HIS HONOUR: Yes.

MS JONES: Now, I hear my friend referring to the written submissions and parts of the Court of Appeal judgment that indicate on my friend’s submission that the court did consider it had that power. My submission is that the written submissions and the oral submissions in no way raise this power above and beyond the power to consider the manifest, excessive ground. Your Honour, if I could take you to part of the judgment of Ryan to Justice Brennan’s judgment. It has been extracted in our response.

HIS HONOUR: I actually have the report, so if you can direct me to the page, that would be helpful.

MS JONES: Yes, at page 25 just above the final paragraph, your Honour - so the final paragraph commences “It was further submitted”, the last sentence – sorry, the last two sentences of the preceding paragraph where his Honour noted that:

The power to affirm the sentence or to substitute another sentence under s. 569(1) is not needed when there are appeals against that sentence under s. 567A or s. 568.

Those are the provisions which permit sentence appeals. His Honour notes that:

Section 569(1) must have an operation additional to that for which those sections provide.

HIS HONOUR: Yes. So what was not apparent to me was whether that was consistent with the reasoning of what I might call the majority of the Court.

MS JONES: It was not inconsistent - there were a number of different reasoning processes in the separate judgments in relation to whether section 569 was applicable, but certainly there are no contrary statements.

HIS HONOUR: Well, this is not necessarily against you - - -

MS JONES: No.

HIS HONOUR: - - - but if you look at page 20 in the judgment of Justice Wilson, I am just not sure that that is consistent with his Honour.

MS JONES: Your Honour which part of page 20?

HIS HONOUR: The second and third paragraphs. In any event, we are probably away from the main point in the case which you say whatever the scope of that Victorian provision it is not replicated in the Supreme Court Act (ACT).

MS JONES: No, and 37O talks about the order appealed from and it does not then allow the court to stray into and consider other orders that were made in the course of the sentencing process.

HIS HONOUR: Yes. All right, so your two essential points are that as a matter of law there is no power - - -

MS JONES: Yes.

HIS HONOUR: - - - and that as a matter of procedure, even if there were a power, the applicant did not ask the Court of Criminal Appeal to exercise it?

MS JONES: Yes, that is the case.

HIS HONOUR: All right.

MS JONES: Your Honour, could I also just refer to one case that is referred to in my friend’s reply of Tully v The Queen?

HIS HONOUR: Yes, I think that was drawn to my attention but I have not had the opportunity to read it.

MS JONES: My friend has a copy to hand up to your Honour.

HIS HONOUR: Yes, thank you.

MS JONES: This was a case – a factual situation not unlike McL where there are a number of child sex offences and some of the convictions were overturned in relation to some of those sentences – some of those convictions, leaving a number of convictions and sentences to follow. The discussion was whether the court had power to reset the non-parole period and the court there considered that section 37O did not give it the power to reset the non-parole period in the absence of an appeal against the order setting the non-parole period or an appeal against sentence, and then gave leave to the appellant to appeal out of time for the purpose of enabling the court to impose a different non-parole period.

HIS HONOUR: Yes, all right. Is there a particular passage that I should take into account?

MS JONES: Yes, sorry – paragraphs 11 through to 13.

HIS HONOUR: Thank you.

MS JONES: The court there considers the limitations in section 74 of the Crimes (Sentencing) Act, which I have referred to in the submissions.

HIS HONOUR: Yes.

MS JONES: One final point: in relation to the changed factual matrix, my submission is that clearly the Court of Appeal had that changed factual matrix in its mind when it considered the appeal in relation to the sentence.

HIS HONOUR: Yes.

MS JONES: Those are my submissions, your Honour.

HIS HONOUR: Thank you. Mr Archer, is there anything in reply?

MR ARCHER: Yes, there are a couple of matters. Some of them are by way of emphasis to our written reply. We say in relation to the matter that the exercise of the appellate jurisdiction of the court in this case was given effect to – the jurisdiction of the court was given effect to by the operation of section 37O of the Supreme Court Act. We say that the terms of section 37O on their face are wide and vest the court with a very large discretion in relation to the matter bounded only - - -

HIS HONOUR: In relation to which matter? Let me get this right. You have a conviction appeal and you have a sentence appeal.

MR ARCHER: In relation to the order that was before the court – that is, the order from the judge at first instance – there was the single order in relation to her Honour’s findings. That being so, the jurisdictional issue in the first instance lay as to whether or not there was relevantly an order and we say that given the width of the order in this case there was a single order of the court and within the confines of that jurisdictional point having been established, the court was able to vary the order even without, given the terms of section 37O, an application being made.

We say that the issue of the manifest excess was, given the finding of the Court in relation to the conviction appeal, otiose and its consideration of that issue was, in the way that the court went about it, misdirected, with respect, because the court was attempting to assess manifest excess in a factual context that no longer existed.

That is why the notice of appeal - and by submission it was put in a provisional way – indicated that the applicant in these proceedings was seeking a resentence if the Court of Appeal was of the mind to uphold the conviction appeal because the assessment of a manifest excess appeal in the factual context that applied after the upholding of the conviction appeal made no sense.

HIS HONOUR: Yes.

MR ARCHER: In relation to Tully, our submission is that it is an instructive case because the Court of Appeal there used the mechanism of an appeal which did not specify grounds but was simply an appeal to give it jurisdiction to make necessary adjustments to the sentence that applied following the upholding of conviction appeals.

HIS HONOUR: They were adjustments that it made under section 74 of the Crime (Sentencing) Act.

MR ARCHER: The court felt that section 74 was not sufficiently wide and therefore invited the appellant ultimately to appeal. Could I take your Honour to page 3 of the judgment, paragraphs 8, 10 through to 13. So because of constrictions that applied in respect of section 74 the Court of Appeal invited the appellant, as he became, to appeal so as to found jurisdiction of the court pursuant to section 37O.

HIS HONOUR: I see and then proceeded - - -

MR ARCHER: Then proceeded to adjust the sentence accordingly to take account of the fact that the factual matrix, as it were, had been varied as a result of its previous findings. I note in passing that that course was supported by the Crown in that particular case and that particular means of establishing sufficient jurisdiction in the court to give effect to a just sentence was an application made on behalf of an unrepresented applicant but also by the Crown in those proceedings.

So we say that Tully, so far as the Court of Appeal in the ACT is concerned, suggests that section 37O does apply in circumstances that are present in this case, that is, where there has been a finding that changes the structure of the sentence the obligation of the court is to give effect to an appropriate sentence having regard to the normal sentencing considerations that apply.

Could I, as a matter of emphasis also make this point that in respect of the sentence, the sentence imposed by her Honour Chief Justice Murrell had an element of suspension that applied to it. There were two sentences, one in respect of the assault occasioning actual bodily harm charge, a sentence in respect of the grievous bodily harm charge that was cumulated although partially concurrent and then an order of suspension was applied after the serving of a particular period of time.

Now, it reflects – it goes back to that issue concerning the utility of the sentence appeal. If the decision of the court was to effectively vary that overall sentence by the removal of the sentence in relation to the grievous bodily harm charge a residual discretion, in our submission, had to be

applied in the consideration of what was to happen in relation to that order of suspension.

What the Court of Appeal did, in our submission, and with respect, was to ignore that issue completely and treated the matter, as we say in our submission, simply as an appeal but the court did not have regard to the fact that the existence of an order of suspension required consideration whatever the outcome of the appeal in respect of the appeal against sentence was.

The approach taken by the court, with respect, seems to have been to ignore that issue with the effect that the applicant in these proceedings was required to serve the totality of his sentence notwithstanding that the sentencing judge at first instance had in respect of the sentence as a whole, that is, taking account of the actual bodily harm charge and the grievous bodily harm charge that her Honour suspended a significant portion of that overall sentence by the imposition of a suspended sentence order.

The suspension, if I could put it this way, kicked in, as it were, only shortly after the expiration of the sentence imposed in respect of the assault occasioning actual bodily harm charge. The result of the court’s order, and we say it was the result of the court not having regard to it as a sentencing exercise, was to compel the applicant in these proceedings to serve a disproportionately large portion of his sentence, that is all of it, when, in our submission, that could not have been the intent of the sentencing judge. They are my further submissions.

HIS HONOUR: What I think I will do in this matter, given that I need to look more carefully at the reply, is reserve my decision and give it at some stage tomorrow. It is a matter of finding an appropriate time. I will reserve and give my decision at 9.30 tomorrow. There will be no need for the attendance of counsel.

MR ARCHER: Thank you.

HIS HONOUR: The Court will now adjourn.

AT 3.27 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 11 OCTOBER 2016