Malvaso v The Queen

Malvaso v The Queen - [1989] HCA 58 - HCA 1987 case summary — Zoe

[21]

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.

[25]

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.

[27]

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.

[34]

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".

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Before

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Judgment (39 paragraphs)

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