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].