Mendieta-Blanco v The Queen [2021] HCATrans 76 (16 April 2021)

Last Updated: 19 April 2021

[2021] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M116 of 2020

B e t w e e n -

ALEJANDRO MENDIETA-BLANCO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 12.15 PM

Copyright in the High Court of Australia
MS R.B. SHANN: If it please the Court, I appear for the applicant, with MR P.D. COLERIDGE. (instructed by Furstenberg Law).

MR J.C.J. McWILLIAMS: If the Court pleases, I appear for the respondent. (instructed by Office of Public Prosecutions (Vic)).

GAGELER J: Yes, Ms Shann.

MS SHANN: Your Honours, this application concerns the content of the fundamental principle of fairness set out in De Simoni, that no one should be punished for an offence of which he or she has not been convicted. The special leave question arises in this case as the result of four relatively, or, we say, uncontroversial matters.

First, there was conduct alleged to constitute conspiracy, which had originally been charged but became uncharged when this matter resolved. The evidence of that conduct was contained in surveillance device recordings. Thirdly, the recordings were part of what the sentencing judge used to determine the objective gravity and moral culpability of the applicant; and, fourth, though the sentencing judge said he was not sentencing the applicant for his uncharged acts, they were used at least in part in a positive way to increase the effective seriousness of the charge offending and his moral culpability for it.

GAGELER J: So, what were the uncharged acts that were taken into account impermissibly?

MS SHANN: The uncharged acts were contained – well, summarised perhaps most succinctly in the Court of Appeal’s judgment at paragraphs 9 and 10, which is application book 32. In particular, most clearly, the last sentence on that page that the applicant:

advised CT that he should teach the employees how properly to conduct unlawful transactions and ‘then, we should give them a cut.’

So that these recordings evidence unlawful encouragement – incitement – or, as was originally charged, conspiracy to obtain financial advantage by deception. Alternatively, the third conspiracy charge that was originally there, as supported by the matters summarised in paragraph 9 of the Court of Appeal judgment, was conspiracy to handle stolen goods.

Those were matters which were then expressly - at paragraph 11 of the primary sentencing judge’s reasons, application book 10, where the recorded conversation which his Honour had regard to in order to determine the sentence. Importantly, in doing so, that way of using those recorded conversations was not simply to refute any attempt to obtain a mitigating circumstance – there was no such submission made – but his Honour went on to positively use that conduct in taking those recordings which evidenced uncharged conduct to be the context which increased the objective seriousness and moral culpability of the applicant.

GAGELER J: What is wrong with that? Consistently with De Simoni, what is wrong with that?

MS SHANN: De Simoni, we say, does not stand for that proposition. De Simoni, at 389, specifically speaks of a fundamental principle of fairness that no one should be punished for an offence of which he has not been convicted. The content of that, we say, as is accepted and applied in by at least two bodies of authority in Australia, is that using uncharged conduct to inform and increase the objective seriousness of the charged conduct in fact apportions a degree of punishment for the uncharged conduct, so that it is not simply the case as the majority in LN held, interpreting De Simoni - is not simply the case that De Simoni prohibits sentencing for uncharged conduct. That, we say, is semantics.

If you are using the uncharged conduct to influence and increase objective seriousness, you are allocating a degree of punishment for that uncharged conduct which is unfair for procedural reasons to any person before the Court. So, those two bodies of authority lend support and they are outlined in our submissions as.....albeit there are some variances or decisions which do not fit easily within that type of reductive categorisation.

But it is, we say, quite wrong and quite unfair to subject an accused to an increase in penalty for charged offences in circumstances where the Executive has determined in the exercise of its discretion not to charge for those. If there was a need – if there was a decision that there needed to be some additional content from those uncharged offences to inform and increase the charged offence, there are mechanisms which can be utilised.

Firstly, the prosecution can charge. Alternatively, there can be an agreement that the charged offence is to be taken as a representative charge. There are safeguards and procedures around that process which provide transparency and clarity as to what exactly is being consented to by an accused. Thirdly, there is a process which is set out in the Sentencing Act (Vic) at section 100, but there are equivalent sections in other jurisdictions which allow the identification of other conduct which could have been charged to be taken into account by a sentencing judge in imposing the sentence for the charged conduct.

There is a reference in cases such as Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 621. It is not a case that is put in the list of authorities but
is referred to in our submissions at paragraph 24, that Di Simoni would require the accused to be sentenced only for the offence or offences charged excluding any consideration of any part of the accused’s conduct that could have been charged separately.

There is a specialness about firstly imposing punishment for something which has not been charged and, secondly, for the fact that it could have been charged but was not. That unfairness is amplified in this case, where that uncharged conduct was actually evidence that was there as part of the definitional material in support of broader charges of conspiracy which were dropped, withdrawn, as a result of a plea agreement and, indeed, where that plea agreement arose in the context of a challenge to the admissibility of those recordings.

There was a voir dire on foot challenging the warrant which was used to obtain those surveillance device recordings at the time that the Crown proposed a resolution for the confined, rolled‑up, single charge which the applicant then fell to be sentenced. In those circumstances, it is quite unfair for a positive use to be taken for objective seriousness and punishment to flow from reference to the uncharged acts.

This application does not simply give rise to the special leave question as articulated, but that is a question of principle which, as set out in our submissions, would resolve – grapple with and resolve irreconcilable differences which exist between courts in this country. There is no uniformity of approach to what De Simoni does and does not stand for, and what the content of that underlying principle of fairness is.

This matter would require this Court to resolve those differences, and we say for those reasons, is a matter of significant public importance of general application which would clarify those sentencing principles which are, of their very nature, of fundamental public importance. In particular, there is an aspect of resolutions to pleas which gives rise to real importance in a system where pleas of guilty are so valued.

There needs to be, we say, clear guidance from this Court as to what use can be made of conduct that could have been charged but was not, in the sentencing for charged conduct. Where uncertainty exists, that is a disincentive for persons to resolve matters in circumstances where, as here, that clearly provided an advantage to the criminal justice system, removing what was to be a trial of many months from the court list, due to an agreement reached at court during cross‑examination of the police who had taken out the warrant. Those, your Honours, are the submissions that we wish to make.

GAGELER J: Thank you very much. Mr McWilliams, we do not need to hear from you.

We are not persuaded that there was an arguable misapplication of the De Simoni principle by the sentencing judge or in the Court of Appeal. The application is dismissed.

MR McWILLIAMS: As the Court pleases.

GAGELER J: The Court will now adjourn.

AT 12:30 PM THE MATTER WAS CONCLUDED