[2016] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Sydney			No S271 of 2015

B e t w e e n -

PHILIP NGUYEN

Appellant

and

THE QUEEN

Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 2016, AT 10.00 AM

Copyright in the High Court of Australia

MS P.M. WASS, SC:   If the Court pleases, I appear with my learned friend, MS G.E.L. HUXLEY.  (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC:   I appear with my learned friend, MR H. BAKER, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, thank you, Mr Pickering.  Yes, Ms Wass.

MS WASS:   Your Honours, I hope that a document has come forward, if not earlier, but now, being the three pages of our outline.  Before I go to that document which sets out some more detailed references, could I put the appellant’s case in respect of ground 1 in respect of – at a higher level?  There are three reasons, in our submission, why no modified De Simoni principle is applicable, either by way of analogy or otherwise.

	First, there is a real question as to whether or not it can ever arise in the circumstances of this case.  The common law principles set out by Chief Justice Gibbs at page 389 of De Simoni, uncontained by any statutory pleading or requirement in the indictment, that is, the fundamental principle, is that one cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.  It arises from the important tenet that an accused person will not be exposed to punishment for any matters not pleaded to be or found to be guilty.

	The words at page 388 of De Simoni are important ones, in our submission, and that is in considering whether or not matters are taken into consideration or relied on by a sentencing judge.  There are words that say, at 388:

and by reason of it inflicts a penalty more severe than he would otherwise have imposed –

To mandate a restriction of important flexibility in sentencing, as dictated by this Court in cases such as Markarian, and to restrict the important instinctive synthesis required of a sentencing judge without a fundamental principle that underpins it is itself an error.  The fundamental principle set out in De Simoni is as I have described it – that is, a protection for an accused person for being punished for matters in respect of which he has not been found guilty.  That fundamental principle is lacking in this case.

	The second reason is it is not possible or useful to characterise a particular state of mind as being the absence of a factor, in the same way as one would consider external elements.  The third reason is that when determining objective seriousness of the appellant’s offending, the state of mind was whether or not the appellant genuinely believed his actions were necessary to defend himself.  That state of mind cannot be divorced from his actions.

	One cannot in a mathematical way subtract a state of mind from an accused person’s actions and then consider whether or not the person may or may not be guilty.  For the learned sentencing judge in this case to consider a hypothetical case on the myriad of possibilities that arise in manslaughter cases, to compare a situation where an offender knew, in this case, that he was shooting a police officer but, nonetheless, still held a belief consistent with the plea to manslaughter is an unexceptional response to the Crown’s submission that this was a worst‑case scenario.

NETTLE J:   How could it possibly be if he knew it were a police officer that he was shooting in self‑defence or believed that he was?

MS WASS:   That, with respect, will depend on the circumstances.  

NETTLE J:   The only circumstances here are that he did not understand that the police officer was, in fact, a police officer doing his lawful duty.

MS WASS:   In our submission, the relevant state of mind was that he acted in a way fearing for his safety.  As a matter of fact in this case, he believed them to be fake police officers.

NETTLE J:   No doubt about that, but if he had known as was supposed that the deceased was a police officer he could not possibly have feared for his safety, could he?

MS WASS:   Well, that may be so but then that begs the question whether he would have acted in that way at all and, in our submission, when the learned sentencing judge was carrying out the hypothetical comparison one does not import into that that he must have necessarily not have feared.

NETTLE J:   But aside the De Simoni label that the Court of Criminal Appeal put upon it, they were surely correct to say that if it were supposed that the appellant had known that the deceased was a police officer and had fired at him with intent to inflict grievous bodily harm, it would not have been an unlawful and dangerous act manslaughter.

MS WASS:   It certainly would have been an utterly different case.

NETTLE J:   And yet that seems to have been the comparison that the trial judge engaged in for the purposes of assessing the gravity of the subject offence.

MS WASS:   With respect, we say not.  Her Honour made it clear in making the comparison that she was still considering manslaughter.  It proceeds, in our submission, from a presumption that one can never have a manslaughter in the death of a police officer where you know it to be a police officer. With respect, we say that asks the wrong question because the relevant state of mind is about fear.  There are cases where there has been, nonetheless, not because of fear but because of other reasons, the manslaughter of police officers.

	That is not the fundamental question, with respect, we say.  We say the fundamental question is the fear.  If that fear is genuinely held, that grounds the manslaughter and to mathematically remove from the debate “Well, if he had known it was a police officer, he would be guilty of murder” in our submission, asks the wrong question because one has no idea what he would have done had he known it was a police officer because his fears were genuinely held.

	The case, with respect, would not arise and all her Honour was doing was responding to a submission said that this is the worst‑case scenario and her Honour says, “I could imagine a worst‑case scenario of an offender, not this one, where if he had known, everything else being equal and a manslaughter charge being open, that would be more serious”.  And that, in our submission, is utterly unexceptional and it does not necessarily follow that one would be guilty of murder.  It may be on the facts of this case that it would be but, in our submission, that was not to the point.

KEANE J:   How on the facts of this case could it not be so?  How could it not be so that it would not have been murder if he had known?

MS WASS:   If the appellant knew it was a police officer and knew they were not there otherwise to harm him, and that is the ‑ ‑ ‑

KEANE J:   If he had known that it was a police officer, there would simply have been no basis upon which he could have been other than guilty of murder having initiated this firefight.

MS WASS:   If he did not genuinely fear for his safety – one has to impose on that all sorts of assumptions which simply the facts do not allow one to do.  One has to assume that he was not fearful for his safety, that they would act in a way that one would expect police officers to act.

KEANE J:   But you cannot hypothesise that he would have genuinely feared for his safety if he had known they were police officers.

MS WASS:   That is the difficulty, one cannot decide either way and that is not what her Honour was doing.

KEANE J:   No, you can.  It is not a hypothesis, it is open.  The hypothesis that he could have genuinely feared for his safety in initiating the firefight is not a hypothesis that is open if he knew that they were police officers.

MS WASS:   In the facts of this case your Honour may well be right.  All we say ‑ ‑ ‑

KEANE J:   Well, if that is the case in the facts of this case, that is sufficient under the day, is it not?

MS WASS:   No, your Honour, we say not because what her Honour was doing was assuming that manslaughter was otherwise open but simply responding to a case ‑ and there may well be a case where a person believes the person to be a police officer and nonetheless genuinely fears.  It is about the state of mind as to the fear, not what gives rise to it that is important, in our submission.

BELL J:   Ms Wass, just turning to her Honour’s statement that gives rise to this ground which is at appeal book 60, paragraph 57, her Honour is dealing with a submission that each of the offences fell in the worst category and she rejects that proposition in relation to each offence.  She then says:

It would have been otherwise were the offender to have shot at Constable Crews intending to inflict grievous bodily harm knowing or believing he was a police officer – 

That was her conclusion, as I read her Honour’s reasons, with relation to the wound with intent to do grievous bodily harm count.  Then she goes on to say – 

or were he with that same state of awareness – 

that is, a belief that the person was a police officer – 

to have pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him.

Now, that, of course, is not the basis upon which the plea was entered, am I right?

MS WASS:   Yes, that is – precisely.

BELL J:   So, am I right in understanding the plea was entered on the basis that the appellant admitted that he discharged the firearm intending to do grievous bodily harm to the deceased?  He admitted that the deceased died in consequence of the firing of a shot for which he bore a substantial contribution by his conduct.  So, that made out murder absent excessive self‑defence.  What her Honour is looking at here is a case of manslaughter involving a killing by an unlawful and dangerous act involving the discharge of a firearm, but not the circumstances of this offence.  Is that right?

MS WASS:   Yes, that is the submission we make.  Her Honour is simply postulating a hypothetical to meet the submission that said this is the worst‑case scenario and her Honour, in our submission, is simply saying, “Well, I can imagine of other scenarios, not dissimilar, but not the same, to this one, but where the offender knew the person was a police officer”.  That might be in that category.

BELL J:   If one looks at the Court of Criminal Appeal, and if one ignores the court’s response to the submission that they were asked to deal with, which was the De Simoni submission, and one goes to appeal book 106 at paragraph 52, their Honours conclude it was “an extraneous or irrelevant consideration” to have regard to how things might have been had the appellant known that the deceased was a police officer.  Now, what is wrong with that as an analysis?

MS WASS:   In our submission, what is wrong with the analysis is that it assumes that her Honour was dealing with the case in point when her Honour made the observations that she did, rather than dealing with a different hypothetical situation, and so when a sentencing judge is asked to determine where the offending sits in the spectrum, a sentencing judge is not restricted to take all of those matters of the particular offence and subtract some things and add some other things.  The sentencing judge is asked to identify and consider whether or not it is in the worst‑case category, and that is done by taking into account any number of things and, in particular in manslaughter, a myriad of things that might make it more or less serious.

	For example, the Crown accepted and in fact submitted at the sentence proceedings that this kind of manslaughter may or may not be more serious than gross negligence, and so one can ‑ a sentencing judge is not restricted when looking at the comparatives to the case at hand.

GORDON J:   Can I just come back to 57 on page 60 where Justice Bell has taken you to the last three lines of that paragraph in relation to the manslaughter charge which is the subject of the sentencing?  What is the “state of awareness” that is referred to there in the third last line?  Is it not the belief that he was a police officer?

MS WASS:   I believe so.  In the comparative, I believe that is what her Honour is referring to.  So, for those reasons, we do not – it is not necessarily the case that one simply removes a factor and then one automatically has murder because her Honour is not dealing with that circumstance at all, in our submission.

BELL J:   Accepting that for present purposes, the Court of Criminal Appeal considered it was an irrelevant consideration to the assessment of the objective seriousness of this appellant’s culpability for manslaughter to take into account that he did not know that the person whose death he occasioned was a police officer.  Now, at a foundational level, what is wrong with that?  Your answer is, well, she was simply responding to a worst‑case submission but is it fair to read the Court of Criminal Appeal as concluding, as they undoubtedly do, this sentence was manifestly inadequate and considering perhaps that amongst the reasons that might have led to that was giving weight to a consideration that was an irrelevant consideration.

MS WASS:   For the reasons that we have said, we say, it is not irrelevant because her Honour was postulating purely an example by which it might be compared, but to take into account a state of mind for the particular offending is one of the fundamental things a sentencing judge is required to do, and the fact that that is also an element of the particular offence, in our submission, again is unremarkable.  There is no sense of “double counting”, that is a mathematical way of looking at it, in our submission.  It is an element of the offence.  It is required to be taken into account.  The appellant’s state of mind is fundamental to what he did.  It is fundamental to the manslaughter case and so far be it from being an irrelevant consideration we would say it was a highly relevant consideration, so long as, in the sentencing process, her Honour has regard to the fact that that is what made it manslaughter.  

NETTLE J:   Ms Wass, when you said before it is possible to conceive of circumstances in which someone knowing that the man oncoming is a police officer, nonetheless, shoots at them but is guilty only – as it was here, is guilty only of manslaughter because they believe they are in danger, would you have in mind something such as that the accused irrationally assumes that the police officer is going to act with excessive force or otherwise criminally?  Is that the sort of thing you ‑ ‑ ‑

MS WASS:   That might be one.  I will get the reference for your Honour in a moment.  There are certainly cases of that kind.

NETTLE J:   Yes.  That is what you attribute to the judge.

MS WASS:   That is why we say one cannot simply pull out a state of mind and then assume everything else is equal when one is dealing with a hypothetical.

NETTLE J:   That is why you eschew the idea that it is an irrational comparator.  You say it is a possibility, logically conceivable, that someone facing the police officer, knowing it to be so, would nonetheless honestly fear for their safety.

MS WASS:   Yes.  The case I had in mind was Barbieri [2014] NSWSC 1808.  I do not imagine there are many, but I imagine there are others, but that is certainly one.

NETTLE J:   Thank you.

BELL J:   It seems to me that her Honour may have been postulating there manslaughter on the basis of discharging a firearm at a person, but in circumstances where the intent to make that act murder was not present, but it was undoubtedly an unlawful and dangerous act.  In such a circumstance, it would be the worst in terms of culpability if the person knew the other were a police officer.  It is a rather difficult circumstance to imagine, if one discharges a firearm at another, that there would not be the requisite intent.

MS WASS:   No, that is right, because of the nature of shooting at a person.  But one could also perhaps readily imagine the situation where, even in this circumstance – that is, in the close confines of a car park – one is recklessly shooting in all sorts of places, knowing that they were police officers and still not rendering them guilty to an offence of murder.  In our submission, her Honour, by setting out the killing by unlawful and dangerous act in shooting him, was making it clear that her Honour understood that she was not comparing it to a case of murder.

	I think I had got to those three matters – that is, if I can put it, the reverse De Simoni point, in our submission, is simply not open because it is not underpinned by any fundamental thing and it is contrary to authority requiring flexibility.  Secondly, the mathematical approach of referring to the state of mind as being the absence of a factor; in our submission, the court fell into error.  Thirdly, the matter of the hypothetical comparatives, in our submission, being entirely open without error; it matters not that they are not the best examples of comparative hypothesis.  They were open, and the only thing that matters, in our submission, is whether or not her Honour was clearly not comparing it to a much more serious offence.

BELL J:   Can I just take you on your outline to paragraph 13.  You assert that the error did not affect the determination of the fourth ground, which was the ground of manifest inadequacy.  The respondent notes that you do not challenge the conclusion of manifest inadequacy.  At paragraph 91, the court dealing with that ground, says that the express errors have been identified and they:

may be called in aid by the Crown to support and explain how sentences were imposed which are said to be manifestly inadequate.

But their Honours go on to make the conclusion that these sentences for these offences were manifestly inadequate.  I am just not sure.

MS WASS:   The difficulty, in our submission, with the proposition put by the CCA – firstly, can I just refer your Honours to our grounds of appeal in ground 1.  Your Honours will see that at point d, in our submission, what became removed from the process was the appellant’s state of mind at all.  So, in our submission, that error has infected the conclusion in respect of manifest inadequacy.

BELL J:   And we are to see that in paragraph 95, are we, in appeal book 113?

MS WASS:   Precisely.

NETTLE J:   So you do contend that these sentences were not manifestly inadequate?

MS WASS:   We contend that that finding by the CCA was infected with the error that we have identified.

NETTLE J:   Assume so much to be so, do you still contend that the sentences were not manifestly inadequate?

MS WASS:   I am sorry, I just lost your Honour on the double negative.

NETTLE J:   Allowing that their process of reasoning might have been affected or tinged somewhat by some irrelevant consideration, do you contend that these sentences for these offences were not manifestly inadequate?

MS WASS:   Yes, we do.  And it became part of the reasoning as to why it was in the worst‑case scenario as to the state of mind and, once that conclusion is infected with error, one has to reconsider completely whether or not it is in the worst case, taking into account that he did not know that they were police officers, that he was acting in genuine fear for his safety and with the other aggravating features that were found that are not the subject of question and that is the use of the firearm in the enclosed space.

BELL J:   Ms Wass, the criminal law does take into account consequences in sentencing.  This was a manslaughter in which a person was armed and engaged in a firefight, albeit with persons whom he thought were coming to rob him, in a confined space resulting in the death of a police officer.  The offence for which he bore culpability, the manslaughter offence, had a maximum sentence of 25 years and the sentencing judge imposed for that offence a sentence of nine and a half years.  Now, accepting it may not have fallen into the worst category, it must have been high up on the scale of objective seriousness, surely.

MS WASS:   We accept that it is objectively serious.  There is no doubt that it is a significant aggravating feature that a police officer killed in the execution of his duty is one that renders it so.  In the myriad of potential manslaughter cases, in our submission, one where a person genuinely fears, albeit acts unreasonably – and there is no doubt that that was so – does not necessarily render it in a most serious category.  What we say about that is one has to ‑ ‑ ‑

BELL J:   Engaging in a firefight in these circumstances, albeit you think that there are some thugs coming to rob you having regard to your activities, it is very different to a person who behaves in excessive self‑defence in another context altogether.  Surely one takes that into account.

MS WASS:   Yes, we accept that, but there is a submission I make in addition to that.  It was not just that he feared they were coming to rob him, that he genuinely as a result of that feared for his safety, and that is the important thing because the criminal law recognises that people in those circumstances will act – the fight or flight mechanism in human beings is well known and the criminal law in this case of manslaughter recognises that.  That something that one does in the heat of the moment and genuinely fearing for their safety, which is what section 421 requires, does not necessarily put it in the most serious category, albeit it resulted in the death of a police officer.

KEANE J:   But this man is armed, so that no doubt he can do, in the circumstances that arose on his understanding, what he did.  I do not understand how you can say this is a heat of the moment thing.  This is someone who, by virtue of the choice he has made when he can make that choice without any pressure at all, has chosen to be armed so as to engage in the sort of activity that was pretty horrible when it happened on the streets of Chicago in the 1930s, and here it is happening in the suburbs in what is otherwise a peaceful, civilised community.  Why is not that sort of activity, on your client’s own view of things, this sort of gangland activity, why is not that very close to the worst sort of offence?

MS WASS:   It is a factor that would make it aggravated, there is no doubt, and one needs to weigh up all of those factors.  I draw your Honours’ attention to page 51 of the appeal book at paragraph 30, which will give a clear indicator of the basis as to why the offender armed himself.  That is not to say one does not take into account his decision to do so and that aggravates, no doubt, and her Honour took that into account.  That is certainly a matter to be weighed up in determining overall the appropriate sentence.

BELL J:   And the possession of the firearm was taken into account on the form 1 for the manslaughter?

MS WASS:   Yes, and as an aggravating factor in the manslaughter.

BELL J:   Yes.

MS WASS:   I was trying to resist being mathematical about it but, in that sense, taken into account twice.  There is no doubt that there – and there was clear evidence that his decision to arm himself was in light of the two masked men who had earlier appeared, and I know I have said it already and I do not want to repeat it over and over, but there was absolutely no doubt about the genuineness of his belief, not only that they were there to rob him but that as a result of them being there he had a genuine fear for his safety.

	Now, his decision to arm himself earlier no doubt was a premeditated one.  His decision to fire the weapon, as we say, took place in circumstances where he held that genuine fear.  So, where it sits on the continuum is a matter for the sentencing judge to weigh up any number of matters and, as I say, it might be, for example, less serious than a negligent manslaughter of somebody who allows somebody to die over a prolonged period in agonising circumstances.  There is any number of comparisons one can make that are close to the facts or that are far from the facts that need to be considered in the general scheme of things with manslaughter.

	But the difficulty we say is that once the Court of Criminal Appeal removed his state of mind from the process, firstly that is, in our submission, wholly in error, but formed part of their conclusion as to why this was most serious, and that in turn formed part of their reasoning as to why it was manifestly inadequate.  Now, whether one might come to a different view when one is sentencing this man again, that he should have received a greater sentence than the learned sentencing judge, in our submission, with respect, is not the critical question.

	Could I deal then briefly with ground – and I think probably in response to questions I have dealt with most of the references that I was going to take your Honours to in our oral outline.  Could I just then, without going to them in detail, provide your Honours with just some further references?  At appeal book 16 one has ‑ ‑ ‑

GORDON J:   Sorry, Ms Wass, what do these go to?

MS WASS:   These go to – beg your pardon – they go to the state of mind and the belief.

GORDON J:   Thank you.

MS WASS:   At appeal book 16 he believed that his actions were necessary to defend himself.  At appeal book 19 he concluded that the men in the garage posed a risk to his safety.  At 20 he genuinely thought they were either “pretend” or “fake” police are the two terms that are used at appeal book 20.  Importantly, in our submission, and in support of the submission I have just put to your Honours, he felt threatened that he was going to be killed.  One sees at appeal book 33 a contention from the learned Crown Prosecutor when the first matter was first listed for sentence and that is why it is manslaughter.  

	That is why we say the only relevant state of mind posed by section 421 is that he believed that the conduct was necessary to defend himself and that belief was genuine.  In terms of what was put in respect to the worst‑case scenario, I put a submission to your Honours as to there being no hierarchy and that excessive self‑defence was not necessarily more serious than other kinds and I use the example of gross criminal negligence.  Your Honours will see a reference to that at appeal book 18.  

	At appeal book 21, the list of matters as put by the Crown to determine where the offending sits by reference to factors is at appeal book 21 and one has the death of a police officer which was undoubtedly accepted by everybody.  Armed with a firearm and prepared to use it, that too was taken into consideration, the fact that it took place in a public area.  And the fourth one put forward by the Crown which, perhaps, ironically, in light of the De Simoni point now put that he did so as part of an engagement with the drug trade.  Her Honour rejected that on two bases, one, that her Honour thought it would be a breach of the De Simoni principle but also and, perhaps more importantly, there was not sufficient evidence to support it.

NETTLE J:   It is hard to see why it would breach the De Simoni principle.  To carry a weapon for the purposes of facilitating drug trafficking and to take that into account as an aggravating circumstance is not to take into account an element which would render it a more serious offence.

MS WASS:   I think her Honour was mindful not to sentence him for his participation in the drug trade.  There was an offence in respect of drugs on a form 1 which also her Honour determined not to deal with, and again the evidence was insufficient in respect of that issue as well.

	I think that is all I wanted to say in‑chief in respect of ground 1.  In respect of ground 2, your Honours will see there are two places in which the matter occurred during the sentencing proceedings and firstly at ‑ your Honours do not necessarily need to go to it but the Crown moved from an initial position set out in its submissions at appeal book 18 and appeal book 23, that the sentences were appropriately wholly concurrent because the one criminal act was responsible for the two outcomes.

	At appeal book 32 and 33 and also at appeal book 39, the Crown’s changed position was that it would be wrong in law – I am sorry, perhaps I should slow down a little.  Your Honours see at appeal book 18 at line 31, the learned Crown Prosecutor referring to the same act with “two different consequences”, two different results and:

two offences are so closely linked in time that they should be dealt with concurrently.

BELL J:   Yes.

MS WASS:   Although we accept that when the matter was back in court a week later that position had changed to appeal book 32.  Your Honours see at line 22, the learned Crown Prosecutor:

my written submissions are different to the summary that I outlined last week.

The response from her Honour is articulated in this submission:

that there ought be some partial accumulation on the two offences.  They are not, even though they occurred in the one incident, they are quite discrete – 

then there is a submission, “Discrete offences and discrete consequences.”  At page 39 at line 35, your Honours will see that the solicitor then appearing for the appellant adopted the written submissions that had been earlier put, that is, that the sentences should be concurrent, and the submission there from the learned Crown Prosecutor that it would not be the law and that it was wrong in law to impose the concurrent sentences as the sentence has to acknowledge separate culpability.

	In our submission, her Honour’s finding in sentence at page 64, paragraph 69, was entirely open, was without error, and her Honour, taking into account that although the consequences were different, it was the same criminal conduct common to both offences with precisely the state of mind, and at almost – almost – the same time.  Clearly enough, on the very unusual facts of this case, her Honour was not persuaded that it was an error as put to her by the learned Crown Prosecutor to impose a wholly concurrent sentence.

BELL J:   Ms Wass, let it be assumed that you are right in saying it was within the discretion of the sentencing judge to determine that the sentences would be wholly concurrent, returning to ground 4, if it was open to the Court of Criminal Appeal to conclude that the Director’s challenge that these sentences were manifestly inadequate was correct, and if that conclusion is not tainted in the way you contend, then do you accept equally that it was open to the Court of Criminal Appeal in the exercise of its independent discretion to do as their Honours said they were doing at appeal book 117, paragraph 125, namely, to take a different view and to conclude that a modest degree of accumulation was appropriate?  In other words, one faces this difficulty, and I think it is the point that is taken against you by the respondent.

	At the end of the day, the Court of Criminal Appeal concluded that for the total criminality involved in these two offences, the sentence imposed by her Honour, which happened to involve concurrency, was manifestly inadequate and in the exercise of its discretion the court then resentenced for each offence and concluded that a relatively modest degree of accumulation was appropriate to reflect the circumstances because, as I understand their Honours, the sentence for manslaughter did not wholly subsume the separate culpability for discharging a firearm intending to inflict grievous bodily harm, and thereby wounding.

MS WASS:   There is no doubt that a Court of Criminal Appeal that finds error – it is not incumbent upon them to then resentence, and to deal with matters of concurrency, accumulation and totality as they see fit.  The difficulty with this case, of course, is that it is not so much that it is – on any view, that view of the material, that is whether or not it ought be concurrent or not, is infected by the finding that they make about the lack of relevance of the state of mind.  So, in our submission, one needs to resentence without the infection of that error, and one does not know to what extent that error imposes itself upon to the second ground.

BELL J:   May I raise with you whether or not it is fair to say that everything stands or falls on your first ground and the allied contention that the Court of Criminal Appeal’s claimed error infected their conclusion of manifest inadequacy.  The fact that their Honours found that the primary judge erred by not accumulating the sentences is really another way of saying that their Honours were satisfied that the sentences and the way in which they were constructed were manifestly unjust or unreasonable, by reason that they were inadequate.

MS WASS:   I certainly think it was open to the Court of Criminal Appeal to not deal with the totality ground.  Having found error in respect of the other matter, it was then open to resentence.

BELL J:   But the conclusion that it was an error not to provide for some degree of accumulation – it is hard to see how that infects a discrete conclusion of manifest inadequacy.  The one feeds into the other, does it not?  The court concludes – and it is a conclusion – that these sentences do not reflect the criminality involved in the two offences, such that it is an unreasonable or manifestly unjust result.

MS WASS:   As I say, there is no doubt that, even absent any error being alleged in respect of the totality, the court, if there is no difficulty with the first ground – it was incumbent upon them to resentence, or to send it back to be resentenced.  But that is not how the court dealt with it.  They dealt with it as a separate ground, and that it was separately an error.  

	Then, when those two errors are considered, the court then moves to resentence, and as we say, we do not know to what extent they were moved by the concept that it was important to take into account the different consequences.  That is a matter that they simply do not deal with, so one does not know to what extent the error in respect of ground 2 has an impact in any event, because that is not the way that the Court of Criminal Appeal dealt with it.  I am not sure that I have answered your Honour’s question, but ‑ ‑ ‑

BELL J:   I think you understand the issue that I raise with you.

MS WASS:   Yes, I do.

GAGELER J:   In practical terms, you have got to get up on both of your grounds of appeal.

MS WASS:   I do not believe we do, for the reasons that I have put.  That is to say once – it is difficult to know because one has to consider totality as an overall concept and I do not know whether or not one can say that ground 2 is utterly uninfected by the error that is in ground 1 and vice versa.

NETTLE J:   The position is that this Court of Criminal Appeal found in response to ground 4 before them that these sentences are manifestly inadequate.  Put aside other supposed errors, they are just too small by a long way.  Now, unless you beat that, unless you persuade that they are not manifestly inadequate, it falls to be resentenced and then comes the question of why was it wrong for the Court of Criminal Appeal to cumulate modestly the sentence for wounding on the sentence for manslaughter?

MS WASS:   Yes.  My learned junior rightly points out I think that the situation then may be that there would be some impact on whether or not they had decided to exercise their discretion under 5D, at least, depending on what view they came to.  In our submission, we do not have to succeed on both grounds.  If we succeeded on ground 1 and not ground 2, there would necessarily need to be a resentencing exercise.

BELL J:   You have to, in order to succeed ‑ ‑ ‑

MS WASS:   I am sorry.

BELL J:   I am sorry, but in order to succeed, surely, your point must be made good that the Court of Criminal Appeal’s conclusion on ground 4 was tainted by their approach to the error that you say is identified in ground 1?

MS WASS:   Yes.

BELL J:   If that did not in fact taint the resolution of ground 4, then it is difficult to see how you can succeed.

MS WASS:   And that is what we put in our notice of appeal and, in our submission, it must have and one does not precisely know how.  But to remove the state of mind ‑ ‑ ‑

BELL J:   When you say “remove the state of mind,” are you saying that we should approach it on an understanding that the Court of Criminal Appeal did not take into account that this was a manslaughter involving the discharge of a weapon with intent to cause grievous bodily harm to the deceased that causally was sufficiently significant as an act to attract liability for the bullet that did cause death and that at the point of the discharge he did so genuinely believing it was necessary, albeit that belief was an unreasonable one?  That was the whole basis and I think their Honours had earlier set out those factual findings.

MS WASS:   The Court no doubt has my friends written submissions about whether or not what the Court of Criminal Appeal said was a slip or whether or not the Court of Criminal Appeal was deliberate in saying it is 
an irrelevant factor.  In our submission, we took that as meaning it is irrelevant because it has already taken into account for in the manslaughter itself and the maximum penalty itself which, in our submission, we say is in error.

GORDON J:   So is your complaint about 52?  Is that the sort of high point of it, where it is talking about extraneous factors?

BELL J:   Is your point paragraph 95 at appeal book 113?

MS WASS:   Yes, it is.  Your Honours will see in my friend’s submissions – sorry, I have just lost the reference for a moment.  Yes, in my friend’s oral outline what is referred to as the “inadvertent slip” which your Honours will find in 95 – it is difficult to know clearly what the Court of Criminal Appeal meant, however ‑ ‑ ‑

GAGELER J:   You would link it back to 52 would you not?

MS WASS:   I am sorry, your Honour?

GAGELER J:   You would link it to paragraph 52 and say paragraph 95 is just the outflowing of paragraph 52?

MS WASS:   Yes.

GORDON J:   So the high point has to be 52, is that right?  The two of them go together.

BELL J:   Yes.

MS WASS:   Yes.  One of the difficulties in trying to separate out the two grounds is that the basis upon which manifest inadequacy was arrived at was in part, at least, due to the conclusion about it being in the worst case and that itself links back to what one makes of the state of mind and it is either (a) utterly unclear, (b) it is a finding that says state of mind is irrelevant which, we would say, is itself in error, or it is an acceptance that it is relevant but does not do justice to that finding.  Unless there is anything further, those are our submissions.

BELL J:   Thank you.  Yes, Mr Pickering.

MR PICKERING:   I will give you a chance to look at our outline of oral ‑ ‑ ‑

BELL J:   Thank you.  Yes, Mr Pickering.

MR PICKERING:   Thank you.  Can I take your Honours back to appeal book page 60 and paragraph 57 of her Honour Justice Fullerton’s judgment?

BELL J:   Yes.

MR PICKERING:   I just wanted to tease out why we say that if her Honour is doing this hypothetical aspect of what the appellant claims – and I will deal with whether it was actually a hypothetical aspect or whether she was actually looking at this case – of why it was distracting, it was irrelevant and it created problems.

	It seems now uncontroversial in the way the appellant has said in relation to the facts of this case that if he had known they were police he is unlikely to have shot, and they say it is irrelevant to consider that because he may have done a different action, really what they are saying by that is that quite obviously he would not have needed to defend himself if he knew that they were police.

	The whole background of this was the unique factual situation that three weeks earlier he had had this actual robbery which formed this belief that he could be robbed effectively by fake police.  He had not had experiences with legitimate police, for example, where they had committed unlawful violence on him where he may have felt some need to protect himself from unlawful violence by a police officer.  So it was unique and that is why it led to this particular plea.

	Once you accept that that was an impossibility in this case, that if you knew they were police that it could amount to manslaughter, it would have had to be murder, then you focus on the objective seriousness of the manslaughter before you, and that is where her Honour moved this crucial paragraph in 57, which was always going to be an important and crucial finding of objective seriousness.  The objective seriousness she needed to figure out was looking at a matter where someone was acting in excessive self‑defence possessing an unlawful firearm, prepared to use it, and did use it on men who, at that stage, were not presenting any weapons and saying that they were police officers, and that he fired with the requisite intent to murder – that is, with intent to cause grievous bodily harm.

	Then, knowing that that is what you are assessing, how does it possibly assist you if you consider that what she is actually looking at is the state of awareness for manslaughter by unlawful and dangerous act which must be a firing of a firearm not with the requisite intent to cause grievous bodily harm?  How does that possibly assist you in the task that you are doing?  You are looking at ‑ ‑ ‑

BELL J:   Because, Mr Pickering, what her Honour was dealing with was a submission from the prosecution that this was the worst case of manslaughter.  That is why, in the very concluding portion, when she turns to manslaughter – having firstly made the point it is not the worst case of discharging a weapon with intent to do grievous bodily harm, thereby wounding, because a worse case would be if you committed that offence knowing the person you were firing at and intending to wound was a policeman.

	Then she turns to a consideration of manslaughter of a different kind to the manslaughter with which she was dealing in order to deal with the submission “this is for manslaughter, the worst case” and she says “let us look at a manslaughter by unlawful and dangerous act involving firing a weapon at someone.  It would be worse in that circumstance if the person was known to be a police officer”.  Now, whatever one makes of that, that, as I understand it, is the process of reasoning, and it is perhaps not insignificant to understand paragraph 57 as a response to a “worst case” submission.

MR PICKERING:   The problem, of course, also built in to paragraph 57 is her Honour is talking about this particular case when her Honour uses the language “were the offender to have shot at Constable Crews” in this one – I appreciate that that might be a matter of semantics about whether she is using hypothetical language, or using the particular case – but in this case, it was something that her Honour had to be very careful about, because it was a crucial determination in the matter being reduced from murder to manslaughter on this knowledge aspect of police.

	To them, when you are now considering what is one of the most crucial aspects on sentence of the objective seriousness of the offence, to be postulating about whether he knew it was a police officer is creating either the danger that you are actually taking into account what we say her Honour was doing – that is, facts that would amount to a murder – or even in the alternative argument, she is looking at this hypothetical unlawful and dangerous act, that you are then underplaying the seriousness of the offence before you by focusing on this scenario.

	I appreciate, for the worst‑case scenario, what your Honour Justice Bell says, that you can consider other matters, although usually the determination of worst‑case scenario is not to simply think of one scenario that would be worse than the current matter before you.  It is a bandwidth of what would amount to worst‑case scenario so there is a danger of just focusing on one example.  But here, if this is the hypothetical scenario she is doing, she is both looking at a different intent and, in this case, a really fundamental important difference in relation to the knowledge of whether it is a police officer.

	Actually, the second half of paragraph 52 of the Court of Criminal Appeal judgment in looking at the House v King error is really the high point of our argument in many ways on this particular ground of appeal in that we say that it was an irrelevant consideration.  We still say that it is analogous to a De Simoni error.  We provide the Court with the authority of Elias where the Court, sort of, in looking at the Liang principle drew some analogy of how that is with the De Simoni principle.

BELL J:   But that was to knock on the head the proposition.  It hardly seems – I just wonder, Mr Pickering, about the utility of introducing a reverse De Simoni into the sentencing process.

MR PICKERING:   Really, focusing on House v King was suffice for our purposes and we have obviously in our written submissions really tried to focus on the House v King irrelevant considerations rather than focusing on the De Simoni principle to it.  

GORDON J:   Your fundamental proposition was an irrational, irrelevant consideration?

MR PICKERING:   Yes, but then subsequently also did affect the manner in which her Honour then classed the serious of the “objective seriousness” of the offence.

BELL J:   I was just going to ask whether you need to go that far.

MR PICKERING:   We do not.

BELL J:   Is not the point that you make that ground 4 stands on its own and if there is not an error of the kind that Ms Wass contends tainting that conclusion, one is not concerned with by what process of reasoning the primary judge reached a conclusion that is manifestly unreasonable or unjust, one simply finds that is the conclusion.

MR PICKERING:   As your Honour Justice Bell read from that part of the judgment, the Court of Criminal Appeal says that the Crown can call in aid the other grounds of appeal to assist it on manifest inadequacy but, of course, it must establish manifest inadequacy within ground 4 or the various basis that it has outlined.  Really, the appellant just says, if you take their case at their highest looking at paragraph 95 that one of the mechanics of how the Court of Criminal Appeal reached manifest inadequacy, that being this error in ground 1, that that may have impacted on the finding of manifest inadequacy but, of course, though the Court of Criminal Appeal acknowledged that they were considering aspects of ground 1 within ground 4, there is so much more to their judgment in ground 4 about bringing it back to the facts of this particular matter and why it was such a serious case of manslaughter.  

	Some of the points raised by his Honour Justice Keane is exactly what the Court of Criminal Appeal was doing in ground 4.  They were bringing it back to the facts of the matter forgetting about the knowledge of whether he knew or whether he did not know that they were police, or whether he believed that they were fake police, looking at the facts of the matter of someone who is possessing a firearm, firing at people, not presenting weapons, saying that they are police and doing it as part of the activity that he was involved in.  That was the focus of the Court of Criminal Appeal’s manifest inadequacy finding and a finding that this was much more objectively serious than what the original sentencing judge had found.
  
	We have obviously, in our written submission dealing with paragraph 95 of the Court of Criminal Appeal judgment at appeal book 113, outlined our submissions in relation to the use of double negatives there, but we have more importantly outlined that you really have to look at the whole judgment in context.  The Court of Criminal Appeal clearly was well aware that the state of mind was the state of mind for 421 of the Crimes Act.

	That was the far more important mind than the important mind of “fake police”.  The state of mind is the lawful state of mind pursuant to section 421, and there can be no doubt when you look at the Court of Criminal Appeal which even has, if you go back to appeal book 101, just above paragraph 15, the boldest of types, the basis of the respondent’s plea of guilty to manslaughter which they then fully outline their full understanding of it.

	Then when you go back to the surrounding paragraphs of paragraph 95, you can see that the Court of Criminal Appeal is looking at the aspect of the self‑defence and why you have to look at the seriousness of the conduct of the appellant in this particular matter going through the facts that I have outlined about the circumstances of these people coming into the car park, announcing that they were police, one of them was carrying a clipboard – obviously the deceased, ultimately – and that that is what you should have been focusing on in the assessment of objective seriousness.

	Of course, even in paragraph 95 itself, they do relate it back to the first ground of appeal and really what they are saying there, albeit that we say there is a slip is, when you are assessing the objective seriousness of this offence, you should not be thinking about whether he knew that they were police or not.  That was not the important factor and in fact that had the ability to underplay the seriousness of the offence because either you are 
thinking about something amounted to a murder, which we say her Honour was doing, or even if you take the lesser scenario that she is thinking of a different kind of more serious manslaughter that had the ability to distract. 

	That is why we argue, but as your Honour Justice Bell correctly says, we do not actually have to prove the impact of ground 1 on ground 4 but I have to accept that even the Court of Criminal Appeal said that it did play some role in the assistance of that determination obviously of manifest inadequacy.

	I just want to say one aspect about totality.  In so many ways totality not just factors into the re‑sentence, but you cannot really divorce the totality from the manifest inadequacy because of course in saying that totality is discretionary, the sentences are discretionary too.  The sentence for the wounding offence was discretionary in a sense that the manslaughter was discretionary.  So, once the Court of Criminal Appeal decides that both aspects of that discretion failed, that both sentences were manifestly inadequate, it is very hard to see how that you do not also make some determination that totality potentially also needs to be re‑considered because the individual sentences were determined to be manifestly inadequate.  

	I appreciate that both are slightly arguments to when you move to re‑sentence where you have to then obviously use the court’s independent discretion.  But you cannot look at totality and ignore the fact that the individual sentence themselves were found by the court to be manifestly inadequate.  Your Honours, unless there is anything further, that is what I intend to say about our grounds.

BELL J:   Thank you, Mr Pickering.  Ms Wass.

MS WASS:   Very briefly, your Honours.   My friend drew attention to Elias as being some analogy.  Elias was a case where exactly the same set of facts rendered an offender liable to, on the one hand, a state offence and, on the other hand, a Commonwealth offence.  It will not assist your Honours, with respect, to have regard to Elias.

	The state of mind and the genuineness of it was a significant mitigating factor, even on the manslaughter.  And when one is called to consider where the offending sits in the very broad spectrum of manslaughter, the genuineness of the state of mind and the genuineness of the fear is always relevant.  I understand that in the submissions my friend now accepts that it is a relevant consideration.  Paragraph 95 makes it abundantly clear that the manifest inadequacy was pinned – and one has for the reasons explained in the context of the first ground of appeal – and the finding that it is not relevant in the assessment of the gravity of the 
manslaughter offence is inextricably pinned to the finding that it was manifestly inadequate.

BELL J:   Is your complaint, if one moves away from an attempt to construct paragraph 95, that you do not find a discussion in the consideration of ground 4 of the circumstance that the discharge occurred in circumstances in which he had a genuine but unreasonable belief that what he was doing was necessary?  That is your complaint?

MS WASS:   Absolutely.  My next submission was going to be, in dealing with the manifestly inadequate ground, the court gave absolutely no regard to the state of mind, consistent with finding that it was irrelevant.  In our submission, that has got to be an error infecting that ground – sorry, that ground would necessarily infect the finding that it was manifestly inadequate.  If your Honours please.

BELL J:   Yes, thank you.  The Court will reserve its decision in this matter.  Would you adjourn the Court to 9.30 in Sydney and 9.30 in Brisbane on Friday, 11 March.

AT 11.14 AM THE MATTER WAS ADJOURNED