R v Raad [2006] VSCA 67

1 I have had the considerable advantage of reading in draft the reasons for judgment of Callaway, J.A., Buchanan, J.A. and Eames, J.A. respectively. For the reasons given by Callaway JA, and for the additional reasons given by Eames, J.A., I agree that in dealing with applications under s.582 of the Crimes Act 1958, this Court should adhere to the general rule in R v Blick.[1]

2 The practice of having a single judge of appeal hear applications for leave to appeal against sentence was introduced in this Court in 1999. As Parliament presumably contemplated when s.582 was first enacted, the new procedure was intended to operate as a filter, enabling unmeritorious applications for leave to be disposed of by a single judge without the need for a hearing before a bench of three, with all the additional time and expense which such a hearing involves for all concerned.

3 The system appears to have worked well. As the successive annual reports of the Court record, leave is refused in a significant number of cases each year. (Occasionally, following the refusal of leave, the applicant will exercise his/her right under s.582 to renew the application before a bench of three.) As a result, the sentence appeals for which leave is granted are able to be heard and determined (by a bench of three) more expeditiously than would otherwise have been the case. In this way, the administration of justice is enhanced.[2]

4 Of course, the requirements of efficiency must never be allowed to outweigh the requirements of justice in the particular case. It is in the striking of this balance that the test to be applied by the single judge in determining applications for leave under s.582 is critically important. In my opinion, for the reasons given by Callaway and Eames, JJ.A., the "reasonably arguable" test strikes the appropriate balance.

5 For the reasons given by Callaway, J.A., I would grant leave to appeal but

would dismiss the appeal.

Introduction

6 The applicant, who is now aged 29, pleaded guilty in the County Court to 35 counts of obtaining property by deception (counts 1, 3, 5 to 15, 17 to 20, 22 to 27 and 29 to 40), five counts of attempting to obtain property by deception (counts 2, 4, 16, 21 and 28) and two counts of possession of amphetamine (counts 41 and 42). The maximum custodial penalties for those offences were ten years' imprisonment, five years' imprisonment and 12 months' imprisonment respectively. The applicant admitted one previous conviction for theft at the Magistrates' Court at Preston in June 2001, for which, on appeal to the County Court, he was sentenced to be released on a community-based order, and seven previous convictions, for making a false statement to obtain money and using a false instrument with intention, at the local court at Parramatta in August 2003, for which he was sentenced to periodic detention for a period of four months.

7 After hearing a plea for leniency on his behalf, the learned judge convicted the applicant on 15th August 2005 and sentenced him to two years' imprisonment on each of the 35 counts of obtaining property by deception, 12 months' imprisonment on each of the five counts of attempting to obtain property by deception and seven days' imprisonment on each of the two counts of possession of a drug of dependence. His Honour directed that all the sentences be served concurrently, making a total effective sentence of two years' imprisonment. A non-parole period of 12 months was fixed and a declaration regarding 18 days' presentence detention was made, together with orders for compensation pursuant to s.86 of the Sentencing Act 1991.

8 The applicant seeks leave to appeal on the following grounds:

"1. The learned sentencing judge erred by failing, or failing

adequately, to consider and apply the totality principle.

PARTICULARS

(a) having inadequate regard to the implications of the 19 month term of imprisonment imposed on the applicant by the Magistrates' Court on 9th September 2004, including by finding that the offences on the presentment were '...separate and distinct in nature from all but a few of the 66 charges, the subject of your earlier sentence';

(b) failing to refer to the totality principle in his reasons for sentence; and

(c) imposing a term of imprisonment that infringes the totality principle.

5. The individual sentences, total effective sentence and minimum term are manifestly excessive.

6. The imposition of an immediate term of imprisonment was, in the circumstances, manifestly inappropriate."[3]

9 On 25th November 2005 a single judge of appeal referred the application for leave to be heard by the Court of Appeal. His Honour did so because of a perception that there was a difference of view among members of the Court as to the test to be applied on an application for leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958. The President directed that the application be heard by a court of five.

10 Before turning to the test to be applied on a s.582 application and counsel's submissions, I shall say something briefly about the offences, the sentence imposed on the applicant in the Magistrates' Court on 9th September 2004 and the sentence imposed on a co-offender, Walid Abdullatif. Between 15th November 2003 and 30th January 2004 the applicant and Abdullatif used skimmed information from credit cards to purchase, or attempt to purchase, goods from a variety of retail traders. On some occasions Abdullatif purchased goods and purported to pay for them by supplying credit card numbers and their expiry dates, unauthorised by, and unknown to, the owners of the cards. The applicant was not present but had either given Abdullatif the numbers and expiry dates on a piece of paper before he attended the outlet or supplied that information to him by telephone when he rang from the store in question. Abdullatif usually told the store attendant that the applicant was his brother, Kevin Haddad, and that it was the applicant's credit card. If the attendant required the card holder's signature before completing the transaction, the applicant attended and signed as Kevin Haddad. When proof of identity was requested, he produced a false driver licence in that name.

11 On other occasions the applicant purchased goods himself. He paid for them either by using counterfeit cards produced by skimming electronic data from genuine cards and re-encoding it on the counterfeit cards or by unauthorised use of credit card numbers and expiry dates skimmed from genuine cards. Abdullatif often accompanied him at the time of those transactions or arrived later to carry the goods away. Abdullatif, too, used a false name and sometimes produced a false driver licence in the name of Rhys Biggs when asked for proof of identity, but the judge's finding that the applicant was the principal offender is no longer challenged.

12 The total value of the property obtained, none of which has been recovered, was $82,215. In each case the purchase price was debited to the true card holder's account. When the deception was discovered, the bank that had issued the credit card credited the card holder's account where false credit cards were used or there were forged signatures. Where transactions were entered into simply in reliance upon credit card numbers and expiry dates, without either presentation of a card or the obtaining of a signature, the retailer had to bear the loss. The compensation orders to which I have referred related to claims by retailers. The total value of the property the subject of the attempts was a further $31,838. The 40 offences involved 19 retailers and 15 credit card holders.

13 On 4th February 2004 the police executed search warrants at a number of addresses connected with the applicant and Abdullatif. In the course of those searches they located two separate items of white powder believed to be amphetamine. They became the subject of counts 41 and 42. The applicant and Abdullatif were arrested on the same day, but there was a good deal of work involved in preparing the hand-up brief and they were not charged until 20th August 2004. In the meantime the applicant was convicted of 64 other offences[4] committed between 1st October 2003 and 26th May 2004, for which he was sentenced in the Magistrates' Court on 9th September 2004. The total effective sentence imposed was one year and seven months' imprisonment with a non-parole period of 12 months. There were 112 days' pre-sentence detention and the applicant was released on parole on 13th May 2005. I shall say more about the offences dealt with in the Magistrates' Court when I turn to counsel's submissions.

14 The applicant was originally charged with 83 offences, but on 29th July 2005 he indicated a plea of guilty to the present presentment[5]. Abdullatif had pleaded guilty at an earlier stage and was sentenced on 20th May 2005 by the same judge who sentenced the applicant. He was convicted on 28 counts of obtaining property by deception, on each of which he was sentenced to 12 months' imprisonment, and five counts of attempting to obtain property by deception, on each of which he was sentenced to six months' imprisonment. As in the case of the applicant, all the sentences were to be served concurrently, making a total effective sentence of 12 months' imprisonment but, instead of a non-parole period, eight months of the sentence was suspended for an operational period of 12 months.

Section 582 applications

15 Sections 567(d), 568(4) and 582 appear in Part VI of the Crimes Act. Section 567(d) provides:

"567. A person convicted on indictment or for a relevant summary offence heard and determined by the County Court pursuant to section 359AA may appeal under this Part to the Court of Appeal -

...

(d) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law."

"(4) On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal."

"582. The powers of the Court of Appeal under this Part to give leave to appeal ... may be exercised by a Judge of Appeal in the same manner as they may be exercised by the Court of Appeal, and subject to the same provisions; but, if a Judge of Appeal ... refuses an application on the part of the appellant[6] to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Court of Appeal."

Those provisions derive from ss.3(c), 4(4) and 17 of the Criminal Appeal Act 1914, which in turn was based on the English Criminal Appeal Act 1907. They have counterparts in most of the other Australian States.[7]

16 Before the establishment of the Court of Appeal in 1995, s.582 made the same provision for a single judge to exercise the powers of the Full Court under Part VI, but that facility was not used. The practice was for all applications for leave to appeal against sentence, like applications for leave to appeal against conviction, to be heard by three judges and, if leave to appeal was granted, for the application to be treated as the appeal. The Court of Appeal adopted the same practice until 1999, since when most applications for leave to appeal against sentence that are not conjoined with applications for leave to appeal against conviction have first been heard by a single judge of appeal pursuant to s.582. They have then proceeded to a court of three, as appeals, if leave is granted or, still as applications, if the applicant exercises the right conferred by the concluding words of s.582.

17 One of the first applications heard by a single judge was R. v. Blick[8]. Winneke, P. granted leave to appeal and the Court of Appeal dismissed the appeal, which well illustrated the difference between the role of the single judge deciding a leave application and the role of the Court deciding an appeal. It is customary for either the judge or counsel to warn a successful applicant that, just because leave is granted, it does not mean that the appeal will succeed. It quite often happens that the single judge grants leave and the Court dismisses the appeal. Sometimes the same judge who granted leave is one of the three judges who hear the appeal and, when it is all fully argued out, agrees that the appeal should be dismissed.

18 In R. v. Blick Winneke, P. said:[9]

"On an application of this nature, as I have said before, the question for this court is whether the grounds of appeal ... are reasonably arguable. If one or more of the grounds satisfy that test then, generally, leave should be granted." (Emphasis added.)

19 Those observations were subject to comment on two occasions over the next 12 months. In the appeal in R. v. Blick itself, I said (with the agreement of Batt, J.A.) that they would afford guidance to single judges in future cases as well as emphasising the difference between the role of the single judge considering the application for leave and the role of the court of three hearing the appeal. I continued:

"It would, for example, be quite wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court of three would think that no different sentence should be passed. That would be to pre-empt the appeal and to deny the applicant due process."

Nine months' later, in R. v. Mai[10], I explained the thinking that had lain behind my saying, in R. v. Blick, that it would be wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court of three would think that no different sentence should be passed. I said:

"The first of those alternatives probably requires no elaboration, but on reflection it may be as well to explain the basis of the second. A person convicted is entitled to be lawfully sentenced once. If the sentence below is infected by specific error, the single judge has no power to re-sentence, but a court of three does."

20 A different view was expressed by Buchanan, J.A. in R. v. Idrizi[11]. His Honour said:

"Accepting, for the sake of argument, that the sentencing judge erred in the respects contended for by the applicant's counsel, I am still not minded to grant leave. In my view, the grant of leave should depend upon the existence of some prospect of success of the appeal, that is, there must be an arguable ground of appeal which has a reasonable prospect of leading to the imposition of a lesser sentence than that imposed by the sentencing judge. In my opinion, if the sentencing discretion were to be reopened in the present case, I do not think that there is any reasonable prospect of an appellate court imposing a lesser sentence than four years and eight months' imprisonment with a minimum term of 15 months' imprisonment." (Emphasis added.)

Later he explained that R. v. Idrizi was a case where there was no prospect that a lesser sentence would be imposed. Leave was refused. His Honour was not referred to the explanation of R. v. Blick in R. v. Mai.

21 Two views emerged in the course of argument in the present case. Both views recognised that the judge hearing a s.582 application has a discretion and that that discretion is not to be fettered by an inflexible rule[12]. That is why I italicised the word "generally" when I set out the seminal passage from R. v. Blick in [18] above.

22 The competing views were that, as a general rule -

(a) a single judge should grant leave if there is a reasonably arguable ground, even if he or she considers that it would probably not be made out when it was fully argued or that the court of three would think that, even though it was made out, no different sentence should be passed; or

(b) a single judge should grant leave if there is a reasonably arguable ground and that ground, if upheld, could result in a lesser sentence on appeal.

The Director of Public Prosecutions, at whose request the single judge referred this application for leave to be heard by the Court of Appeal, argued for the second view. The Director emphasised the word "could", as I have in (b). Mr Tehan submitted that we should not depart from R. v. Blick as explained in R. v. Mai.

23 The difference between the two views turns solely on whether the single judge should refuse leave, even where a ground is reasonably arguable, if he or she is satisfied that it could not result in a lesser sentence on appeal. Although that rider is superficially attractive, I do not consider that the Director's submission should be accepted. In my opinion, we should adhere to the general rule in R. v. Blick both as a matter of principle and for pragmatic reasons[13].

24 The reason based on principle appears from R. v. Mai. A trial judge has jurisdiction to sentence an offender. The Court of Appeal has jurisdiction to resentence the offender or to say that, although there has been error below, no different sentence should be passed. A single judge, exercising the powers of the Court of Appeal to grant leave, has no authority to decide that the sentence below should stand if it is infected by error. An offender is entitled to be sentenced according to law and that can be done only by a trial judge or by the Court of Appeal.[14]

25 As the High Court has often emphasised[15], the proper starting point is the statutory provisions. They contemplate, in the case of a sentence, that a person who has been convicted and desires to appeal under Part VI[16] must first obtain leave to appeal. Only then are the provisions of s.568(4) enlivened.[17] A single judge of appeal is relevantly authorised by s.582 to exercise only the power of the Court of Appeal to give leave to appeal.[18] He or she is not authorised, by s.582 or at all, to exercise the power of the Court of Appeal to determine, pursuant to s.568(4), whether a different sentence should have been passed or a different order made.

26 There is more than one pragmatic consideration leading to the same conclusion. First, the materials available to the single judge are less extensive than the materials available to the court of three.[19] Secondly, only one mind is brought to bear on the case, whereas the law requires at least three minds unless the President directs that an appeal be heard by a court of two.[20] Thirdly, the single judge ordinarily prepares eight applications to be heard on one day. In the interests of efficiency, he or she should not examine the papers more carefully than is necessary to decide whether leave should be granted or refused or to direct, in an appropriate case, that the application itself be heard by the Court of Appeal.

27 Properly applied, the test in R. v. Blick should not lead to an over generous grant of leave to appeal. Even in the case of alleged specific error, a ground must be reasonably arguable. I do not think that it is wise or profitable to attempt to define "reasonably". The concept of reasonableness pervades the common law and part of its utility lies in its breadth and flexibility. It is enough to say that not every bona fide contention is reasonably arguable and that an experienced judge of appeal, apprised of a ground in advance and given an opportunity to reflect on it, is often able to conclude that it is not reasonably arguable.

28 In the case of manifest excess, it has to be remembered that a court of three would not be entitled to substitute its own opinion simply because it differed from the sentencing judge. The sentence would have to be shown to be outside the range, for the primary sentencing discretion is confided to the judge at first instance.[21] It may be reasonably arguable that a sentence is severe, even very severe, without its being reasonably arguable that it is outside the range. When that is steadily borne in mind, it is often appropriate to say that it is not even reasonably arguable that a sentence is manifestly excessive.

29 I acknowledged earlier that the rider proposed by the Director was superficially attractive. No degree of attraction, however, can overcome the difficulty that it is inconsistent with the statutory provisions. Even if it were consistent with those provisions, I should still hesitate to adopt it. Morally, not just legally, an offender is entitled to be sentenced, at least once, according to law. Pragmatically, it would make for complexity to have two levels of persuasion, with the applicant having to show that a ground was reasonably arguable and the Crown having to show that there was no prospect of the sentence being reduced. The occasionally futile appeal is a price worth paying for a simple system that conforms with principle, especially as an offender who appeals against a manifestly inadequate sentence runs the risk of that sentence being increased[22].

The present case

30 Mr. Tehan argued ground 1 first. The commission dates of the 64 offences of which the applicant was convicted in the Magistrates' Court on 9th September 2004 were between 1st October 2003 and 26th May 2004. The commission dates of the 42 counts on the presentment were between 15th November 2003 and 30th January 2004. Sixteen of the 64 offences in the Magistrates' Court fell within the period of the presentment and five were prior to that period. There were eight charges of obtaining property by deception, three of attempting to obtain property by deception, 13 of dealing with the proceeds of crime, two of realising stolen goods, two of handling stolen goods, four of possessing equipment to make false documents, two of making a false document, three of using a false document, 11 of possessing a false document, two of possessing data for computer crime, two of trafficking amphetamine, four of possessing a drug of dependence, two of stating a false name, two of possessing a regulated weapon and single charges of theft of a motor vehicle, possessing the proceeds of crime, dealing with property intending it to become an instrument of crime and stating a false address. A relatively small number of the offences involved Abdullatif.

31 Counsel submitted that 53 of the offences dealt with in the Magistrates' Court related, in one way or another, to dishonest dealing in property, including possession of the means to execute fraud or deal with the proceeds of fraud, and that, of the 11 other offences, some were of an ancillary character and the others were drug offences reflecting the setting in which the applicant offended. That being so, the submission continued, the judge had erred when he said, in the course of his sentencing remarks, that the offences on the presentment were separate and distinct in nature from all but a few of the charges dealt with in the Magistrates' Court. I accept that submission. As the Director acknowledged, his Honour did not receive as much assistance from the Crown on the plea as might have been desirable. I would accordingly uphold ground 1(a), grant leave to appeal and turn to the question posed by s.568(4) whether a different sentence should have been passed.[23] It is unnecessary to consider the other grounds except to the extent that they bear on that question.

32 Mr Tehan emphasised a number of mitigatory factors, including the following: the applicant had pleaded guilty at a relatively early stage; during the period of the offending, he was estranged from his wife and children and addicted to cocaine; after his release on parole he returned to his family, found work and remained free of drugs; he served part of his prison term in protection after being assaulted in custody and still requires protection; there had been the delay in charging the applicant to which I have earlier referred; he had not previously been sentenced to a term of imprisonment; and there was evidence regarding the applicant's wife and children which, although it did not show exceptional hardship, further illustrated the rehabilitation that he had achieved whilst in custody and on parole. He had also completed a number of TAFE courses. There was other material in mitigation to which I have had regard.

33 Counsel also argued, conformably with his submissions in support of ground 1, that totality required a lesser sentence than two years' imprisonment with a non-parole period of 12 months. That was so, he said, not only because of the commonality between the offences dealt with in the Magistrates' Court and those on the presentment but also because the applicant had been released from prison and was successfully completing his period of parole.

34 I am not persuaded by those submissions. The offending the subject of the

presentment is too serious to permit of a more lenient sentence. I have already referred to the period of the offending, the number of counts, the amounts involved and the number of traders and card holders affected in addition to the banks. As the judge said, this was a case of wholesale fraud that went far beyond funding a cocaine habit. Importantly, criminal conduct of this kind strikes at the heart of the way in which ordinary commercial transactions are now conducted. When it is carefully planned and engaged in on a large number of occasions, it often requires stern punishment in which general deterrence plays a large part.

35 Were it not for the mitigatory factors personal to the applicant, he would deserve a substantially longer sentence than two years' imprisonment with a non-parole period of 12 months. A similar observation may be made about the two sentences, in the Magistrates' Court and the County Court, taken together. The sentence is rendered more onerous by the fact that the applicant was released on parole and has now been returned to prison, which would not have happened if he had been sentenced for all the offences at the same time; but it should not be overlooked that, if he had been sentenced for all the offences at the same time, the mitigatory factors would have been fewer. In my opinion, no different sentence should be passed.

36 Conformably with these reasons, leave to appeal should be granted but the appeal should be dismissed[24].

37 I have had the considerable advantage of reading the draft reasons prepared by Callaway, J.A. I agree with his conclusion that the application for leave to appeal should be granted and the appeal dismissed. Unfortunately I do not agree that the grant of leave by a single judge is compelled by the identification of a ground that is reasonably arguable.

38 When an application for leave to appeal is heard by a court of three judges, generally the court will not conduct the appeal in two stages by considering first whether a ground is arguable and then whether it succeeds, but rather march directly to the second question. Applications for leave to appeal against sentence heard by a single judge pursuant to s.582 of the Crimes Act 1958, on the other hand, are limited to the question whether leave should be granted. In my view the end to be achieved by resort to s.582 is to identify applications which have no prospect of ultimate success and assign reasons for so concluding in the hope that the applicants will be dissuaded from requiring the diversion of the Court's resources by electing to have the applications heard by courts consisting of three judges. I see the mischief at which the section is aimed as the dissipation of the resources of this Court by the proliferation of unmeritorious appeals.[25]

39 I am of the opinion that it is consistent with the achievement of that end and with the words of the statute for a single judge to refuse leave to appeal in a case which is hopeless in the sense that, although it is arguable that the sentencing judge fell into error, nonetheless there is no reasonable prospect that, if the applicant is to be resentenced, the Court of Appeal will impose a lesser sentence than that fixed at first instance. By "no reasonable prospect" I mean that the contention that a lesser sentence should be imposed is hopeless or entirely without merit; in other words, it is unarguable that a lesser sentence should be imposed. [26]

40 A refusal of leave on the somewhat stringent basis I propose will be relatively rare. It will be confined usually to cases in which sentences have been imposed which are obviously at or below the point where a lesser sentence will be manifestly inadequate. Those cases should be readily apparent. Accordingly, I do not think this approach will impede the efficient despatch of the applications for leave to appeal heard by a single judge.

41 Nor do I think that to refuse an application on this basis is to usurp the function of the Court of Appeal. The single judge who refuses an application because he considers there is no prospect of a lesser sentence being imposed is addressing a different question to that upon which the Court of Appeal embarks when it holds that the sentencing discretion has been reopened by reason of an error made by the sentencing judge but concludes that no lesser sentence should be imposed. The Court of Appeal determines the sentence which is appropriate to the offence and the offender. A single judge assesses whether there is a prospect of a lesser sentence being imposed. That task may be described as assessing whether the sentence is beyond the range of sentences available to a reasonable sentencing court and determining that there are no special circumstances which might warrant the exercise of the discretion to grant leave to appeal.

42 In my view the refusal of leave to appeal on the ground that there is no reasonable prospect of the ultimate success of an appeal does not constitute the denial of a right enjoyed by the applicant. An offender who on no view has received a heavier sentence than the circumstances of the offence and his personal circumstances require may not have been denied any relevant right. At all events, if an applicant desires to be sentenced by a court unaffected by any error, he or she has only to ask for the application to be determined by the Court of Appeal.

43 In the present case I consider that the sentencing judge erred in distinguishing as he did between the offences the subject matter of the counts in the presentment and the offences dealt with in the Magistrates' Court. I also consider that it is reasonably arguable that a lesser sentence should have been imposed by the sentencing judge. Nevertheless, upon a consideration of the circumstances of the offences and the matters personal to the applicant, for the reasons stated by Callaway, J.A. I am of the opinion that no different sentence than that imposed by the sentencing judge should be passed.

44 I also agree that the application for leave to appeal in this case should be granted and the appeal dismissed. However, like Buchanan, J.A. and for the reasons advanced by him, I do not agree that a grant of leave must necessarily be given upon the identification of a reasonably arguable ground although the judge hearing the application is of the view that the appeal lacks any reasonable prospects of success.

45 In the present case, the sentencing judge did fall into error and it could not be said that the application was so devoid of merit that a grant of leave should not be made. However, upon consideration, I have arrived at the view that no different sentence should be imposed.

46 I have had the advantage of reading in draft the reasons of Callaway, J.A. and of Buchanan, J.A., and as to the test to be applied for applications under s.582 of the Crimes Act 1958, I prefer the approach suggested by Callaway, J.A. In so concluding I adopt the reasons given by Callaway, J.A. but I wish to add some observations of my own, with particular reference to the situation of applications which raise a ground of appeal complaining that the sentence was manifestly excessive, that being the most common ground raised on such applications.

47 Callaway, J.A. concludes that the sole test should be whether a ground of appeal is reasonably arguable. In his reasons Buchanan, J.A. proposes what he says is a somewhat stringent additional test, one which will be determinative only on rare occasions. That test requires the judge to consider, additionally, whether a ground of appeal which he or she is satisfied is reasonably arguable might lead to a different sentence if leave is granted. Buchanan, J.A. envisages that once a ground is held to be reasonably arguable the further test will only lead to the refusal of leave where it would be "hopeless or entirely without merit" to contend that a court of three might impose a lesser sentence. However, if the judge so concluded then, in my opinion,

the application based on complaint of manifest excess must have clearly failed the first test, which is a less stringent test. The judge hearing an application would be entitled to refuse leave where the manifest excess ground falls short of being "hopeless", but where the judge concludes that it is simply not reasonably arguable that it falls outside the range.

48 It is of course true that the question whether a sentence is manifestly excessive, like the question whether a ground is reasonably arguable, is capable of producing disagreement among appellate judges. Sentencing is not a science, and for that reason a judge sitting alone on a s.582 application will approach a ground complaining of manifest excess with some caution, and be slow to conclude that the ground is not reasonably arguable. In judgments on sentence appeals this Court regularly employs a phrase that has almost become a mantra, namely, that the question whether a sentence is manifestly excessive does not admit of much argument. The excessiveness, in other words, is either manifest to the judicial observer or it is not, but the judge hearing a s.582 application raising that ground would give weight to the reality that members of courts of three judges do not always agree whether a sentence is indeed manifestly excessive.

49 However, even allowing for all the uncertainties that may attend resolution of a complaint of manifest excess, the judge hearing the application may nonetheless be satisfied that a sentence is so plainly within range as to render it not reasonably arguable that it is manifestly excessive. The mere fact that an experienced appellate advocate can articulate an ingenious and half-way convincing argument does not demonstrate that the appeal ground is reasonably arguable, merely that it is arguable. Nonetheless, in assessing the merits of the application the judge must have regard to the limited material and argument which will be advanced on a busy applications day.

50 The additional test proposed by Buchanan, J.A may, however, assume significance where the application is based on a ground complaining of specific sentencing error.

51 There are practical reasons why the Director would prefer the two stage test. If the only test was the "reasonably arguable" one, then a ground of appeal based on what is merely a technical sentencing error by the sentencing judge would result in a grant of leave and a full appeal and re-sentencing, notwithstanding that experience suggested that there was little prospect that a different sentence would be imposed on appeal. That may appear to be a waste of prosecution and legal aid resources, but as Callaway, J.A. demonstrates, there are both practical and policy reasons why a single judge ought not be permitted to deny correction of established sentencing error. That is so even where there are other sentences on which there was no error, and even if the "erroneous" sentence was to be served concurrently with other sentences.

52 Although it may be that in such circumstances the same total effective sentence and non-parole period might result, the re-sentencing might nonetheless involve a restructuring of the sentences. That might well produce a reduction in the sentence on which sentencing error had been identified, and that result could assume significance if the appellant later re-offends. There are other practical reasons, too, why reasonably arguable sentencing error should lead to a grant of leave in such circumstances.

53 It is to be borne in mind that the 2005 amendment[27] to Rule 2.09(2)(b) of the Supreme Court (Criminal Procedure) Rules 1998 produced the result that where an application for leave is made with respect to sentence only, the full statement of grounds of appeal are not required to be filed until one month after the grant of leave on a s.582 application. In other words, fresh grounds of appeal may be argued on the appeal. Thus where the judge hearing the leave application concludes that a ground of appeal is reasonably arguable, the grant of leave may result in a successful appeal against sentence for reasons unanticipated by the judge. Had leave been refused on the basis that the applicant failed to satisfy the second test - i.e. that proposed by Buchanan, J.A. - then an unwitting denial of justice might have occurred. Furthermore, in determining whether a different sentence should be passed the court of three judges would be re-sentencing upon the facts as they existed at that time[28], which might mean that evidence as to altered circumstances which have arisen since the appellant was sentenced might be considered by the appellate court.

54 As to the merits of the application for leave to appeal, I agree with Callaway, J.A., for the reasons he has given, that an error crept into his Honour's sentence by virtue of his misunderstanding as to the extent to which the offences with which he was concerned were separate and distinct from those which had earlier been dealt with in the Magistrates' Court. However, I am not persuaded that any of the other suggested errors in his Honour's sentencing approach have been established. I also agree with Callaway, J.A. that upon re-sentencing, and even when applying the correct understanding as to the relationship between the offences dealt with on the two occasions, no lesser sentence is appropriate than that imposed by his Honour, and proposed by Callaway, J.A.

[1] [1999] VSCA 211; (1999) 108 A Crim R 525.

[2] In the 2001 Annual Report, for example, it was estimated that the "screening process" at the leave application stage had saved 14 weeks of court time in that year.

[3] Grounds 2, 3 and 4 were abandoned.

[4] There were 66 charges, but two alternative charges were withdrawn.

[5] Counts 12, 15, 16, 18, 20, 21, 22, 28, 31 and 34 were rolled-up counts.

[6] Section 566 defines "appellant" to include a person who has been convicted and desires to appeal under Part VI. It therefore includes, in s.582, an applicant for leave to appeal.

[7] See ss.5(1)(c), 6(3) and 22 of the Criminal Appeal Act 1912 (N.S.W.); ss.668D(1)(c), 668E(3) and 671L of the Criminal Code (Qld.); and ss.352(1)(a)(iii), 353(4) and 367 of the Criminal Law Consolidation Act 1935 (S.A.). The provisions of the Western Australian Criminal Code, which were similar to ours, have been replaced: see Samuels v. Western Australia [2005] WASCA 193; (2005) 30 W.A.R. 473. The provisions of the Tasmanian Criminal Code are significantly different.

[8] [1999] VSCA 211; (1999) 108 A.Crim.R. 525.

[9] At 530.

[10] [2000] VSCA 184 at [21].

[11] Unreported s.582 application, 16th May 2003 at [13]. Compare R. v. Kent (unreported s.582 application, 13th February 2004) at [6] - [7] per Winneke, P.

[12] Leave has sometimes been granted because of the importance of the point raised and leave has sometimes been refused because an otherwise arguable point was not raised below. I should add that leave is not always refused for the latter reason. It depends on the nature of the point and the justice of the case.

[13] A similar conclusion has been reached in Western Australia in relation to applications for leave to appeal against conviction or sentence heard by a single judge, but the language of the relevant legislation is different: see Samuels v. Western Australia, especially at 481 [37] and 487 [56].

[14] A further reason of principle may be implicit in the observations of Mason, C.J., Brennan, Dawson and Toohey, JJ. in Bailey v. Director of Public Prosecutions [1988] HCA 19; (1988) 78 A.L.R. 116 at 117; [1988] HCA 19; 62 A.L.J.R. 319 at 319 - 320, which may apply a fortiori to a single judge. See also Buckley v. R. [2006] HCA 7.

[15] See, for example, CSR Ltd. v. Della Maddalena [2006] HCA 1 at [19] and the cases there cited in fn. 31.

[16] See fn. 6 above.

[17] R. v. GAM (No. 2) [2004] VSCA 117; (2004) 9 V.R. 640 at 663 [45] - [46].

[18] The Court of Appeal may rescind leave granted by a single judge: see Coles Myer Ltd. v. Bowman [1995] VICSC 219; [1996] 1 V.R. 457 at 460; Ermogenous v. Greek Orthodox Community of S.A. Inc. (2002) 209 C.L.R. 95 at 112 [46] and R. v. GAM (No. 2) at 663 [46].

[19] At the very least, there is no summary by the Crown either of the proceedings or of the evidence.

[20] Supreme Court Act 1986, s.11(1A). That is a power which, for good reasons, has never been exercised in relation to an appeal against sentence . Those reasons include the different dynamics of decision making on a court of two and the much greater potential for inconsistency as between differently constituted courts.

[21] Lowndes v. R. [1999] HCA 29; (1999) 195 C.L.R. 665 at 671 [15].

[22] R. v. Underwood [2005] VSCA 80.

[23] It is well established that, despite the words "should have been", that question is to be answered as at the date the appeal is decided. See, for example, R. v. Carroll [1991] VicRp 87; [1991] 2 V.R. 509 at 511.

[24] Compare R. v. Bosio and Ors. [2005] VSCA 209 at [35].

[25] Samuels v. Western Australia [2005] WASCA 193; (2005) 30 W.A.R. 473 at 482 per Steytler, Wheeler and Roberts-Smith, JJ.A.

[26] Cf. Bushell v. Repatriation Commission [1992] HCA 47; (1992) 175 C.L.R. 408 at 428 per Brennan, J.; Degiorgio v. Dunn (No. 2) [2005] NSWSC 3; (2005) 62 N.S.W.L.R. 284; Lemoto v. Able Technical Pty. Ltd. [2005] N.S.W.C.A. 153.

[27] By s.5 of the Supreme Court (Chapter VI Amendment No.6) Rules 2005.

[28] R v Carroll [1991] VicRp 87; [1991] 2 V.R. 509, at 511.