Malvaso v The Queen

The prosecuting authorities were anxious to obtain evidence to prove the involvement of Moyse in criminal dealings with drugs. They approached the applicant to seek his assistance, which he agreed to furnish on certain terms. He agreed to assist in Moyse's prosecution and to plead guilty to one count of knowingly producing cannabis (an offence created by s. 32(1)(a) of the Controlled Substances Act 1984 S.A.). The prosecution agreed that counsel for the prosecution would "stand mute" with respect to the suspension of the applicant's sentence. When the applicant pleaded guilty, his counsel, Mr. Abbott Q.C., submitted that the applicant's sentence should be suspended on account, inter alia, of the assistance he had provided in the prosecution of Moyse. Counsel for the prosecution, in performance of the agreement, made a statement before the sentencing judge. The statement in its material part was as follows:

The Crown confirms that Malvaso has been of assistance to the Crown in the following ways:

Firstly, he supplied the tape that has been talked about in connexion with the prosecution of Barry Malcolm Moyse of a drug transaction between Moyse and Mr. X, who was called at that trial, and which was taped by Mr. X. [Secondly] He gave evidence in the trial of Barry Malcolm Moyse as to that tape. Thirdly, he was prepared to give evidence for the Crown in relation to a certain count 16. Fourthly, he provided information to investigating officers from the National Crime Authority as to a crop of cannabis at Snake Gully in which, among other people, Barry Malcolm Moyse was involved.

Counsel for the prosecution informed his Honour: In July 1988, shortly before the Moyse trial commenced the Crown approached the defendant Malvaso through his solicitors and asked him to give assistance in relation to the Moyse trial by providing that tape and giving evidence. He agreed to do so and it was agreed that when he pleaded guilty to the matter before the court we would take the position as an advantage to him, for what he had done, by standing mute. That is the reason why we stand mute now. He did provide the tape; he did give the evidence and accordingly that is why the Crown takes this present position. Counsel for the prosecution observed: our muteness is muteness, more favourable than saying something but that is the situation. It is as simple as that.

The learned sentencing judge interpreted the Crown's silence "as indicating that, having regard to the special circumstances of this case, it does not, in fact, object to the course proposed by Mr. Abbott Q.C." Taking into account the assistance which the applicant had given to the prosecuting authorities and the fact that Mr. X, the informer, had been granted an immunity from prosecution, his Honour came to the conclusion:

after anxious consideration and only by a fine margin that a suspended sentence, provided that it is coupled with a substantial fine by way of immediate and tangible punishment of your criminal conduct, is an appropriate sentencing strategy in your case. The sentence imposed on the applicant was:

(2) That you be imprisoned, for a period of three calendar years.

(3) That the non-parole period be fixed at two calendar years.

(4) That the custodial sentence be suspended upon you entering into a bond of $5,000 to be of good behaviour for a period of three years upon the usual terms as to supervision by a probation officer.

The sentence was suspended pursuant to the provisions of s. 4(2a) of the Offenders Probation Act 1913 S.A. which was then in force.

The Attorney-General sought leave to appeal against the sentence thus imposed in exercise of the right conferred by s. 352(2) of the Criminal Law Consolidation Act 1935 S.A. which reads:

Where a person is convicted on information and sentenced, the Attorney-General may, with the leave of the Full Court, appeal to that Court against the sentence passed on that person, unless the sentence is one fixed by law. The grounds of appeal did not challenge the correctness of the order suspending the sentence but asserted that the head sentence, the non-parole period and the fine were manifestly inadequate.

Section 367 of the Criminal Law Consolidation Act confers on a single judge of the Supreme Court a jurisdiction to grant leave to appeal against sentence and r. 25 of the Criminal Appeals Rules 1925 prescribes the procedure which may be followed in seeking and obtaining leave to appeal. These provisions, which are usually invoked by a prisoner seeking leave to appeal against sentence, have been thought to be applicable to an application by the Attorney-General for leave to appeal under s. 352(2). It is unnecessary to consider whether that assumption is rightly made. In this case the Attorney-General's application was evidently considered by a judge in chambers without either party appearing before him and the judge referred the application to the Full Court. Thus, in this case the jurisdiction to grant leave fell for exercise by the Full Court. The application for leave was not considered - at least in terms - by the Full Court sitting as the Court of Criminal Appeal. The Court of Criminal Appeal nevertheless set aside the orders made by the sentencing judge and substituted a sentence of imprisonment for five years with a non-parole period of three and a half years without suspending the sentence. The applicant seeks special leave to appeal to this Court.

King C.J., with whose judgment Cox and O'Loughlin JJ. agreed, reviewed the circumstances of the case and came to the conclusion -

that the sentence of three years which the learned judge imposed is far too lenient and resulted from an erroneous impression as to the standards of punishment for a large commercial scale cannabis crop which are appropriate since the institution of the higher penalties and the enactment of s. 302 of the Criminal Law Consolidation Act. Forming the view that the head sentence and non-parole period should be increased, his Honour thought it necessary to consider whether that sentence should be suspended. His Honour expressed the view that: "The views of the prosecuting authorities cannot influence the court." In any event, it appeared to his Honour that counsel for the prosecution had "done no more than decline to make submissions on the point". The Court of Criminal Appeal refused to suspend the substituted sentence.

One of the factors which led the Court of Criminal Appeal to increase the head sentence and the non-parole period was the enactment of s. 302 of the Criminal Law Consolidation Act, to which the Chief Justice referred. That section required the Court in fixing the term of a sentence of imprisonment or in fixing a non-parole period to take into account statutory remissions of the period served in prison. The view had prevailed in the Supreme Court that s. 302 had the effect of requiring an increase of up to 50 per cent in head sentences for serious criminal offences in South Australia: Reg. v. Dube and Knowles [1] . That view was held to be erroneous in Hoare v. The Queen [2] , but the judgment in that case had not been delivered when the Court of Criminal Appeal reached its decision in the present case. Presumably the Chief Justice's reference to s. 302 was a reference to the operation which had been attributed to it in Dube and Knowles. The sentence which the Court of Criminal Appeal substituted thus appears to be affected by the error which led this Court to set aside the orders of the Court of Criminal Appeal in Hoare . It may be that, if the Court of Criminal Appeal had had the benefit of this Court's judgment in Hoare , their Honours would not have concluded that the sentence imposed at first instance was "far too lenient". However that may be, the sentence imposed by the Court of Criminal Appeal must be set aside.

1. (1987) 46 S.A.S.R. 118. 2. (1989) 167 C.L.R. 348.

Apart from the misconception of the operation of s. 302 affecting the exercise of the sentencing discretion, there is a question whether the Court of Criminal Appeal had jurisdiction to entertain the Attorney-General's appeal in the absence of an order granting leave to appeal. So far as the record shows, the Attorney-General's application for leave to appeal has not been formally determined. It cannot be assumed that leave was granted by implication, for the question whether leave should be granted was, in the circumstances of this case, distinct from the question of the inadequacy of the sentence imposed at first instance. The prosecution's bargain to stand mute when a suspended sentence was sought on behalf of the applicant was carried into effect and the prosecution was thus compromised in its presentation of the arguments which might otherwise have led the learned sentencing judge to impose a sentence against which the Attorney-General would not have sought leave to appeal. That is not to say that the agreement between the prosecuting authorities and the applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General's application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given. In this case, the Court did not consider that question and no order giving leave to appeal was made.

Strict compliance with procedures which authorize an increase in sentence by an appellate court should be insisted on, as it was in Neal v. The Queen [3] , before a prisoner is deprived of the liberty left to him after sentencing at first instance. As leave to appeal was not given, it is not appropriate to remit the matter of the sentence alone to the Court of Criminal Appeal for reconsideration. The application for leave to appeal must itself receive consideration.

We would grant special leave to appeal, allow the appeal, quash the orders of the Court of Criminal Appeal and remit the matter to that Court for determination of the Attorney-General's application for leave to appeal and, if leave be given, for determination of the appeal according to law.

The statutory jurisdiction to grant leave to the State to appeal against the sentence imposed by one of the State's own courts which s. 352(2) of the Criminal Law Consolidation Act 1935 S.A. confers upon the Full Court of the Supreme Court of South Australia has become commonplace throughout this country and the common law world. Nonetheless, it should not be forgotten that it represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy (see, for example, the recent discussion in the judgments of Kirby P. in Reg. v. Hayes [4] and Cooke v. Purcell [5] ). So much was made clear by this Court in Griffiths v. The Queen [6] where, speaking of a statutory provision (Criminal Appeal Act 1912 N.S.W., s. 5D) which conferred a right of appeal against sentence upon the New South Wales Attorney-General, Barwick C.J. expressed his agreement with the well-known remarks of Isaacs J. in Whittaker v. The King [7] , and added:

On my view of the proper meaning of s. 5D in the context of the Criminal Appeal Act, 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 persons (and see also, to the same effect per Jacobs J. [8] (with whose comments Stephen J. agreed) and per Murphy J. [9] ). That statement of the rare circumstances in which an appeal by the Attorney-General against sentence can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick C.J. saw as being "error in point of principle" (see Griffiths [6] ). Otherwise, it should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country. It is of particular importance in a case such as the present where an appeal by the Attorney-General against sentence lies only pursuant to a grant of leave (Criminal Law Consolidation Act 1935 S.A., s. 352(2)). In such a case, the 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. That is not, of course, to suggest that a Court of Criminal Appeal in such a case is not free to hear full argument on the merits of the proposed appeal before determining whether the circumstances warrant the grant to the prosecution of leave to appeal. 1. (1987) 29 A. Crim. R. 452, at pp. 465ff. 2. (1988) 14 N.S.W.L.R. 51, at pp. 54ff. 3. (1977) 137 C.L.R. 293, at p. 310. 4. (1928) 41 C.L.R. 230, at p. 248. 5. (1977) 137 C.L.R., at p. 327. 6. (1977) 137 C.L.R., at pp. 329-330. 7. (1977) 137 C.L.R. 293, at p. 310.

The present applicant, Gianni Malvaso, pleaded guilty and was convicted in the Supreme Court of South Australia of the offence of producing a crop of cannabis, a prohibited substance, contrary to s. 32(1)(a) of the Controlled Substances Act 1984 S.A.. The learned sentencing judge (Olsson J.) sentenced him to a fine of $5,000 and imprisonment for three years with a non-parole period of two years. In view of the special circumstances of the case, to which reference will subsequently be made, his Honour suspended the custodial sentence upon the applicant entering into a recognizance of $5,000 to be of good behaviour for a period of three years. The Attorney-General applied for leave to appeal to the South Australian Court of Criminal Appeal from the sentence on the ground that the head sentence, the non-parole period and the fine were all manifestly inadequate. The matter was heard by the Court of Criminal Appeal together with proceedings challenging the sentences imposed on two of Malvaso's co-offenders in the production of the crop of cannabis (Joseph Carbone and Rocco Sergi). In Malvaso's case, the Court of Criminal Appeal upheld the Attorney-General's appeal and substituted a sentence of imprisonment for five years with a non-parole period of three and one-half years. Their Honours declined to order that the increased sentence of imprisonment be suspended.

The question whether the circumstances of the case justified a grant to the Attorney-General of leave to appeal against the sentence imposed at first instance was apparently not adverted to in argument before the Court of Criminal Appeal. This Court was informed that it had been assumed by counsel on both sides that leave to appeal had already been granted to the Attorney-General by a single judge acting ex parte and in private chambers, that is to say, without Malvaso being afforded an opportunity of being heard. Not surprisingly, the assumption that such a course had been followed on a prosecution application for leave to appeal against sentence was mistaken. In a context where all the proceedings which were before the Court of Criminal Appeal were argued on the basis that any necessary leave to appeal had already been granted, their Honours presumably turned directly to consider the merits of all three cases without adverting to the questions whether leave to appeal had, in fact, been granted to the Attorney-General to appeal against Malvaso's sentence and, if it had not, whether it should be. In the event, their Honours did not make a formal order granting leave to appeal and it is now conceded by the Crown that no order granting leave to appeal to the Court of Criminal Appeal has ever been made. It follows that, strictly speaking, the Court of Criminal Appeal never passed beyond the leave to appeal stage and the condition precedent of the statutory jurisdiction to entertain the actual appeal was not satisfied. In that regard, it has not been suggested that one can read into the orders which the court did make an implied order granting leave to appeal. If the absence of a formal grant of leave to appeal to the Court of Criminal Appeal were the only issue in the case and the circumstances were such that leave should obviously have been granted, there would be much to be said for the view that little real point would be served by a grant of special leave to appeal to this Court to enable the orders of the Court of Criminal Appeal to be quashed and properly re-made. As will be seen, however, the sentence substituted by the Court of Criminal Appeal must be set aside on another ground. Moreover, as will also be seen, the case is not one in which a grant of leave to the Attorney-General to appeal against sentence should obviously have been made.

It is now common ground between the applicant and the Crown that the sentence imposed by the Court of Criminal Appeal cannot be allowed to stand for the reason that the members of the Court of Criminal Appeal were influenced by a construction of s. 302 of the Criminal Law Consolidation Act which this Court has since held, in Hoare v. The Queen [10] , to have been mistaken. The effect of that construction was, while it prevailed, to increase the level of sentences significantly to counteract or modify the likely effect of the operation of the statutory system allowing for the remission of sentences. That had been "made explicit" in unambiguous terms by King C.J. (with the concurrence of Bollen and von Doussa JJ.) in Reg. v. Dube and Knowles [11] :

Crimes committed on or after 8 December 1986 will attract substantially heavier sentences than hitherto by reason of the removal of the legal fetters which previously existed. Sentences, especially for serious crimes, could in some instances increase by as much as 50 per cent. 1. (1989) 167 C.L.R. 348. 2. (1987) 46 S.A.S.R. 118, at p. 124.

In Hoare , this Court held that the directive of s. 302 "to have regard to" the operation of the remissions system should not be construed as requiring or authorizing a court to negate that operation by increasing what would otherwise be the appropriate or proportionate head sentence so as effectively to deprive the prisoner of the real benefits of that system.

One can only speculate about what sentence the members of the Court of Criminal Appeal would have thought to be appropriate to the circumstances were it not for the then prevalent construction of s. 302. It seems to us to be clear that their Honours would have remained of the view that the learned sentencing judge's starting point that "in [the] absence of any special circumstances" an appropriate sentence would have been "of the order of from four to six years" was unacceptable in the context of the increased maximum sentences for such offences introduced by the Controlled Substances Act. Their Honours' view in that regard was of particular significance in a context where one of the issues being debated before them was whether the sentences imposed upon the three co-offenders manifested a lack of proportionality of treatment. On the other hand, it is also clear that their Honours' view of the effect of s. 302 was a significant inflating factor in the calculation of the sentence and non-parole period (five years and three and one-half years) which they ultimately substituted for those imposed by Olsson J. If, for example, that inflating factor led to an increase of 25 per cent, it is not apparent that the disparity between the ultimate sentence which the learned trial judge imposed (three years and a $5,000 fine with a non-parole period of two years) and the sentence which would, but for it, have been seen by the Court of Criminal Appeal as appropriate (four years with a non-parole period of two years nine and one-half months) would of itself have warranted the grant of leave to the Attorney-General to appeal against sentence. Nor, in the particular circumstances of the present case, is it apparent that the learned sentencing judge's order suspending the sentence of imprisonment of itself called for the intervention of the Court of Criminal Appeal. We turn to explain why that is so.

In his remarks on sentencing, Olsson J. identified a number of mitigating factors which he took into account both in determining the sentence and in deciding that the sentence of imprisonment should be suspended. Some of those mitigating factors were run-of-the-mill. The applicant had no prior convictions. He had entered a plea of guilty "in a timely manner". In his Honour's view, he had been "manipulated" and there was no evidence to suggest that his crime had been other than a "one off" activity. His Honour was also of the view that the applicant had demonstrated "contrition" and fully realized the "foolishness and stupidity" of his actions. Clearly, those routine mitigating factors would not have sufficed to persuade his Honour to make an order suspending the sentence of imprisonment. The circumstances and considerations which his Honour saw as being of decisive importance in that regard were, however, quite exceptional. They related to the criminal activities of one Barry Moyse, who was the instigator of the scheme to produce the cannabis crop. Moyse was a corrupt Chief Inspector of the South Australian Police. He was, at the time, the Officer-in-Charge of the Drug Squad. The applicant's involvement in the scheme had been at his instigation.

Moyse's criminality was undoubtedly the greatest of the known participants in the scheme. Subsequent to his arrest, the applicant gave valuable assistance, including the provision of the tape recording of a conversation, to the Crown in connexion with the prosecution of Moyse upon charges of other very serious drug offences to which he eventually pleaded guilty. It was accepted by the Court of Criminal Appeal that the tape which the applicant handed over and the fact that he became a prosecution witness was undoubtedly largely responsible for the change of plea which eventually led to Moyse's convictions. The applicant also co-operated with, and provided information to, the National Crime Authority including valuable information about another cannabis plantation. As an inducement to persuade the applicant to hand over the incriminating tape and otherwise to assist in the prosecution of Moyse, the prosecuting authorities undertook to the applicant that the prosecution would, as an advantage to him when he pleaded guilty, "stand mute" on the question whether any sentence of imprisonment imposed on him should be suspended. In the course of submissions on sentencing, senior counsel who appeared for the Crown duly informed the learned sentencing judge that "the Crown position is that we stand mute" and made clear that, whatever "stands mute" was intended to mean in that context, it was something upon which his Honour could act: "it is not a quality of muteness you should not take any notice of whatever." His Honour understandably interpreted the Crown's attitude "as indicating that, having regard to the special circumstances of this case, it does not, in fact, object" to a suspension of the sentence of imprisonment.

There is obvious room for some divergence of opinion about the significance of the fact that the applicant had been induced to provide information and otherwise to co-operate with the prosecution by a prosecution undertaking to the effect that the Crown would, on his plea of guilty, say nothing at all on the question whether any sentence of imprisonment should be suspended. As King C.J. forcefully points out in his judgment, it is fundamental to our notions of what is proper and desirable in the administration of criminal justice that the distinction between the role of the Attorney-General and those who assist him or her in the prosecution of crime and the role of the courts be maintained and carefully observed. It would, however, seem plain that those involved in the prosecution of the applicant did not purport to speak on behalf of the courts or to represent that the absence of any stated objection or opposition on the part of the prosecution to the suspension of any sentence of imprisonment would unduly influence the sentencing judge. It was, in our view, unfortunate that the prosecution should have fettered its ability to assist the sentencing judge by undertaking in advance to "stand mute" on any topic which was relevant to the sentencing process. Otherwise, the main effect of the undertaking to "stand mute" on the question of suspension of sentence was to focus attention upon what was of true significance in the sentencing process, namely, the fact that the applicant had provided vital and reliable information and assistance in the prosecution of a corrupt senior police officer involved in the organized production and distribution of drugs. That fact was a powerful consideration favouring exceptional leniency in the sentence imposed upon the applicant. It would be to close one's eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence. Olsson J. clearly and properly gave great weight to that consideration. In the course of his remarks on sentence, he commented that "it is vital to ensure that it be apparent that those who do co-operate and assist [in giving relevant information to the authorities] will receive adequate recognition and consideration".

There was a related factor which militated in favour of the suspension of the applicant's sentence of imprisonment. Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment. In the present case, the sentencing judge expressed the view that Malvaso's co-operation with the authorities "could well result in significant personal danger to [him] whilst in a custodial situation" and that "[s]ervice of a sentence of imprisonment [would] thus bear very heavily" upon him. It has not been suggested that his Honour's view in that regard was other than well founded. Obviously the consideration that that "significant personal danger whilst in a custodial situation" resulted from assistance given in the prosecution of a corrupt Officer-in-Charge of the South Australian Drug Squad was of unusual significance on the question whether the applicant's sentence of imprisonment should be suspended.

In these circumstances, it is not apparent to us that the order that the sentence of imprisonment be suspended was, in the particular circumstances of the case, beyond the limits of a valid sentencing discretion. Moreover, the fact that the prosecution had expressly informed the sentencing judge that it did not wish to be heard in opposition to such an order militates against the order being overridden on an appeal by the Attorney-General against sentence. In that regard, we agree with the following comments of King C.J. (with whom Mitchell and Williams JJ. agreed) in Reg. v. Wilton [12] :

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. 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 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. 1. (1981) 28 S.A.S.R. 362, at pp. 367-368.

The position is a fortiori in a case such as the present where the prosecution has, consistently with its approach at first instance, not sought to appeal against, or to question the appropriateness of, an order suspending any sentence of imprisonment.

It follows from what has been said above that special leave to appeal should be granted, the appeal should be allowed and the orders of the Court of Criminal Appeal should be set aside as having been made on what was (in the absence of leave) an incompetent appeal and as having been, in any event, vitiated by a mistaken construction of s. 302 of the Criminal Law Consolidation Act. It becomes necessary to consider what, if any, further orders should be made. As has been seen, and quite apart from the fact that almost a year has now elapsed since the sentence was imposed by the sentencing judge, there is a very real question about whether a grant to the Attorney-General of leave to appeal against sentence would, in the light of this Court's subsequent decision in Hoare [13] , have been justified. It was submitted on behalf of the applicant that this Court should proceed to dispose at least of the question whether there should, at this stage, be a grant to the Attorney-General of leave to appeal to the Court of Criminal Appeal by either granting or refusing it. As we followed the argument, the Solicitor-General did not dispute that that was one available course. Were the matter for us alone, we would have adopted it. The advantage of it would be that, if it were decided that leave to appeal to the Court of Criminal Appeal should be refused, the whole matter would be finally brought to an end while, if it were decided that leave to appeal should be granted, at least that aspect of the case would be finalized. A majority of the Court is, however, of the view that the question whether leave to appeal to the Court of Criminal Appeal should be granted should be left to that court. In those circumstances, it is preferable that we refrain from expressing a concluded view about the answer to that question.