Everett v R [1994] HCA 49; (1994) 181 CLR 295; (1994) 124 ALR 529; (1994) 74 A Crim R 241 (26 October 1994)

CATCHWORDS

HEARING

ORDER

Set aside the orders of the Court of Criminal Appeal of Tasmania and in lieu thereof order that the applications by the Attorney-General of Tasmania for leave to appeal to the Court of Criminal Appeal be dismissed.

Date of Order: 3 June 1994

"Phillips") each pleaded guilty in the Supreme Court of Tasmania at

Burnie to the crime of aggravated armed robbery. On 4 October 1993,

they came before Slicer J for sentencing. The sentencing proceedings

were adjourned for pre-sentence reports and resumed on 21 October.

His Honour heard submissions from counsel and on 22 October ordered

that each of the appellants be imprisoned for a term of twelve months

to commence from the time when he was taken into custody, namely,

28 July 1993 in the case of Everett and 4 October 1993 in the case

of Phillips. His Honour ordered the operation of the whole of the

unexpired part of the sentence of each appellant be suspended on the

conditions that "he commit no crime or offence involving dishonesty or

violence to the person for a period of two years" and that "he enter

into a bond to be of good behaviour for a period of two years, such to

be under the supervision of a Probation Officer". Under the current

law of Tasmania, the condition relating to entry of a bond was

inappropriate. It is, however, common ground that nothing turns upon

that for present purposes. In pursuance of the suspension of the

unexpired part of the sentence of imprisonment, each of the appellants

was immediately released from custody.

2. On 4 November 1993, the Attorney-General for Tasmania lodged

applications for leave to appeal against the sentences to the

Tasmanian Court of Criminal Appeal. The applications for leave

to appeal incorporated, apparently in accordance with established

practice, a notice of appeal. On 13 April 1994, the Tasmanian Court

of Criminal Appeal, by majority (Cox and Crawford JJ; Zeeman J

dissenting), granted leave to appeal, upheld the appeal and

substituted new sentences. Everett was sentenced to imprisonment for

one year and six months from 13 April 1994 with the last twelve months

of the term suspended upon conditions that "he commit no crime or

offence involving dishonesty or violence to the person for a period of

two years following his release from prison" and that "for a period

of one year following his release from prison he submit to the

supervision of a Probation Officer and comply with his or her

reasonable directions". Phillips was sentenced to imprisonment for

the period of one year and nine months as from 13 April 1994 with

the last twelve months of the term suspended upon corresponding

conditions. For practical purposes, the most significant difference

between the sentences imposed by the sentencing judge and those

imposed by the Court of Criminal Appeal was that, under the Court of

Criminal Appeal's sentences, each of the appellants was required to

serve a term of imprisonment. Consequently, the appellants were taken

back into custody to commence service of their respective terms.

3. The appellants applied for special leave to appeal to this Court

from the decision of the Court of Criminal Appeal granting leave to

the Attorney-General to appeal to that court. The applications came

on for hearing on 3 June 1994 when full argument was presented both

on the applications for leave and on the substantive questions which

would be involved in the appeals if leave were granted. At the

conclusion of the argument, the Court granted leave to appeal in each

case. The Court went on to order that, in each case, the orders of

the Tasmanian Court of Criminal Appeal be set aside and that, in

lieu thereof, an order be made dismissing the application by the

Attorney-General for leave to appeal to the Court of Criminal Appeal.

The Court stated that it would publish the reasons for those orders in due course.

4. All members of the Court of Criminal Appeal considered that the

overall sentences imposed by the learned sentencing judge were so

unduly lenient that they did not fall within the limits of a proper

exercise of sentencing discretion. The division of opinion between

them was in relation to the question whether the circumstances were

such as to justify a grant to the Crown of leave to appeal against

sentence. In this Court, counsel for the appellants suggested that

the differences between the sentences imposed at first instance and

those substituted by the Court of Criminal Appeal did not indicate the

type of manifest inadequacy which is ordinarily necessary to justify

the intervention of an appellate court. The attack upon the judgment

of the Court of Criminal Appeal was, however, confined to the decision

of the majority granting leave to appeal.

5. The crime of which each of the appellants was convicted was a

serious one. It involved the use of an unloaded shotgun to intimidate

a middle-aged female assistant who was working alone at night in a

Burnie milk bar and the stealing of approximately $950 in cash and

two packets of cigarettes. On the other hand, there were mitigating

factors to be taken into account in the sentencing process. The

learned sentencing judge found that two other men, who were also

implicated in other robberies in the Burnie area about the time, had

involved Phillips in the commission of the crime and that he, in turn,

had involved Everett who continued with the involvement through

friendship with and loyalty to Phillips. The Crown effectively

conceded that the role played by those other persons was more culpable

than that of the appellants. At the time of the offences, Everett was

eighteen years old and Phillips was nineteen. Everett had never been

in trouble with the law before. Phillips' only relevant previous

conviction was for a minor assault under the Tasmanian Police Offences

Act. Both appellants were supported by character evidence which, at

least in Everett's case, was particularly strong. Both received

encouraging pre-sentence reports. Both pleaded guilty and displayed

genuine remorse. The learned sentencing judge plainly considered

that, in each case, the offence was completely out of character and

that, if the balance of any custodial sentence was suspended, neither

would re-offend. As regards Everett, he said:

"there is a significant basis for concluding that Mr Everett

will not reoffend. Further time spent in prison will be

likely to impede the process of rehabilitation. It is in

the public interest that an 18 year old be afforded the

opportunity of rehabilitation. The suspension of a sentence

should operate as a form of future deterrence."

6. Section 401(2)(c) of the Tasmanian Criminal Code confers upon

the Court of Criminal Appeal jurisdiction to grant leave to the

Attorney-General to appeal against sentence. Such a jurisdiction has

become commonplace throughout this country and the common law world.

Nonetheless, in its exercise, a court of criminal appeal must, in the

absence of clear statutory direction to the contrary, recognize that

there are strong reasons why the jurisdiction to grant leave to the

Attorney-General to appeal against sentence should be exercised only

in the rare and exceptional case. An appeal by the Crown against

sentence has long been accepted in this country as cutting across

the time-honoured concepts of criminal administration by putting

in jeopardy for the second time the freedom beyond the sentence

imposed ((1) See, e.g., Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230 at

248; Reg. v. Tait (1979) 24 ALR 473 at 476-477; Reg. v. Wilton

(1981) 28 SASR 362 at 367-368; Reg. v. Holder (1983) 3 NSWLR 245 at

255-256; Reg. v. Peterson (1984) WAR 329 at 330-331; Reg. v.

Stach [1985] FCA 55; (1985) 66 ALR 79 at 84; Cooke v. Purcell (1988) 14 NSWLR

51 at 57-58; Reg. v. Dowie [1989] TASSC 44; (1989) Tas R 167 at 177; Arnold

(1991) 56 A Crim R 63 at 64-65 (Sup. Ct. W.A.); Reg. v.

Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 565.). That being so, a "court

entrusted with the jurisdiction to grant or refuse such leave should

give careful and distinct consideration to the question whether the

Attorney-General has discharged the onus of persuading it that the

circumstances are such as to bring the particular case within the rare

category in which a grant of leave to the Attorney-General to appeal

against sentence is justified" ((2) Malvaso v. The Queen [1989] HCA 58; (1989) 168

CLR 227 at 234-235.). In determining whether that question should be

answered in the affirmative, a court of criminal appeal should be

guided by the following comment of Barwick CJ in Griffiths v. The

Queen ((3) [1977] HCA 44; (1977) 137 CLR 293 at 310. See, to the same effect, at

327 per Jacobs J, with whom Stephen J agreed, and 329-330 per Murphy

J):

"an appeal by the Attorney-General should be a rarity,

brought only to establish some matter of principle and to

afford an opportunity for the Court of Criminal Appeal to

perform its proper function in this respect, namely, to lay

down principles for the governance and guidance of courts

having the duty of sentencing convicted person".

7. In the present case, there was another more particular

consideration which strongly militated against a grant of leave to the

Attorney-General to appeal against the sentencing judge's order that

the unexpired part of the sentences of imprisonment which he imposed

should be suspended. It is that, in a context where the learned

sentencing judge had made it quite clear that he was contemplating

making orders that the unexpired portion of any sentences of

imprisonment be suspended, counsel who then appeared for the Crown

made no suggestion whatsoever that such an order would be beyond

the proper scope of his Honour's sentencing discretion in the

circumstances of the case. Indeed, at one stage of the proceedings,

his Honour, having expressed concern lest the complete suspension of

any terms of imprisonment which he imposed upon the appellants might

be seen by Everett as "unfair" by reason of the fact that Everett had

been detained in custody for eighty-five days prior to sentencing

whereas Phillips had been detained for but eighteen days, asked

counsel whether he had "the power in law to impose community service

orders in addition to gaol and if I was minded to suspend?" Counsel

who then appeared for the Crown and counsel for the appellants all

made submissions in relation to that question. Far from suggesting

that failure to impose a term of actual imprisonment was inconsistent

with a proper exercise of sentencing discretion, counsel for the Crown

responded as follows:

"COUNSEL: Your Honour, in my respectful submission the

position in 1993 in relation to community service orders

is that the sentencing tribunal does not have to make a

decision first that a term of imprisonment is appropriate.

HIS HONOUR: That's right.

COUNSEL: And then take the second step to ameliorate it.

HIS HONOUR: I agree with that.

COUNSEL: The sentencing tribunal can go straight to the

question of community service orders.

HIS HONOUR: Yes.

COUNSEL: I can't assist as to whether or not you can do

both."

8. It should be mentioned that Mr Bugg QC, who appeared for the

Crown, placed reliance upon the fact that, before the resumption of

the sentencing proceedings on 21 October 1993, the Crown had drawn the

attention of the sentencing judge to a case of Reg. v. Tol ((5)

Unreported, Supreme Court of Tasmania, 16 November 1992.) where a

sentence of two years imprisonment, with the last fifteen months

suspended, had been imposed by Crawford J for the crime of aggravated

armed robbery in circumstances which were, in important respects

including the age (19 years) and absence of prior convictions of the

accused, remarkably similar to those involved in the present case. In

that case, the sentence of imprisonment was ordered to commence as from

the date on which the accused had been taken into custody. If an

identical sentence had been imposed on Everett, he would have been

required actually to serve a term of imprisonment of approximately six

months from the date of sentence, that is to say, approximately the

period which he was required actually to serve under the sentence

imposed by the Court of Criminal Appeal. It was submitted that the

action of the Crown in referring Slicer J to the case of Tol

"obviously disclosed" what the "position of the Crown" was. There are,

however, two answers to that submission. The first is that there were

some significant differences between the personal circumstances of Tol

and those of the two appellants which favoured the appellants on the

question whether any sentences of imprisonment imposed upon the

appellants should be wholly suspended. Thus, Crawford J expressly

rejected at least part of the evidence Tol had given before him about

the circumstances of his crime. More important, in contrast with

Slicer J's conclusion that the appellants' offences had been

completely out of character and that they would not reoffend if a

suspended sentence were imposed, Crawford J expressed the view that,

in the context of "some bad aspects of (Tol's) life in recent years",

he would not achieve rehabilitation unless he changed. The second

answer is that, in all the circumstances, the Crown's action in drawing

the attention of Slicer J to Tol's Case simply cannot, in the context

of both what the Crown said and what it did not say during the

subsequent sentencing proceedings, realistically be seen as a

submission sub silentio to the effect that the suspension of the

unexpired term of any sentence of imprisonment would be even

inappropriate, let alone involve a miscarriage of the sentencing

discretion.

9. In these circumstances, the following comments of King CJ (with

whom Mitchell and Williams JJ agreed) in Reg. v. Wilton ((6) (1981)

28 SASR at 367-368.), which have been cited with approval in this and

other courts ((7) Malvaso v. The Queen (1989) 168 CLR at 240; Reg.

v. Aloia (1983) WAR 133 at 134; Reg. v. Molina [1984] FCA 248; (1984) 2 FCR 508 at

513. See also Reg. v. Tait (1979) 24 ALR at 477; Reg. v. Jermyn

(1985) 2 NSWLR 194 at 203-204; Casey (1986) 20 A Crim R 191 at

196; Economedes (1990) 58 A Crim R 466 at 469-471.), were

applicable to the application for, and weighed heavily against the

grant of, leave to appeal to the Crown in the present cases:

"It is necessary to consider whether the prosecution

should be allowed to raise on the appeal the contention that

the sentence ought not to have been suspended when that

contention was not put in the Court below. The consequences

of allowing the prosecution to do so are serious. The

respondent has faced the prospect of deprivation of his

liberty by way of imprisonment and has been spared, subject

to observance of the conditions of the bond. If the

prosecution is allowed to raise the contention he must again

face the prospect of imprisonment. This is what the Federal

Court meant in R. v. Tait and Bartley ((8) (1979) 24 ALR 473.)

by 'double jeopardy'. In my opinion, this Court should allow

the prosecution to put to it, on an appeal against sentence,

contentions which were not put to the sentencing Judge, only

in exceptional circumstances which appear to justify that

course. I endorse with respect what was said in Tait and

Bartley as to the duty of prosecuting counsel before the

sentencing judge. In particular where a submission is made

by counsel for a convicted person that a sentence should

be suspended or a possible suspension is mentioned by the

judge, and this course is regarded by the prosecution as

beyond the proper scope of the judge's discretion, a

submission to that effect should be made. Generally

speaking, if the submission is not made to the sentencing

judge the prosecution should not be able to advance

that contention successfully on an appeal by the

Attorney-General."

10. In the Court of Criminal Appeal in the present cases, Zeeman J

correctly recognized that the question whether there should be a grant

of leave to appeal against sentence is required to be considered as a

distinct matter and that the mere fact that an appeal would be upheld

in the event that leave were granted "ought not be determinative of"

the application for leave notwithstanding that "the merits of a

proposed appeal constitute a relevant consideration to the question of

leave". His Honour expressly adverted to the significance of both the

fact that the application was a Crown application for leave to appeal

against sentence and the fact that "Counsel who then appeared for the

Crown did not, at any stage of the proceedings, seek to advance any

submission to the learned sentencing judge that it would not be

appropriate" to impose "sentences of imprisonment which would be

wholly suspended insofar as their future operation was concerned".

Taking account of those matters, Zeeman J reached his dissenting

conclusion that leave to appeal should be refused. We can see no

error in either his Honour's reasoning or his conclusions.

11. On the other hand, Cox J and Crawford J, who constituted the

majority of the Court of Criminal Appeal, each failed to accord proper

significance to the failure of the Crown, in a context where the

sentencing judge had made clear that he was contemplating wholly

suspending any sentence of imprisonment, to make any suggestion that

such a course was inappropriate. Cox J expressly stated that he saw

"nothing in the conduct of the Crown in its presentation of the case

to the learned judge passing sentence which militates against granting

the Attorney-General leave to appeal". His Honour distinguished the

above comments of King CJ in Reg v. Wilton on the ground that, in

Tasmania, "a judge has an unfettered discretion to suspend the whole

or any part of a sentence" whereas, in South Australia at the time

when Reg. v. Wilton was decided, the discretion of a court to suspend

a sentence was limited to suspending the sentence wholly if the court

was of opinion that it was expedient so to do having regard to one or

more of a number of specified matters. With due respect, however,

that distinction does not affect the applicability of King CJ's

comments to cases such as the present where what is involved is an

order that the unexpired part of a term of imprisonment be wholly

suspended with the result that the offender was entitled to go free.

12. Crawford J would seem to have considered that the failure of the

Crown to make any submission in relation to the proposal to suspend

the sentences should not be taken into account by reason of the

provisions of s.386(11), (12) and (13) of the Tasmanian Criminal Code.

The effect of those sub-sections, which were added in 1987, is to

confer (sub-ss.(11) and (12)) upon "the prosecutor" an express "right"

to address a sentencing court with respect to sentence and to provide

(sub-s.(13)) that a failure by the prosecutor to exercise that right

"shall not be taken into account by the Court of Criminal Appeal in

determining an appeal against (the) sentence by the Attorney-General"

(emphasis added). Crawford J noted that the direction that a failure

of the prosecutor to exercise the "right" to address the court be not

taken into account by the Court of Criminal Appeal was confined to the

determination of an actual appeal as distinct from the preliminary

decision whether leave to appeal against sentence should be granted.

Nonetheless, his Honour concluded that the effect of those statutory

provisions was that the failure by a prosecutor to exercise the right

to address the court on sentence "should not usually be taken into

account against the Crown when considering an application for leave".

We respectfully disagree with that conclusion. In a context where the

legislature has carefully confined the statutory direction to the

determination of the actual appeal, we can see no justification for

giving it such an extended and, from the point of view of an offender,

adverse effect. To the contrary, it seems to us that the fact that

the statutory direction may preclude account being taken on an actual

appeal of the Crown's failure to suggest at the appropriate time that

an order suspending a sentence of imprisonment should not be made adds

emphasis to the need to attach proper significance to the implications

of that failure at the leave stage. It is unnecessary to consider

whether, in any event, the case was not one in which there was a

"failure by the prosecutor ... to exercise his right" to address on

sentence for the purposes of s.386(13). It should, however, be

mentioned that Mr Bugg QC informed the Court that the Crown had not

relied upon the sub-section before the Court of Criminal Appeal and

did not rely upon it in this Court.

13. The judgment of Crawford J also discloses that his Honour fell

into error in that he failed to accord proper significance to the

consideration that the applications for leave to appeal against

sentence were by the Attorney-General. His Honour apparently thought

that that consideration weighed against a grant of leave only if it

were possible to identify some particular unfairness or injustice to

the appellants in the circumstances of the particular case. As has

been said above, the deep-rooted notions of fairness which underlie

the common law principle against double jeopardy require that a court

of criminal appeal approach an application by the Crown for leave to

appeal against sentence on the basis that such leave should only be

granted in the rare and exceptional case. Indeed, that approach was

particularly appropriate in the present cases where the effect of the

sentencing judge's orders had been that each of the appellants had

been released from custody and had been permitted and encouraged to

resume his place in the community and to set out on the path of

rehabilitation.

14. It was for the above reasons that we reached the conclusion that

the majority decision of the Court of Criminal Appeal granting leave

to the Crown to appeal against sentence should not be allowed to

stand. In circumstances where the appellants had spent some time in

custody (approximately twelve weeks in the case of Everett) and had

then been released pursuant to the orders made by the sentencing judge

(for approximately twenty weeks) only to be taken back into custody

(for approximately seven weeks) under the orders made by the Court of

Criminal Appeal, it was plainly inappropriate to delay the final

resolution of the cases by remitting the applications for leave to

appeal to the Court of Criminal Appeal for the reconsideration of that

court. That being so, the interests of justice were best served by

this Court making the orders which it made.

McHUGH J The facts and issues in these matters are set out in the

judgment of the other members of the Court.

2. It is well established that, in those jurisdictions where the

Crown has a right to apply for leave to appeal against a sentence,

leave should be given only in exceptional circumstances ((9)

Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310; Reg. v. Tait (1979)

24 ALR 473 at 476-477; Reg. v. Wilton (1981) 28 SASR 362 at 367-368;

Reg. v. Hillsley [1992] FCA 39; (1992) 105 ALR 560 at 565.). The need for

exceptional circumstances imposes a stringent barrier to the grant of

leave to appeal in such cases. But, in my view, that barrier is not as

stringent as the barrier that the Crown faces in this Court when it

seeks special leave to appeal against an order of acquittal or new

trial. To allow the Crown to appeal against an order setting aside a

conviction is a step that can be taken only in very exceptional

circumstances. The common law refused to set aside a verdict of

acquittal. That tradition has influenced the application of the

Judiciary Act 1903 (Cth) in so far as the general provisions of that

Act permit the Crown to apply to this Court for special leave to appeal

against an order setting aside a conviction. Some issue of fundamental

principle must ordinarily be raised before the Court will grant the

Crown special leave to appeal against such an order.

3. The approach of a court to a jurisdiction that specifically

authorises a Crown appeal against sentence must necessarily be

different from the approach that this Court takes on an application

for special leave to appeal against an order setting aside a

conviction. The jurisdiction to hear a Crown appeal against sentence

is conferred on a Court of Criminal Appeal so that that Court can

ensure that, so far as the subject matter permits, there will be

uniformity of sentencing. Uniformity of sentencing is a matter of

great importance in maintaining confidence in the administration of

justice in any jurisdiction. Sentences that are higher than usual

create justifiable grievances in those who receive them. But

inadequate sentences also give rise to a sense of injustice, not only

in those who are the victims of the crimes in question but also in the

general public. Inadequate sentences are also likely to undermine

public confidence in the ability of the courts to play their part in

deterring the commission of crimes. To permit the Crown, as well as

convicted persons, to appeal against sentences assists in maintaining

confidence in the administration of justice.

4. If a sentencing judge imposes a sentence that is definitely below

the range of sentences appropriate for the particular offence, the

case can be regarded as falling within the rationale for conferring

jurisdiction in respect of Crown appeals. It can be regarded as

sufficiently exceptional to warrant a grant of leave to appeal to the

Crown even if no question of general principle is involved. Such

cases, however, are likely to be rare. Defining the limits of the

range of appropriate sentences with respect to a particular offence

is a difficult task. What is the range in a particular case is a

question on which reasonable minds may differ. It is only when a

Court of Criminal Appeal is convinced that the sentence is definitely

outside the appropriate range that it is ever justified in granting

leave to the Crown to appeal against the inadequacy of a sentence.

Disagreement about the adequacy of the sentence is not enough to

warrant the grant of leave. Sentencing is too inexact a science to

make mere disagreement the criterion for the grant of leave to appeal

against the inadequacy of a sentence. The requirement of leave gives

rise to the inference that Parliament intended that something more

than mere error was to be the criterion of the grant of leave.

5. The sentences in the present matters seem lenient. At all events,

that was the opinion of every member of the Tasmanian Court of

Criminal Appeal. If the Court of Criminal Appeal had merely concluded

that the sentences were definitely below the appropriate range for

this class of offence, I would not have been in favour of the grant

of special leave to appeal in these matters even if I had thought

that that conclusion was incorrect. But the reasons of each of the

majority judges in the Court of Criminal Appeal contain a fundamental

error as to the proper approach of a Court of Criminal Appeal faced

with an application by the Crown for leave to appeal against sentence.

6. It is well established that, in the exercise of its discretion to

grant leave to appeal against a sentence, a Court of Criminal Appeal

must take into account the attitude of the Crown in the sentencing

court ((10) Tait (1979) 24 ALR at 477; Wilton (1981) 28 SASR at

367-368; Reg. v. Jermyn (1985) 2 NSWLR 194 at 203-205; Economedes

(1990) 58 A Crim R 466 at 469-470.). Even when it appears that the

sentencing judge has erred in a fundamental way that may affect the

administration of justice, fairness to the sentenced person requires

that the Crown's concurrence with, or failure to object to, a proposed

course of action by the sentencing judge must be weighed in the

exercise of the discretion. This is particularly so when the convicted

person has been given a non-custodial sentence. Private litigants who

appeal against judgments and orders are not usually allowed to withdraw

concessions made or concurrences expressed in the course of litigation.

As a general rule, neither should the Crown be permitted to depart

from a course of action that may have induced the sentencing judge to

take the course that he or she did.

7. In the present case, the Crown was aware that the sentencing judge

was contemplating suspending the sentences of imprisonment. But the

Crown did not suggest that it would be an error for him to do so. As

the judgment of the other members of this Court demonstrates, neither

of the majority judges in the Court of Criminal Appeal gave proper

weight to the attitude of the Crown before the learned sentencing

judge. In those circumstances, the exercise of the discretion to

grant leave to the Crown was vitiated by their Honours' errors and the

appropriate course for this Court was to deal with the matter itself.

8. It was for these reasons that I concluded that this Court should

grant special leave to appeal, allow the appeals, and make the orders

which it did.