The Queen v Kilic [2016] HCATrans 240 (13 October 2016)

Last Updated: 13 October 2016

[2016] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M105 of 2016

B e t w e e n -

THE QUEEN

Appellant

and

YAVAZ KILIC

Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 OCTOBER 2016, AT 10.01 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the appellant in this matter. (instructed by Solicitor for Public Prosecutions (Vic))

MR D.A. DANN, QC: If the Court pleases, I appear with my learned friend, MS G.F. CONNELLY, on behalf of the respondent. (instructed by Doogue O’Brien George)

BELL J: Yes, Mr Silbert.

MR SILBERT: If the Court pleases. The appellant’s outline of argument should have been handed to the Court at this stage.

BELL J: Yes.

MR SILBERT: If I can commence introductorily with, following it through sequentially, the Victorian Court of Appeal have improperly elevated current sentencing practices to have a pre-eminent importance amongst the criteria listed in section 5(2) of the Sentencing Act 1991; the Sentencing Act being the applicable legislation in Victoria.

Section 5(1) and (2) of that Act in their original form, introduced in 1991, largely replicated the common law. In fact, there was very little there that did not replicate the common law. Amongst the sections there, section 5(2)(b) refers to current sentencing practices as one of a number of criteria traditionally considered by a court sentencing an offender. It is submitted, and the gist of this appeal is that that as a criterion should have no greater weight than any other of the factors listed in the instinctive sentencing of offenders.

Now, the effect of a practice that has developed in Victoria has been to perhaps subvert the sentencing discretion, leading to an imposition of inappropriate sentences and frequent attempts by the Parliament to correct the situation. The case before the Court, the instant case, is a perfect example of this.

An examination of section 5 discloses numerous legislative attempts to correct what the legislature has seen as a problem. In 1991 there was a simple reproduction of the common law. That section of the Sentencing Act is now convoluted and extensive and looks like a provision from the Income Tax Assessment Act. It has expanded exponentially over the period.

In addition, and relevant to the present matter, the Crimes Act has been amended by the inclusion of offences of gross violence by the introduction of a defence of intentionally causing serious injury with gross violence introduced by sections 15A and 15B of the Crimes Act, which is causing serious in circumstances of gross violence.

Now, none of this, it is submitted, should be necessary. The genius of the common law is that it was always responsive to community expectations and notions of prevalence and that the proper application of sentencing principles was capable of adapting itself to individual offences, sentence for individual offences depending on community expectations, prevalence and the vice there measured by reference to the statutory maximum in the provision.

What is being put here is the idiosyncratic practice adopted in Victoria is inimical effectively to the proper sentencing of an offender and it is perfectly illustrated in this case and perhaps recalls the remarks of Chief Justice Gleeson in Wong when he remarked on the specialisation which has resulted that many judges now are not generalists and do not have the experience of practising in crime or having had any criminal practice and it is very hard, it is submitted, to instinctively synthesise if one does not have a background in a particular area.

As long ago as 1987, this Court in Veen (No 2) gave clear and easily understood directions on sentencing. Those directions have been restated on multiple occasions. I do not need to go through Hili which is cited at 11 of our list of authorities; Green, 16, Barbaro, 19 on the list and Pham at 22. I was going to say that although this Court eschews sentencing cases, there have been a number out of New South Wales, and I was about to say most seem to have come out of New South Wales, but when I look at those four, Barbaro and Pham both seem to have come out of Victoria so I will retract that.

BELL J: Mr Silbert, can I take this up with you.

MR SILBERT: Yes.

BELL J: As I read the sentencing judge’s reasons, his Honour did not make a finding that the case fell in the worst category, in the way that expression is sometimes used in a somewhat technical sense to describe that category of offences that attracts the maximum penalty.

MR SILBERT: Yes.

BELL J: So, to the extent that this Court has said in Ibbs v The Queen that the maximum penalty is reserved for offences of the worst type, I do not understand his Honour to have come to that conclusion and I think, apart from the absence of a finding in those terms, one looks to the circumstance that he imposed a sentence well below the maximum.

MR SILBERT: Yes, your Honour.

BELL J: Then one sees the Court of Appeal using the expression at an early stage in their Honours’ reasons, that the case was a worst category case.

MR SILBERT: Yes, your Honour.

BELL J: But they do not seem to be using it in the Ibbs sense. Now, I just wonder, I think the respondent submits that the use of the words “worst category” here is something of a distraction.

MR SILBERT: Yes. Well, as your Honour well knows, it is a characterisation instinctively as to low, medium and high, worst case category. It points to a range rather than to a particular sentence. It certainly points towards the maximum but when one looks at the sentencing judge’s comments, he describes it as as bad a case as he has seen in 38 years of practice.

His Honour was probably the most experienced criminal judge sitting on the County Court of Victoria and practised only as a defence criminal barrister. So it depends how one wants to analyse his words – not using the word “worst” but as bad a case as he has seen in 38 years. It has got to put it either low, medium or high and the submission is that it puts it into the upper echelon of seriousness. When the Court of Appeal came to look at it, they did use the word “worst” on a number of occasions.

BELL J: It is just I wonder if it really helps very much. What one is looking at here is the correctness of the Court of Appeal’s conclusion that this sentence was unreasonable or plainly unjust, judged by the criteria that are set out in the Sentencing Act, which include, among other factors, current sentencing practices.

MR SILBERT: Well, it may not help, your Honour, other than to say that when the Court of Appeal looked at it, they were clearly allocating it to, say, the upper-third of seriousness. The word “worst” may not have any magic other than if you are applying Ibbs and Veen technically, but it is a guideline, it is submitted, rather than to be used as a word of construction in relation to the interpretation of the statute, and it points in a direction for a serious matter.

Now, the relevance in relation to “worst”, as used by the Court of Appeal, as they went on to say, it was the second-highest sentence ever imposed for the offence in Victoria and proceeded to cite three, I think, cases which they called “comparable” which would hardly make it surprising that it was the second-highest in a situation where it was not a prevalent offence and it had not occurred on many occasions. Also, “worst category”, if you want to use the word “worst category”, rarely occurs. It is not the norm. The court was instinctively trying to place it in a range. Whether the word “worst” is critical to the decision or not, perhaps, is by the by.

BELL J: One can get into philosophical debates about whether, if one is dealing with a case in the worst category, any subjective feature of the offender can mitigate so as to produce a sentence less than the maximum.

MR SILBERT: Yes.

BELL J: But it seems to me that is not this case. No one, as I understand it, is submitting that it was wrong – the sentencing judge sentenced on the basis that he would take into account subjective features, including, importantly, age.

MR SILBERT: Yes.

BELL J: You do not contend that there was any – I withdraw that. The Court of Appeal accepted that that was appropriate, and that was the approach that their Honours adopted, and no one is putting the contrary.

MR SILBERT: No. There may be a philosophical matter raised by the contention and by the appellant’s response to the contention as to whether Twala, the New South Wales case, is applicable or not. My friends have replied to that and said it is restricted to murder cases in New South Wales, and that objectively assessing seriousness brings in other factors. One does not objectively assess seriousness; one looks at all the factors in evaluating it.

Now, the authorities cited in the appellant’s response to the notice of contention, at footnote 9 on page 3 of the appellant’s reply, cite a number of cases. A couple of those cases – the citation for R v Little at footnote 9 is wrong. It should be NSWCCA 210 at paragraph 33. But more importantly than that, the following case, De Jong & Ors v The Crown, also a New South Wales case, is a case involving aggravated burglary, which applies Twala, and says one objectively assesses the seriousness of the offence before following the Veen process and going into looking at the antecedence and character of the offender, and mitigating and other factors.

So we certainly take issue with the respondent’s annotated reply to the appellant’s response to the notice of contention. It is almost like a joinder and a subjoinder. But effectively there is no dispute. Our submission is that one looks at the objective seriousness of the offence, settles on some sort of range and then applies whatever mitigating factors and whatever factors personal to the offender are applicable. It has to work like that because one can have a very serious offence and an offender who is a youthful offender or someone with mental disabilities or so on, it has to go up and down depending on the nature of the offender, as Veen points out.

GORDON J: Mr Silbert, regardless of whether we talk about worst category or most serious or serious offence, I had understood that your complaint was that regardless of the label attached to it, what the Court of Appeal did was in effect mischaracterise the gravity of the offence by reassessing the gravity and ignoring in a sense findings made by the trial judge – well, not findings, but matters taken into account and then omitted to have taken into account other matters.

MR SILBERT: The answer to that is yes, that is the complaint, but it is not the sole complaint, your Honour, because the other - - -

GORDON J: It is a pretty good starting point.

MR SILBERT: Yes, it is certainly the starting point, and I could almost rest content with that except this business about current sentencing practices is a very live issue insofar as sentencing goes, with the Court of Appeal squashing sentences into ranges dependent on cases that are certainly not comparable within the way this Court spoke of comparable cases in Hili’s Case and so on. The words “comparable cases” are being misused. There is a footnote there referring to a case of Winch in Victoria where the Court of Appeal examined 276 sentencing decisions in reaching a conclusion as to adequacy or inadequacy of sentence.

Now, your Honour Justice Gordon is quite right, that is the complaint, there is a mischaracterisation. This Court is in as good a position as anyone else to look at the terrible photographs and to read the plea and see the remarks referred to by the sentencing judge. It is not brain – well, it is not a complicated situation, it is submitted, to properly characterise this as a very serious case in intentionally causing serious injury and the primary complaint is the Court of Appeal mischaracterised it, perhaps illegitimately using current sentencing practices as an aid.

GORDON J: Well, it is really two complaints, is it not? As I understood your submissions, there is a complaint about the mischaracterisation of the facts which in effect infected the whole process.

MR SILBERT: Yes.

GORDON J: Then there is a complaint regardless of that about the process adopted of having determined them. Is that the way it is put?

MR SILBERT: That is the crux of the complaint, your Honour. That is the crux of the appeal and it is the - that is the gist of what is complained of. What I have said in relation to current sentencing practices – and it may be peripheral to the whole exercise, based on what Justice Gordon has just said – but it is certainly - - -

KEANE J: Well, it may be that the matter goes off on a minor premise rather than the major premise in the sense that when one looks at what the Court of Appeal have treated as comparable sentences in relation to gauging the objective seriousness of this offending - there is one case which is actually one of domestic violence against a woman, which is Alipek, which is 10 years old and in relation to which the offender had spent time in psychiatric wards.

MR SILBERT: Yes, yes.

KEANE J: Apart from that, the other cases are not cases that are concerned with domestic violence against women.

MR SILBERT: No, they are not.

KEANE J: Their Honours do not seem to have adverted to the question of deterrence and domestic violence against women.

MR SILBERT: No, they have not, your Honour, and I agree it could go off on a minor premise. It depends how generous this Court feels when it comes to consider it but I agree completely with your Honour Justice Keane’s remarks there. There is a practice of using the word “comparable” cases which perhaps has been used rather loosely by this Court in cases such as Hili or it has been intentionally or unintentionally misinterpreted to refer to cases that are by no means comparable.

Your Honour is absolutely right. As I said, Winch looked at 276 cases which could not have been comparable in that case and here there are not comparable cases. This is about as extreme a case of domestic violence as one would ever find and there is no comparable case. As your Honour says, 10 years old and an offender with completely different characteristics, there is nothing that would make it in any way comparable.

GORDON J: Can I flip that question and ask this then? What is it that current sentencing practices in 2(b) is to refer to on the way in which you put - I understand you criticise the Court of Appeal for its current approach, not only in this case but in others. What is it that you say - what does it encapsulate?

MR SILBERT: A broad appreciation of what similar cases - objectively the range that they point to but not a mathematical calculation, which seems to be the practice. Now, this Court has said that it is consistency in application of principle, not numerical consistency. We get that as an incantation in every case and it is said by the Court of Appeal here in their judgment, consistency of principle, not numerical consistency but then quite clearly, it is submitted, they turn around and apply and do precisely the reverse.

BELL J: One of the difficulties, of course, is the difficulty that you adverted to earlier and that Chief Justice Gleeson referred to in Wong.

MR SILBERT: Yes.

BELL J: There is a practical difficulty about speaking of consistent application of principle and asking a person who does not have experience in the field to instinctively come up with a result that is an appropriate result.

MR SILBERT: Yes, there is and in fact in our submissions at 6.53 and 6.54, we draw attention in 6.53:

However, the appellant submits that the above rationale is erroneous – an offender only enjoys a legitimate expectation to be sentenced according to law – and if current sentencing practices are incorrect (or deficient), then an offender enjoys no right to be sentenced according to such practices. In short, if it were otherwise, past sentencing practices would operate as precedent, thus frustrating the proper exercise of the sentencing discretion reposed in judges. [see ground 4]

Now, that is repeated time and time again and it is uttered by President Maxwell in Ashdown’s Case. We seem to get very long sentencing decisions in Victoria. They all seem to run to 100 pages these days and there is a criticism in the following paragraph, 6.54, by Justice Ashley who perhaps more traditionally eschews the court’s recent approach and tries to bring it back to an instinctive approach.

GAGELER J: I must say I do have difficulty in knowing exactly what instinct as has to do with this process. In what sense to you use the word “instinct” which you have repeated.

MR SILBERT: Well, as young lawyers doing personal injury cases, one gets a feel as to what a personal injury is worth and that, I suppose, is an instinct. As criminal lawyers applying the criminal law, one can look at an offence and say that is worth between five and six years as a head sentence and four and three as a non-parole period. It is intangible, it is unable to be, I suppose, definitely the criteria, and it certainly depends on a feel as to what has happened in other cases without a minute examination of the facts of every other case, but it is colloquially, I suppose, a gut feel as to what something is worth and people practising in a particular field, whether it be crime or personal injuries or defamation, get a feel. Now, I do not know that I can give your Honour a better answer than that. I suppose it is based on a culmination of experience.

BELL J: It is also important – the expression is used in the context of synthesis and in that sense it is to be understood, one might think, conformably with the joint reasons in Veen (No 2) at 476 where their Honours speak of the conflicting purposes of punishment, the guideposts pointing as they put in different directions and what is being spoken of on a view of their Honours’ reasons is the impossibility of separating out the competing and often inconsistent purposes that are being weighed.

MR SILBERT: Yes, and, as I said already, it produces a legislative response in Victoria which makes the law even more difficult to apply with attempts to put in things called “baseline sentencing” which should simply not be necessary. If the court is sentencing in accordance with Veen (No 2) and getting it right 90 per cent of the time, there should be no need for legislative intervention, which makes the sentencing task even more difficult, and it also has a downward effect on sentencing judges because they are constrained, obviously, by the Court of Appeal decisions and one recently saw an instance of a County Court judge saying this is worth eight years but the Court of Appeal would never uphold eight years so I will give you three.

Now, sentencing is not being able to develop as it should and as a result of that the system is being contorted. I mean, there are a couple of other decisions there that I do not need to go to. They are referred to in paragraph 5 of our speaking notes, it is common for the Victorian Court of Appeal to hold that a sentence is inadequate but cannot be altered because of “current sentencing practices”.

Now, Hasan, which is number 14 on our list is one, Dalgliesh, 23 on our list, is another. Dalgliesh is a perfect example where it was an incest case, the prisoner’s 13-year-old daughter was impregnated as a result of the incest, was sentenced to three years’ gaol and the Court of Appeal said, well, this is much too low, it should be worth eight or nine years but because of current sentencing practices we will not interfere.

NETTLE J: But that is not so here. That was not the approach in this case, was it?

MR SILBERT: No, it was not the approach. They tried to rationalise it by reference to comparable cases and different criteria. It was not done here but it is frequently done and one of the bi-effects of this current sentencing practice is being misconstrued.

NETTLE J: Was Hasan or Dagliesh the subject of an application for special leave?

MR SILBERT: Dagliesh is the subject of an application for special leave and I only use it as an example of what occurs frequently.

NETTLE J: Can I come back to this case, to the comparable case point?

MR SILBERT: Yes.

NETTLE J: Did I understand you to say that none of the three cases to which the Court referred, the intentionally caused serious injury cases by bashing, are comparable cases in the relevant sense?

MR SILBERT: Yes, your Honour.

NETTLE J: Even though they are offences of intentionally causing serious injury in the upper end of the range of seriousness?

MR SILBERT: Yes, your Honour.

NETTLE J: Just because they are not burning cases or for some other reason?

MR SILBERT: No, not just because they are not burning cases. One of them is 10 years prior.

NETTLE J: Put aside Alipek.

MR SILBERT: Yes, put aside that. In the others, when one looks at the objective facts, they do not appear to be as serious as this. There are variations in the objective.

NETTLE J: I wonder why you say that. I looked at them yesterday and in each of them the injuries were inflicted as a result of sustained violence, continued even after the victim had fallen to the ground unconscious, therefore knowingly inflicting further violence on an unconscious victim and in each of those cases the victim was rendered to be in an incontinent vegetative state for the rest of their lives. In the case of Ali, he died just over two years later as a consequence of his injuries.

MR SILBERT: That is correct, your Honour. Ali was a very unusual case. What your Honour says is right. None of them effectively are domestic violence cases.

NETTLE J: No, but they are at the very upper end of the range of seriousness of intentionally cause serious injury.

MR SILBERT: Yes.

NETTLE J: Why then are they not relevant as comparable cases?

MR SILBERT: Even if they are relevant as comparable cases, they do not apply constraint on - - -

NETTLE J: No, put aside that and just concentrate. Are they relevant as comparable cases? I think they are but you submit they are not.

MR SILBERT: Well, yes.

NETTLE J: What else can you look at by way of comparable cases other than cases at the upper end of the range of seriousness?

MR SILBERT: Well, you cannot. If we concede that they are comparable, they do not apply a constraint effectively, it is submitted, on the applicable range in this case.

NETTLE J: They are guide posts of some kind.

MR SILBERT: Yes. Your Honour has actually spoken about this in DPP v EBD, in a number of cases. Your Honour, when sitting on the Court of Appeal in Victoria was probably swimming against the tide a little.

NETTLE J: It would not be the first time, Mr Silbert. Here all of the three cases, apart from Ali – and it is hard to imagine a worse case than Ali – had sentences considerably lower than the 14 years imposed by the sentencing judge in this case.

MR SILBERT: Yes, your Honour. Now, the submission is, even if comparable cases, should that provide a constraint on what is an applicable range for something characterised as worst case.

NETTLE J: It does not provide a constraint but it is an indication as to what the range might be, is it not?

MR SILBERT: Well, your Honour, the range is never going to go up in a situation where there is a ceiling there and that ceiling is being regarded as a constraint on the exercise of an - - -

NETTLE J: Unless the sentencing judge takes the view that current sentencing practices are inadequate, in which case he or she sentences above them, or should.

MR SILBERT: Well, should and does and frequently gets overturned.

NETTLE J: Put that aside.

MR SILBERT: Yes.

NETTLE J: Is it suggested that the current sentencing practices which, so far as they appear from the three cases here involved, were inadequate?

MR SILBERT: Well, on a maximum of 20 years, the answer to that is yes, your Honour.

NETTLE J: That such range as they reveal was an inadequate range for “intentionally cause serious injury”?

MR SILBERT: Yes, it is, and it is submitted that each case looked at afresh, if categorised as worst case and leaving the word “worst” out as suggested by Justice Bell, making it a serious case, puts it in in the upper - - -

NETTLE J: Upper end of the range?

MR SILBERT: - - - quartile, and the direction is to come from the maximum sentence in the statute, not from 276 other cases or three other cases, as the case may be.

NETTLE J: So, to go back to Zullo, it should be 15 years or up, in that territory?

MR SILBERT: Yes, your Honour, yes.

NETTLE J: Because it is in that top range?

MR SILBERT: Because it is in that top and as a result, as I say, the legislative response is to try and do something about it and that just creates more difficulty because if properly sentenced there should not be a need for a legislative response.

BELL J: If one goes to appeal book 200, paragraph 47, in the reasons of the Court of Appeal, the three cases that are identified as involving worst category offending - and understanding that the court may not be using that in the strict sense - - -

MR SILBERT: Yes, yes.

BELL J: - - - but those three cases do appear to be the foundation for the conclusion that the court drew with respect to manifest excess. Is that so?

MR SILBERT: Yes, it is.

BELL J: And Terrick was a Crown appeal where the Court of Appeal took into account consideration of double jeopardy - - -

MR SILBERT: Yes, your Honour.

BELL J: - - - in imposing a sentence that was less than would otherwise have been appropriate.

MR SILBERT: That is correct.

BELL J: And Arthars involved a person with psychiatric injury which on Muldrock would take it out of being used as a comparator.

MR SILBERT: Absolutely.

BELL J: Which leaves on with Ali where in fact a higher sentence was imposed.

MR SILBERT: That is correct, and I think Ali was the third trial conducted and Ali took place in a prison cell where someone had been completely and utterly belted into a vegetative state.

NETTLE J: I thought that in Arthars only one of the offenders was psychologically affected, the other was unaffected, and he got more.

MR SILBERT: Yes.

NETTLE J: He got the top sentence of 12, did he not?

MR SILBERT: Yes. And staying on page 200, your Honours will see under “Current sentencing practice: intentionally causing serious injury” the formulaic incantation of what comes out of Hili in paragraph 48:

Sentencing judges are required by s 5(2)(b) . . . to have regard to current sentencing practices. While sentences imposed in other cases are not precedents, nor should they be considered to restrict the sentencing judge’s instinctive synthesis, they do play a role in informing the instinctive synthesis, ‘particularly insofar [as] such an overview may provide a general guide to current sentencing practices’.

Now, that is a paragraph that we frequently see and it emanates out of Ali.

NETTLE J: That would be right unless the range as revealed by those cases is inadequate.

MR SILBERT: Absolutely, your Honour, absolutely. The effect is, as I say, it provides a ceiling because there is no opportunity effectively to argue that the sentence should be higher. There is an artificial constraint there - - -

BELL J: Which inevitably, as a matter of mathematical proposition, leads to a reduction in sentencing, so that the current sentencing practice will inevitably favour shorter sentences.

MR SILBERT: Yes, yes.

GORDON J: In effect, it imposes a new default maximum.

MR SILBERT: Well, that is the complaint, your Honour, it does. Again, using worst case but not necessarily the worst case, one should be looking at the maximum as the starting point. The court says it does that but then it reduces that maximum to some sort of mean as a result of so-called comparable cases.

NETTLE J: I mean, to be fair, there is no other way you can do it. You do start with the maximum. You have to then look at comparable cases to get a feel for where the range should properly lie. You might ultimately reach the view that despite those cases, such range is too low.

MR SILBERT: Yes.

NETTLE J: But unless you do reach that view that it is too low, you would go by it, would you not?

MR SILBERT: Well, logically yes, except to say the range is too low but because an offender in Victoria can expect to be sentenced in accordance with current sentencing practices, we are not going to increase this sentence - - -

NETTLE J: That is to exclude the final step I put to you.

MR SILBERT: That is to exclude – yes, it is.

NETTLE J: That is the error, you say.

MR SILBERT: That is the error. An appropriate sentence – an appropriate range should be alighted on and if it is higher than other cases, so be it. It is the appropriate sentence under Veen (No 2). Veen (No 2) really is a manual for sentencing I suppose for judges who have experience in criminal law, but if Veen (No 2) is not being followed then you are being guided by so-called comparable cases.

NETTLE J: It is hard to imagine a more experienced criminal judge than Justice Redlich.

MR SILBERT: Well, Judge Montgomery was probably - - -

NETTLE J: Might just pip him in terms of experience at the Bar but not by much if so.

MR SILBERT: Well, it is probably not a debate I should enter into, your Honour. We just say it is wrong.

BELL J: What you say is wrong is that there is no correct single sentence and the question is what was wrong with Judge Montgomery’s sentence?

MR SILBERT: Yes, well, that is the fundamental point, your Honour.

BELL J: Just for my own benefit, I see that section 5(2)(ab) directs attention to the baseline sentence for the offence. Do I understand there is no baseline sentence - - -

MR SILBERT: That was an attempt by the Parliament to introduce baseline sentencing which failed in the Court of Appeal and that provision will now go. It is of no effect at all - - -

BELL J: I see.

MR SILBERT: - - - it has been invalidated by judicial interpretation, so it is gone.

BELL J: Right.

MR SILBERT: So I do not know that speaking about worst case is really terribly profitable, given that we generally know we are talking about low, medium and high, or serious or more serious. One is never going to get a worst case on a Veen basis because it is always possible to envisage a worst case and - - -

BELL J: Even within that context though, it has always been recognised that one can envisage something worse than the particular facts.

MR SILBERT: Yes.

BELL J: The notion of a worst case does embrace a category of offence of such gravity that it deserves the maximum penalty, and that recognises that the vast majority of cases, including very serious cases, would not attract that penalty.

MR SILBERT: Yes, yes.

BELL J: But the matter I raised with you at the outset, Mr Silbert, is it seemed to me no one is suggesting that this case falls into that category.

MR SILBERT: No, it is not. I have dealt with the notice of contention, effectively, in saying that the New South Wales case of Twala is authority for objectively assessing where it lies on the spectrum of seriousness before applying matters personal to an offender or any other matters that might mitigate or aggravate. But, again, we are speaking of a range, and this Court has said many times there is no definite figure; there is a range, and only a range, and anywhere within the range is supportable.

BELL J: Do we find in the reasons of the Court of Appeal here, Mr Silbert, the matter that seems to inform one of your complaints relating to the concept of legitimate expectation in sentencing according to the - - -

MR SILBERT: I do not think it is articulated to the extent that it is in Ashdown or Dalgliesh, or numerous other cases that I have not bothered to go to. I do not think they articulate that. The Court of Appeal now conducts its sentencing hearings on the basis that an offender is entitled to be sentenced in accordance with legitimate expectations of what current sentencing practices are. We have imported an administrative law concept, effectively, into sentencing, and it has taken route and it has blossomed. So, in answer to your Honour’s direct question, no, but sub silentio it is there because that is exactly how all sentence appeals are dealt with.

KEANE J: Well, if there is an approach like that that is being applied, so that in effect current sentencing practice is being used as a control on sentences so that no offenders in Victoria get sentenced to just sentences, then that is perhaps a problem that can await resolution in a case that presents it, this not being such a case.

MR SILBERT: Yes. There are a couple in the pipeline, your Honour.

KEANE J: Well, then, sufficient unto the day.

MR SILBERT: Yes. Insofar as the comparable cases go, if one looks at Terrick, that your Honour Justice Bell referred to – where I think there was an 11 and a half year sentence, having regard to double jeopardy – it is interesting that what the Court of Appeal alighted on here was 10 and a half years, which suggests that it was simply trying to fit it within the framework of the Terrick figure.

It is a very peculiar figure, 10 and a half years – bringing down a sentence of 14 years to 10 and a half years – and the only explanation I can find is comparing it with 11 and a half in Terrick, again illegitimately because of double jeopardy but it fits it below Terrick. Again, no comparable reference to domestic violence, which is, we are told, a major social problem - - -

KEANE J: And involves the exercise of power in a particular situation over vulnerable people, and the abuse of the relationship.

MR SILBERT: Absolutely; all of that, your Honour. These photographs, which your Honours are unfortunate enough to have in the appeal book, are as bad forensic photographs as I have ever seen; much worse than one sees in a homicide case. They are terrible, terrible photographs.

NETTLE J: I think Mrs Alipek was worse by a long way.

MR SILBERT: Right, your Honour. Well, Ali might have been worse too, at the end of the day. There was comparison to a pizza in relation to the damage caused.

BELL J: Mr Silbert, can I ask one question about the approach that the primary judge took.

MR SILBERT: Yes.

BELL J: This is at appeal book 139. In paragraph 34, his Honour indicates the sentence that he would have imposed but for the plea of guilty.

MR SILBERT: Yes, your Honour.

BELL J: He says that it would have been one of 18 years with a non-parole period of 15 years.

MR SILBERT: Yes.

BELL J: Do I understand that that is the, as it were, aggregate that his Honour said he would have imposed, including the summary offences or is it an 18 year sentence that would have been imposed for the - - -

MR SILBERT: Well, he does not say. It appears that it would be an aggregate sentence.

BELL J: Under section 6AAA of the Sentencing Act, it would be appropriate to express the conclusion in that way. Is that right?

MR SILBERT: Yes, that is right and a judge is obliged to express it in that way and - - -

BELL J: Yes.

MR SILBERT: - - - the Court of Appeal says we should not do mathematical calculations and start with that figure and work backwards in assessing whether there is manifest excess or manifest inadequacy but, yes, that is the customary way in which a sentence on a plea of guilty is imposed.

BELL J: I see, yes.

MR SILBERT: There is a reference - and it is in paragraph 12 of our speaking notes to parity and current sentencing practices. I do not know that it has a lot to do with the ultimate sentence here. It may have just been a loose reference to the word “parity” except for the fact that the footnotes refer to Lowe and Postiglione which are both parity cases - - -

BELL J: Yes.

MR SILBERT: - - - but our response to that is that parity has no relevance and effectively current sentencing practices is a different concept, although, albeit philosophically, they certainly relate to treating like cases alike. There is no dispute with that. I do not know that the parity ground which is a separate ground there at ground 4, takes the matter any further than we have gone.

I think the other matters I was intending to deal with, comparable cases and the task of fixing an appropriate sentence, I have dealt with. It is submitted finally that the only explanation for the decision of the Court of

Appeal can be the current sentencing practices aspect because there is no reason given as to why the 14 years of Judge Montgomery is manifestly excessive and it is submitted that what the court has done is what House v The King says one should not do or simply substituted its own view for that of the primary judge.

It is not as if there is a reasoned process as to why it was manifestly excessive and why it should be reduced to 10 and a half years. The thought processes of the Court of Appeal can be gleaned from reading the decision and it is submitted that is no more sophisticated than that, effectively.

NETTLE J: It is all in paragraph 68, is it not?

MR SILBERT: Yes, your Honour.

NETTLE J: It is an assessment that the injuries here, although serious, were not as grave as those in the three cases mentioned and therefore it should be less.

MR SILBERT: Yes, that is as far as it goes. Again, that is applying restraint, effectively and giving undue weight to the current sentencing practice criterion in section 5.

GORDON J: Those two errors, the errors I put to you before – there is the error of the mischaracterisation of the findings and then there is the error as you would have it, the application of comparable cases.

MR SILBERT: Yes, your Honour. Unless there is something the Court wishes to ask me I think I have probably covered all of the points that I have mentioned there. If your Honours please.

BELL J: Thank you, Mr Silbert. Yes, Mr Dann.

MR DANN: If the Court pleases. In our respectful submission, the starting point must be to recognise what the Court of Appeal were called upon to do in this particular appeal because what they were required to do was consider and determine a ground of appeal alleging manifest excess, which is something, an exercise that the Court of Appeal engages in on a regular basis, a day in/day out basis. Yet, really, what the appellant alleges is that the Court of Appeal fell into a series of fundamental errors.

So there is a complaint that the Court of Appeal has failed to apply House principles. There is a complaint that the Court of Appeal just substituted their own opinion, their own view for the appropriate sentences. There is a complaint that the Court of Appeal sought to apply the parity principle – that is a ground of appeal that they sought to apply the parity principle as between sentences imposed in different cases. There is a complaint, seemingly the main complaint, that the Court of Appeal has adopted in this case an approach to current sentencing practices that is inconsistent with the approach set out by the High Court in a series of cases.

It is submitted that, when this case is properly analysed, that in fact there is no basis for those complaints and that this honourable Court should be slow to conclude that the Court of Appeal made errors of that kind. Of course, the exercise that the Court of Appeal were engaged in did not require an identification of specific sentencing error.

The exercise that the Court of Appeal were engaged in, and what happened in this case, a conclusion was reached taking into account a range of different matters and it is submitted that that conclusion was open in the particular circumstances of this case and we will attempt to develop that submission.

BELL J: Mr Dann, if one looks at the Court of Appeal’s assessment of the objective gravity of the offence on appeal book 195 at paragraph 31, their Honours say:

The offending . . . was truly horrific. The intentional setting on fire of any person with ensuing and entirely predictable life-threatening burns to a large part of the body, clearly places the case within the worst category of this offence.

Now, accepting that the court may not have been using the expression in the Ibbs sense, nonetheless, where do we find reasoning that explains why the primary judge erred in imposing a sentence of 14 years for an offence carrying a maximum of 20 years when the Court of Appeal considers that the objective gravity of this offence is as high as it puts it at paragraph 31?

MR DANN: Well, we say that you can follow the court’s process of reasoning through because what - - -

BELL J: Does it involve anything more than the comparison with the other cases?

MR DANN: Yes, it does, in our respectful submission, your Honour. That is certainly part of it because the exercise the court goes through is to set out all matters of aggravation, matters of mitigation, deal with the comparable cases that were provided both by the defence and the prosecution on the plea without the prosecution saying, well, these are just dissimilar cases that cannot be used in any comparative sense.

So, through this analysis you go through all these various stages, then you get to what I refer to as the worst category cases, then you have a situation where at paragraph 68, as we have just been referred to, a number of matters are marshalled in combination, and in terms of the objective gravity, there are matters that the Court of Appeal has regard to in terms of the relative nature of this objective gravity that lessens that consideration, such as lack of premeditation, the fact that this man tried to put the fire out – and these are issues we will develop - - -

BELL J: The matter that I am directing your attention to is this. Before one gets to any analysis by the appellate court of matters of aggravation and matters of mitigation one needs to identify the basis for the conclusion that the sentence imposed by the primary judge displayed error because it was too great a sentence - that conclusion. Bearing in mind the assessment of the gravity of the offence at paragraph 31, that seems to me to be a hurdle before you take us to the analysis that the Court of Appeal makes of why it comes to a different conclusion.

MR DANN: But that is part and parcel of that conclusion. That is set out at paragraph 68, that there is a whole range of factors, the personal factors combined with – so if I can just take you to that paragraph - - -

GORDON J: But you have to read that in the context of 67, do you not, and I thought what the Court of Appeal said is we have looked at all of this and there is a “disparity between the sentence imposed” and “we are satisfied that there has been a breach”. Is that not the one factor that they rely upon in order to justify their conclusion? That is the point that Justice Bell is putting to you.

MR DANN: But we say that has to be married into paragraph 68 because what paragraph 68 develops is that there is a combination here.

NETTLE J: So 68 is epexegetical of 67.

MR DANN:

When this consideration is combined with the lack of premeditation, the appellant’s genuine remorse, youth and lack of relevant prior offending, and prospects for rehabilitation, the conclusion is, on our view, inescapable that the sentence imposed on the primary charge was well beyond a reasonable exercise of the sentencing discretion.

I accept that what is set out at paragraph 67 and the exercise in terms of the comparison with the comparable cases and worst category offending seems to have had clearly a very significant influence on the eventual conclusion. I am not denying that. But I would ask this Court to accept it does not stand alone, that it is married with, combined with, in the words of the Court of Appeal, those other considerations.

So we say that that conclusion is sufficiently explained, that it was open to the Court of Appeal. We also say that this grant of leave that has been provided to the appellant is not an opportunity to visit or revisit complaints from other cases and I think the Court has raised that with my learned friend, Mr Silbert, but a lot of what is said this morning comes from other cases and deals with other cases, not something that happened in this particular case.

The legitimate expectation issue does not raise its head in this particular case. It might in Dalgliesh, it may have in Hasan where there was no appeal to this Court. It may in Dalgliesh and we say, as was put to my learned friend, that can await another day. It does not form any part of this case. So we direct our submissions – or attempt to – to what actually happened in this case and the grounds of appeal that are relied on in this - - -

NETTLE J: Mr Dann, you accept that the comparable cases do not define a range in which the sentence had not necessarily been imposed?

MR DANN: Correct.

NETTLE J: The question then is simply why was 14 used too much, even having regard to the personal circumstances adumbrated in 68?

MR DANN: Yes. Well, we say that the – to use the language of this Court in other cases that exercise in terms of the comparable cases did provide a pointer, a pointer - - -

NETTLE J: Sure.

MR DANN: - - - to manifest excess along with these other considerations, a significant pointer. I mean, it was just - - -

NETTLE J: To reiterate something said by the presiding Judge earlier on, why is 14 too much for an offence as bad as this?

MR DANN: Because of a whole range of factors that I wanted to take the Court to. I can try and do it right now if you want.

NETTLE J: You take your time.

MR DANN: But that is where the concern with grounds 1 and 2 were. We understood from what had been written and what had been said earlier, particularly in respect of ground 1, what was being really advanced was, well, how can it be if there is a finding of worst case, how can it be that a sentence of 14 years, which is 70 per cent of the maximum as imposed, considering Veen, how can then it be that there is a finding of manifest excess? Now, that is why we have raised this issue of what did the Court of Appeal have in mind when that term was actually used.

NETTLE J: Plainly they just meant in the most serious category of cases.

MR DANN: Yes.

NETTLE J: Not a worst category case in the Veen sense.

MR DANN: That is correct. So we did seek to make that point because that seemed to underpin ground 1, and once that is properly understood and explained we say that ground 1 as it is actually framed and what lies behind it falls away and we refer to Tait and Bartley in that particular regard, and do say that that Ibbs principle dealing with cases where the maximum penalty is reserved for cases of the worst kind is dealing with a different concept than what the Court of Appeal were dealing with here.

This is just a threshold real issue. There is no inconsistency between a finding of manifest excess in terms of a sentence of 70 per cent of the maximum penalty in the terms that the Court of Appeal were using – no necessary, necessary inconsistency in terms of the way the Court of Appeal was using the term “worst case”.

Secondly, the appellant has conceded, and as has been touched on, no one was suggesting that this was a type of case set out or reserved for coming anywhere near the maximum penalty. Indeed, the appellant concedes in the written form that a sentence of 14 years – and indeed, for the summary offences as well, all of the sentences were heavy. What is being put to me is how could the Court of Appeal arrive – or, really, the question is was it open for them to arrive at the conclusion that these sentences were manifestly excessive, and that is what we seek to develop.

Just dealing with this threshold issue, which is raised in our submission by ground 1; that threshold issue falls away when the term is properly understood in terms of the way that the Court of Appeal were using that term. It is set out at appeal book 195 and appeal book 201. I will not necessarily take the Court to those references, but it is very much tied in with the mechanism of injury – use of fire – and life-threatening injuries, because as the Court will be aware later on, the Court of Appeal goes on to talk about other aggravating factors that are not present, and it seems, in the words of the Court of Appeal, there can be variations in objective gravity which is where we get into ground 2 relied upon by the appellant.

That all occurs in a statutory context. Section 5(2) of the Sentencing Act requires a sentencing court to have regard, as has been said, to a number of matters, including – we have dealt with current sentencing practices – but including:

(c) the nature and gravity of the offence; and

(d) the offender’s culpability . . .

(daa) the impact of the offence on any victim . . .

(db) any injury, loss or damage –

to the victim. In ground 2, as we understood it, what lay behind that particular complaint was if you get to this finding of “worst case” – “worst case” in the sense of Veen – how can there be then further exploration of what aggravating features are there, what aggravating features are not there; is it reduced?

Again, we say, properly understood, that there is no necessary inconsistency between the exercise that the Court of Appeal embarked upon – and which in fact was required, we submit, by section 5(2)(b) and (c) of the Sentencing Act in terms of going through those steps. The Court of Appeal was entitled to ask itself and consider, did the circumstances of this particular case reveal whether the offending was or was not premeditated. Did this young person attempt or not attempt to put out the fire? Was this person injured in trying to put out the fire? Did this person have prior convictions for violence? Now, those considerations, all of which the Court of Appeal took into account in its ultimate conclusion, were necessary steps pursuant to the statutory framework.

BELL J: These were all matters that the sentencing judge took into account. The Court of Appeal was dealing with House error in the last of the senses that are described in the joint reasons.

MR DANN: That is correct, your Honour.

BELL J: So that one comes back to the question of the conclusion of manifest excess which is a conclusion that a sentence is plainly unreasonable or unjust and that does seem to depend upon the court’s view that it was out of line with current sentencing practices.

MR DANN: I think I have made the concession or recognition that it was largely influenced by that – sorry, by those considerations. I mean, it is just an unmistakable feature of this case that in terms of the cases dealing with intentional infliction of injury by fire, there was a very, very stark – very, very stark difference between the sentence imposed on this man, the respondent, and the sentences imposed in all those cases.

It was not one or two years. It is 10 years, nine years, eight years, it is a massive gulf between those sentences. That does not say that those sentences were right or it does not put a ceiling on what Judge Montgomery had to do or anything of that nature, but it had to be, in our respectful submission, a very relevant exercise to go through because as the defence and prosecution essentially asked Judge Montgomery to do by providing those cases.

It was not the defence just single-handedly saying, well, here are cases we have been able to find where fire has been used as a weapon. It was both defence and prosecution. No one was saying, well look, these are the cases but they are of no use because they are all different. That just did not happen in this particular case. So the Court of Appeal were entitled to, in our respectful submission, go through that exercise. I just wanted to pick up, if I may - - -

GAGELER J: Can I just ask a question in relation to the way in which you have just put it and earlier you used the language of the conclusion of the Court of Appeal being “open to it”. I wonder if that is a correct way of looking at our function in circumstances where there is a grant of special leave to appeal already we are dealing with the appeal. Is not our function to ask whether the conclusion reached by the Court of Appeal on the issue of manifest excessiveness was correct rather than to ask whether it was open?

MR DANN: Well, in our respectful submission, it has to be tied to the way the grounds of appeal are framed.

GAGELER J: The first ground seems to me to be cast quite broadly.

MR DANN: Well, that is why I went through what our understanding of that ground is, that it was more a threshold issue that you have got use of the term “worst case”. As a general issue, how can it be that 70 per cent of the maximum penalty can therefore be found to be manifestly excessive?

I just wanted to pick up on, if I could – and so that is why we are addressing each and every ground of appeal and say they are not made out. I mean, another way of putting it is one of these particular grounds made out. That is what the onus is on the appellant, to make good one of those grounds of appeal.

Now, I just wanted to reply because there was reference to this lack of recognition by the Court of Appeal, that this was a domestic violence case, that it involved domestic violence. So, can I just take the Court to some references in that regard in the Court of Appeal judgment? At paragraph 5, appeal book 187, the circumstances of the offending are there set out and very much at the forefront is that this was the offending in the context of a relationship that:

had become ruled by the appellant’s paranoia and controlling behaviour. The appellant’s offending followed upon the victim’s decision to leave the relationship.

So, those matters were well and truly recognised. At paragraph 8, the Court of Appeal again recognised, as his Honour had and quoted from his Honour:

In doing so, his Honour made it clear that general deterrence played a significant role in the appellant’s sentence, especially given the fact that this was a crime which involved violence in a domestic setting -

and then his Honour’s comment are there set out. At paragraph 65, appeal book 206, right at the bottom:

The fact that the injuries were inflicted within a relationship of trust between the appellant and the victim is an aggravating circumstance.

So, we would submit that the Court of Appeal did recognise, did recognise this very important aspect of this offending and make no bones about it. I mean we have raised this issue of what does worst case mean but we understand and concede that this was terrible offending. I mean, that is clear so anything we say is not to deny any of that but we say the Court of Appeal recognised the full context of the offending.

Just excuse me. Now, dealing with - I have taken the Court to the matters that we say the Court of Appeal was entitled to have regard to, in terms of premeditation, lack of prior convictions for violence, putting out the fire, ringing the ambulance, all those range of matters which the Court of Appeal did. Now, there has been a suggestion that the Court of Appeal came to different findings than Judge Montgomery, in respect of some of these factual matters.

Then there is a section of the appellant’s written outline that talks about different weighting and a range of matters are there set out. At the paragraph 6.68 “Different weighting - personal circumstances”, and there is reference to this issue of premeditation. There is reference to youth there is reference to prior convictions, there is reference to rehabilitation.

Now, when you actually read that part of the written outline, the only area where it is said to be there is any divergence or discrepancy between what the Court of Appeal found and what Judge Montgomery found is in the area of premeditation. Now, that issue was raised on the plea. The respondent’s counsel had made submissions that in fact this was not premeditated.

Judge Montgomery, the learned sentencing judge, dealt with this at appeal book 136, dealing with the submission that the offending was opportunistic, spontaneous, as opposed to being premeditated and planned, and this is set out:

Although acknowledging that the offending was serious, he submitted –

This is the learned sentencing judge:

that it could be distinguished from other offending in that it was spontaneous and not premeditated.

He submitted the gasoline used was not purchased and available for the purpose for the infliction of serious injury, but was used opportunistically.

I accept that submission in relation to the offending insofar as it refers to spontaneity and opportunism.

Now, in our respectful submission, in terms of the Court of Appeal’s treatment of that issue of premeditation, there is no inconsistency there and there is no inconsistency in respect to the other issues either.

KEANE J: Mr Dann, can I just ask you one thing arising out of page 138? In paragraph 26 his Honour acknowledges or comments that he has been provided with no psychiatric or psychological reports to explain the offending, and at 29 his Honour expresses the view:

It is difficult to assess your prospects of rehabilitation.

So his Honour is – I will not say sceptical – but is not disposed to make a positive finding as to prospects of rehabilitation. Their Honours in the Court of Appeal at paragraph 68 seem to proceed on, it would seem, a positive view of prospects for rehabilitation. What is the basis on which they proceed on what I think it is fair to say is a more positive view of those prospects than the primary judge?

MR DANN: Well, I think there was a recognition just in terms of youth, in terms of the background of this particular offender – I accept they certainly did not make a finding, well, the judge was in error, that Judge Montgomery was in error when it came to prospects of rehabilitation.

KEANE J: His Honour was plainly justified in not taking a positive view of the prospects of rehabilitation as a matter separate from the question of youth. He refers to the question of youth but in terms of prospects of rehabilitation, the best it gets for your client is the clear drug test, is it?

MR DANN: No, what was put before the Court of Appeal which was not referred to by his Honour was efforts that this person had gone to in custody in terms of – they are all in the appeal book, the courses, the - - -

KEANE J: The courses?

MR DANN: Yes. Just the reason I am raising that, your Honour referred to the drug test. But what his Honour had before him or what was provided to his Honour was a range of certificates and courses that indicated that whilst in custody this young person was attempting to do what he could to - - -

KEANE J: With that material before him, his Honour was not disposed to come to a positive view. On what basis did the Court of Appeal come to a different view about that matter, without concluding that his Honour was in error?

MR DANN: I am not sure – the degree of difference in the two views is hard to gauge.

KEANE J: Their Honours in the Court of Appeal at 68 are plainly treating prospects for rehabilitation as a favourable consideration whereas his Honour the primary judge was not disposed to and, it would seem to me, entitled not to be disposed to.

MR DANN: It was not the other way. It was not, “I’m making a finding that you have no prospects for rehabilitation.”

KEANE J: No, he was not. He was not disposed to make a positive finding.

MR DANN: Yes. It was like a question mark, so to speak.

KEANE J: Sceptical.

GORDON J: It did not give rise in his Honour’s synthesis of the ultimate sentence to a reduction. It was not one of the factors that went towards a lower sentence because no evidence was adduced to his psychiatric condition or his prospects for rehabilitation, whereas, when you get to 68 it seems to be put in positive terms.

MR DANN: Yes, but as I recall it – his Honour did acknowledge, as I recall it, that he had imposed a lesser sentence on account of this person’s youth, that youth in this particular circumstance, because of the nature of the offending, could not be given as much weight as it may be in other circumstances, but where there is that statement that his Honour made that the sentence has been reduced from what it otherwise would on account of youth, we say that they are not unrelated concepts – rehabilitation, youth and reduction of sentence. But I accept what is being put to me in terms of Judge Montgomery’s language in that particular part dealing with the lack of psychiatric material.

Section 5(2)(db) of the Sentencing Act requires that there be a consideration of any injury, loss or damage resulting from an offence. Again, as I have conceded, as bad as this offending was and as bad as the injuries to the victim were, the Court of Appeal had to - were required to consider the nature of the injuries and did, it seems, go through an exercise where those injuries – and using a term that subtle distinction should be avoided – did distinguish the injuries in this case from the absolutely extreme injuries in the cases that have already been referred to this morning of Ali, Arthars and Terrick where you are dealing with – for example, in Ali’s Case – someone who just cannot any longer care for themselves, dying three years after the offence, not able to walk; Arthars is permanently disabled; Terrick is physically and mentally disabled, severely disabled, cannot read, write, talk, walk.

GORDON J: None of those cases dealt with the loss or termination of a pregnancy.

MR DANN: That is correct, your Honour, we accept that.

GORDON J: You seem to have missed the Court of Appeal’s attention in 68.

MR DANN: Just in terms of that exercise, it was required, in our submission, by that part of the Sentencing Act that requires an assessment of injury. There is, in our submission, a distinction to be drawn. Without trying to downplay the nature of the injuries in this particular case, there was a distinction that was open to be drawn, and it was. Of course, what you had in this case was another ground of appeal dealing with a fresh evidence ground. That ground was - - -

BELL J: That was rejected.

MR DANN: - - - successfully resisted by the prosecution on the appeal on the basis that the medical evidence before the learned sentencing judge extended only to the possibility of permanent scarring to large areas of the complainant’s body, and that the medical evidence did not state in detail how or to what degree full functionality in the complainant’s hands or limbs would be diminished.

The reason I raise the second ground is because the medical evidence before the sentencing judge, which the Court of Appeal had to consider, did not go to that extent. That is why the fresh evidence ground was unsuccessful. The Court will be familiar with what that fresh evidence ground involved, or what intent was made to bring the court up to date with the complainant’s situation.

Now, dealing with the next ground, ground 3, whether it was said that there is an attempt to engage in parity reasoning as between sentences imposed in other cases. The short submission is that the Court of Appeal did no such thing. I am not sure whether in oral submissions this morning that was almost abandoned, that ground, but I will continue with these submissions. We say that what the court was concerned with was a concept of equal justice, the equal justice principle, which is said to lie at the heart of the consistent and fair system that like cases be treated alike, that different cases be treated differently.

My learned friend referred to the fact that the Court of Appeal referred to the case of Lowe, and the reference was to Justice Mason, who said this at page 610:

Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.

BELL J: But his Honour is here speaking of the unequal punishment of individuals for the same offence. I do not think that the appellant was placing a great deal of weight on ground 3 in the sense that it is accepted that the court went on to speak of an underlying principle of equal justice. One can go to the majority reasons in Green v The Queen and see reference to that. But to take us to Lowe and to read that passage from Justice Mason, really, if anything, highlights what was problematic in the footnote.

MR DANN: Well, the reason I took you to that, your Honour, is because they are the cases my learned friend relies on, but we say those cases, yes, they deal with parity but in the context in relationship to the wider principle of equal justice. As your Honour has identified, there are certainly other cases that talk of that relationship between parity as one aspect, one component of a wider equal justice principle. That is all the court – when I say all the court, that is what the court was concerned with. There was not a search for numerical equivalents. Excuse me one moment, your Honours. I was just going to take you to that part of Postiglione but I will continue.

When the court uses the term, as it did, “disparity” in their reasons, the Court of Appeal, it is our submission that the use of that term should be understood in the same way that that term was used in Munda and we have referred to that case in our written outline at page 39 - I will not take you to it specifically - but that disparity being one pointer to this issue of manifest excess. That is all the court were doing in terms of the use of that language of disparity and it was not any attempt to invoke the more specific parity principle. The background, of course, to all of that is that on the plea the respondent’s counsel in providing the cases that he did had specifically eschewed any sort of parity analysis and said I am not providing these for parity purposes. So, this Court - - -

BELL J: It would be inconceivable.

MR DANN: Yes, so this is where we started in terms of some of these grounds of appeal or complaints are alleging very, very basic errors and this Court should be very, very slow to accept that that is what the court was doing in this particular case, that they were trying to engage in some sort of parity exercise. It is not reflected in the end sentence, in any event.

To ground 4 and this is the complaint about current sentencing practices. The first submission is that that issue arises again in a statutory context where section 5(2)(b) makes it mandatory for the court to have regard to the current sentencing practices. Secondly, the appellant acknowledges in his written outline that the Court of Appeal expressly recognised the limitations involved in the use of the sentencing authority’s other cases that he had been provided.

So, in the written outline, in one sense, what is being said is, well, what was said about current sentencing practices is acceptable but what was done was something different. Because what was said, in our submission, by the Court of Appeal was consistent but what this Court has said in Hili, Pham, Green, Wong and Barbaro that, yes, we are required to have regard to current sentencing practices but those sentencing practices do not set limits. These other cases are not precedents. All of that was said in this particular case. The Court of Appeal referred to Hudson where all of those limitations are again set out. So, we say, in terms of what was said in Hili - if I can just take the Court to that case - where the comments of Chief Justice Gleeson in Wong are there set out:

“All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected singled instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

In Pham, a more recent decision of this Court, paragraph [26]:

As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

Lastly, the judgment of Justices Bell and Gageler at [46]:

The appellant is right to submit that the “reasonable consistency” to which the joint reasons in Hili refers is with respect to sentencing outcomes. The qualifier “reasonable” in this context is an acknowledgment both that sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases. It is in this connection that the joint reasons in Hili state –

which I have just set out. So, as the appellant acknowledges, the cases of intentionally causing injury by fire did provide – did provide a yardstick, not precedence, not ceilings or caps.

BELL J: When you say that, Mr Dann, if you look at the Court of Appeal’s observation at appeal book 195, paragraph 32, their Honours observe that:

The use of fire to intentionally inflict serious injuries is a rarity within the criminal law.

Now, that immediately throws up some of the limitations of speaking of current sentencing practices respecting an offence of that kind. It is a “rare” offence and so, whilst one may get some assistance from looking at other cases, surely there has to be a limitation to it.

MR DANN: We accept that, your Honour. That has been said in other – I think it might have even been said in Pham, that the degree of assistance or guidance can fluctuate and if the offending is rare that brings into play that consideration. But here, I mean, in a sense you had from both sides, you had the full set in respect of those cases of intentionally causing injury by fire. The mechanism of causing injury is very, very specific. It is not comparing apples and oranges, as was once said.

It is the same mechanism in each of those cases and we call into play Alipek here as well in terms of this part of the submission and when as limited – or with the limitations involved in that exercise, we again make the point that the comparison was absolutely stark between the sentence that had been imposed on this man and in those other cases.

Alipek involved a more serious charge of attempted murder. It carried with it an intention to kill. The injuries were worse in terms of 40 per cent burns. There were prior convictions for violence. It was after a trial. Yes, it was said that the offender had a depleted mental state but that, in our respectful submission, did not mean that this was an irrelevant case in terms of any guidance or assistance along with those other cases, and the appellant received and had received a significantly longer sentence than that which was imposed in Alipek.

I mean, that had to be, in our respectful submission, one of a number of relevant considerations in this particular area. In terms of that command to have regard to current sentencing practices, comparable cases have been recognised to form a very important part of that process and as this Court undertook the exercise in Hili at paragraph 67, ultimately in terms of the comparable cases that were said to be directly relevant, we get to paragraph 67, dealing with two cases that were said to be closely comparable:

The sentences passed on the applicants at first instance were very much lower than those passed in either of those cases -

those two cases:

Allowing, as one must, for the different circumstances of each of the cases under consideration, the difference in sentences passed on the applicants at first instance, and those that were passed on the other offenders, is so large that the Court of Criminal Appeal was right to conclude that “there must have been some misapplication of principle [by the sentencing judge], even though where and how is not apparent from the statement of reasons”.

Now, it is our respectful submission that the Court of Appeal were not involved in some different exercise as to what is set out in Hili. They were not on, and have not been on some sort of tangent on their own, walking down some path which is completely different to what is set out by this honourable Court in those types of cases.

They are, in terms of what is said, in terms of the recognition of limitations, completely consistent with those cases. In terms of what was done, in terms of the recognition given to those cases, that was also consistent with again what was said in Munda about that level of disparity providing a pointer, a pointer to, in that case, inadequacy, but here the manifestly excessive sentence.

Now, the appellant in the written outline refers to Justice of Appeal Nettle, as he then was, as adopting the correct approach, the correct approach that should be followed. So we just wanted to take you to paragraph 30 of OJA at page 196:

Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.

Now, it is our submission that the cases, firstly, dealing with the infliction of injury by fire, including Alipek, were sufficiently comparable to provide guidance, and the yardstick for the court. Then, in this case, we had the added consideration of the respondent’s sentence being at the extreme end of the existing range – not that that meant that the existing range was the correct range – but it is the highest sentence ever imposed for a person pleading guilty to this offence.

The court was, as was mentioned in argument already, we say entitled to look at those cases also at the extreme end of the range for guidance and assistance with all of those limitations. By way of that general yardstick, again, that exercise provided another pointer. It did not determine in itself, we do not say, that that was the end of the case, that that is all they were worried about. We do not say that at all. But it did provide an important, and, we acknowledge, very influential pointer to the Court of Appeal and we say rightfully so.

BELL J: I think you have made that point.

MR DANN: Now, the complaint about this now receiving pre-eminence, I think I have dealt with in terms of – that is maybe a complaint that is dealt with elsewhere, because this is not a case where it is said we think the sentence was perfectly reasonable in the first place, but because of those other cases or because of current sentencing practices we feel constrained to lower the sentence. That is just not this case.

Ground 5, if I can take the Court there, complains that, essentially, the Court of Appeal failed to apply House principles and just substituted their own opinion for the appropriate sentences. We say, again, that that is alleging very, very basic error in terms of this Court of Appeal who regularly day in and day out deal with the complaint of manifest excess or a ground of appeal.

We say that, by way of submission, it can be seen that the Court of Appeal arrived at a conclusion by a process of analysis that took in, certainly, those comparisons, but took in regard to what mitigating factors there were, including plea of guilty, remorse, youth, efforts at rehabilitation, and what aggravating factors there were and were not. It was not simply the substitution for the court’s view of the appropriate sentence. It was in a statutory context, and it was aligned to this equal justice principle and the search for consistency, which, in our submission, is a virtue.

So, rather than being just heavy, as the appellant concedes, the Court of Appeal were in fact correct, when all of those considerations are combined, as they were, to regard this sentence as manifestly excessive notwithstanding, as we have already conceded, the very serious nature of the offending.

I need to say something, your Honours, about the summary offences because they, as I understand it, form part of the appeal and they are attacked as well.

BELL J: Yes.

MR DANN: Again, same submission. It is not just the court substituting its own view. If you look at the proceeds of crime summary offence, for example, you have a sentence of 12 months, 50 per cent of the maximum, for three credit cards, notwithstanding prior convictions for dishonesty, yes, but – and then, as I recall it, cumulation on top of that sentence as well – six months.

BELL J: In relation to the prohibited weapon, you have the use of the weapon, as is pointed out I think in the appellant’s submissions, on two occasions in the course of this incident against a background of someone with repeated convictions for offences of that character and, indeed, was one of the matters that he was on a CSO for or on bail related to a prohibited weapon offence?

MR DANN: I think it may have been - the CCO?

BELL J: Yes, a CCO.

MR DANN: Yes, your Honour.

BELL J: Well, Mr Dann, one would want to see some reasoning, would one not, as to why the sentence of 12 months for that offence was excessive in the sense of manifestly unreasonable or unjust.

MR DANN: Yes, I understand what your Honour is putting to me, but that - - -

BELL J: Really, Mr Dann, if your submissions in relation to the principal offence succeed, then inevitably that must flow on to the summary offences and one might think the reverse would be the same.

MR DANN: Yes, not necessarily.

BELL J: Mr Dann, the matter I am raising with you is, is it your strongest point to attempt to persuade us that the conclusion of manifest excess in relation to the sentence for the prohibited weapon was - - -

MR DANN: Your Honour, I understand.

BELL J: Yes.

MR DANN: Yes. Well, I did start with the credit cards offence, but the finding as to manifest excess, that came after all of those other matters – for those two summary offences were marshalled with respect to the principal offence. But as part of the appeal there needs to be some assessment of course of whether that finding was open for those offences as well. But we do rely on - - -

BELL J: Once the Court of Appeal concluded that the sentence for the principal offence was manifestly excessive, it was then open on your analysis for the court to consider the summary offences? Is that the way it is put?

MR DANN: Yes, yes. In a sense, the sentencing discretion was re-opened. That brings me, I think, to the notice of contention and it has almost really been dealt with right at the start. Our concern in raising that notice of contention was this argument that we perceived was part of ground 1, that, if this is worst case in the sense of Veen, how can you arrive at a finding of manifest excess for 70 per cent of the maximum sentence? But it seems that that submission is not really being maintained, that there is - - -

BELL J: Mr Dann, it was not said by the sentencing judge that the offence was in the worst category in the way that expression is used in the criminal law as an offence of such objective gravity as to justify the imposition of the maximum sentence. Not only did his Honour not say that it was in the worst category but plainly he did not sentence on that view because he imposed a sentence considerably lower than the maximum sentence.

MR DANN: Yes, and our point really is by way of the notice of contention, which, whatever way you look at this concept of worst case - as was maintained on the plea, this, as bad as it was, did not fall into that category. It was not put as part of the submissions on the plea. What was put by the prosecution is that it was at the high end.

BELL J: That is how his Honour sentenced.

MR DANN: Yes, and we do not argue with that proposition. So whether we need to get into the New South Wales cases and the New South Wales approach perhaps, again, may be a question left for another day. Can I raise two last matters, it is appropriate for the Court – both really are related to this issue of, if any of the grounds of appeal are made out, what is then the appropriate course? If it is found that there has been an error in approach via one of these grounds of appeal, such as to allow the appeal, we would say that the appropriate course would be to remit the matter to the Court of Appeal, as has been consistently done - Pham being one particular example, for resentence in accordance with this Court’s reasons.

BELL J: Well, Mr Dann, the one ground that was before the Court of Appeal was a ground of manifest excess. If this Court were to conclude that the sentence imposed by Judge Montgomery was not manifestly excessive, that would be the end of the matter, would it not?

MR DANN: We tie our submissions always to the grounds of appeal. If it is said, for example, the court was engaged in parity reasoning; if that ground of appeal, for example, was upheld, that is not quite as simple as it is manifestly excessive or it is not. Errors of principle are raised within these grounds of appeal; that is the point I am trying to make.

BELL J: I understand, Mr Dann, but grounds 1 and 4 and 5 really take up the more general proposition, do they not?

MR DANN: Well, we thought 1 was a sort of threshold issue, which we have discussed. Ground 2 is about gravity within the worst case, which is sort of a principle matter, and 3 is the parity matter. Ground 4 relates to the current sentencing practices. What is being complained of is an error of approach. That is similar to - - -

BELL J: Well, there is more than that. Ground 5 complains of the failure to approach the matter consistently with House v The King as to the conclusion of manifest excess.

MR DANN: Substituting their own view; that is ground 5. It may be different outcomes for different grounds of appeal. We cannot foreshadow.

BELL J: All right.

MR DANN: Last, I am instructed to raise, if the Court permits, an issue in respect to costs. If the appeal is dismissed, an application would be made for costs on behalf of the respondent. We would also ask the Court, even if the appeal was upheld, to consider the award of costs in circumstances where this is a Crown appeal against the decision of the Court of Appeal – very different considerations, I accept; two very different situations.

BELL J: It is unusual to make an order for costs in a criminal matter. Is there some particular basis for this application?

MR DANN: Yes, your Honour, there is very much a practical basis - - -

KEANE J: No, no, a legal basis.

BELL J: No, no, a legal basis, Mr Dann. Costs are not usually awarded in relation to criminal matters. Do you have a legal basis?

MR DANN: There have been occasions where this Court has previously, in a criminal matter, awarded costs against the Crown.

BELL J: Yes.

MR DANN: I can provide an example of Whitworth, if that assists the Court, but that is as to the first situation, where the appeal is unsuccessful. The second situation - - -

KEANE J: For no other reason; just simple lack of success?

MR DANN: Yes, simple lack of success in circumstances where it is the Crown who has appealed.

KEANE J: Well, in the run of cases where the Crown has appealed and loses the general rule is that there is no order as to costs simply by reason of the lack of success. Is there some other reason? Is there some reason peculiar to this case that would take this case out of that ordinary run?

MR DANN: Well, see, there is often – the difficulties – there is often, for example, at the special leave stage a discussion about costs and whether the Crown in bringing the appeal would indemnify costs. That regularly happens as part of the special leave hearing. It did not happen as part of this case.

BELL J: Mr Dann, your experience and the experience of some of us on the Bench may differ in this regard. There is a – commonly, in criminal cases costs orders are not made. True enough, on occasions a cost order is made in circumstances in which a prosecution appeal is unsuccessful and there is a consideration perhaps that the matter should not have been brought or something of that character but it is very much outside the norm. Now, so far you have identified no basis for a departure from the usual rule.

MR DANN: Well, the departure – I accept that what I am asking the Court to consider is here is a Crown appeal in circumstances where a man is in custody to this Court if – in the first situation if that appeal is unsuccessful, yes it is not usual, yes it is outside the common experience or common practice of the Court but this man is put at a severe disadvantage in those particular circumstances. I raise that – I am instructed to raise that.

BELL J: All right, yes.

MR DANN: They are the matters that are raised on behalf of the respondent.

BELL J: Yes, thank you. Yes, Mr Silbert.

MR SILBERT: No reply, your Honour.

BELL J: Yes, very well. The Court will reserve its decision in this matter. Adjourn the Court to 9.30 am tomorrow in Sydney.

AT 11.52 AM THE MATTER WAS ADJOURNED