Radenkovic v The Queen

High Court of Australia|1990-07-01|Before: McHugh JJ, McHugh J, Gaudron JJ

The applicant was charged with four offences under the Crimes Act 1900 N.S.W. and was found guilty of one count under each of ss. 59, 61C(1) and 61D(1) of that Act, being acquitted of another count under s. 61D(1). The offences in question arose out of a single incident, details of which are briefly recounted in the joint judgment of Toohey and Gaudron JJ. and which need not be repeated here. On 1 September 1989 the applicant was sentenced on each count to three years imprisonment with a non-parole period of eighteen months in respect of each count. The sentences, imposed under the Probation and Parole Act, were to be served concurrently. The Act, which repealed the Probation and Parole Act, came into operation on 25 September 1989.

On 18 October 1989, the Director of Public Prosecutions for the State of New South Wales sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences imposed by the sentencing judge were inadequate. The Director obtained leave and was successful in the appeal. On 6 March 1990, the Court of Criminal Appeal (Samuels J.A., Wood and Badgery-Parker JJ.) substituted the following sentences:

As can be seen, the hearing of the appeal post-dated the repeal of the Probation and Parole Act and the coming into operation of the Act.

In the present case, prior to the appeal, the three year sentence and eighteen month non-parole period initially imposed upon the applicant was redetermined in accordance with Sched. 2 and resulted in a "minimum term" of eleven months, fifteen days and an"additional term" of eleven months, eight days. That sentence may be compared to the six and a half year "minimum term" and one and a half year "additional term" substituted by the Court of Criminal Appeal. The effect of the Court of Criminal Appeal's decision was, therefore, to increase the minimum period to be served by the applicant by a factor of approximately 6.8.

Once it is accepted, as it must be, that the Court of Criminal Appeal came to the view that the original sentence imposed was manifestly inadequate, the question arises whether that Court adopted the T. approach in resentencing the applicant. It is not clear from the judgment of the Court of Criminal Appeal what approach that Court in fact followed in arriving at the substituted sentences imposed upon the applicant. In argument, counsel for the Crown accepted that the T. approach was correct and that it should have been applied in this case. The Crown's submission is simply that this case is not suitable for the grant of special leave to appeal. The Crown must therefore be understood as impliedly, and in our view rightly, conceding that the Court of Criminal Appeal did not follow the correct approach. The Court's reasons for judgment contain no indication that it embarked on the T. approach.

The Crown opposes the grant of special leave on two grounds: first, that special leave should not be granted merely to correct sentences which are thought to be excessive and, secondly, that special leave should not be granted as the T. approach had not been adopted by the Court of Criminal Appeal until after the delivery of its decision in the present case.

With respect to the first of these objections, an application asserting no more than that a sentence imposed on appeal is excessive will not normally attract a grant of special leave: Colefax v. The Queen [18] ; Lowe v. The Queen [19] , per Gibbs C.J.; [20] , per Dawson J.; Deakin v. The Queen [21] . This Court's reluctance to grant special leave against sentencing decisions has been frequently reiterated: Veen v. The Queen [22] , per Stephen J.; [23] , per Mason J.; [24] , per Aickin J.; Lowe [25] , per Gibbs C.J.; [26] , per Mason J.; [27] , per Brennan J.; [28] , per Dawson J.

[1962] A.L.R. 399. 2. (1984) 154 C.L.R. 606, at p. 608. 3. (1984) 154 C.L.R., at p. 621. 4. (1984) 58 A.L.J.R. 367; 54 A.L.R. 765. 5. (1979) 143 C.L.R. 458, at p. 461. 6. (1979) 143 C.L.R., at p. 467. 7. (1979) 143 C.L.R., at p. 497. 8. (1984) 154 C.L.R., at pp. 608-609. 9. (1984) 154 C.L.R., at p. 611. 10. (1984) 154 C.L.R., at p. 620. 11. (1984) 154 C.L.R., at pp. 621-622.

With respect to the second objection, the circumstance that the T. approach had not been adopted by the Court of Criminal Appeal until after its decision in the present case, even if it be true, is no answer to the contention that there was an error of principle embedded in the decision, though the objection might, in appropriate circumstances, provide another answer to the application for special leave, namely, that the question of principle was subsequently settled by later decisions of the Court of Criminal Appeal. However, we are unable to accept that the T. approach had not been applied before the decision in the present case. It appears from the earlier review of the authorities, which were not all cited to this Court in argument, that the Court of Criminal Appeal pursued an approach which was the same as the T. approach in at least three of its decisions prior to the present case: Valentini, Burns and the separate unreported judgment in Maclay . And, in the passage from the reported judgment in Maclay [29] , which we have already quoted, the Court stated that it had followed that approach "as a matter of course" in successive appeals heard after 25 September 1989, the present case in our view being an exception to the generality of that statement. Hence, it appears that the Court of Criminal Appeal had proceeded to its decision in this case by following an approach inconsistent with settled principle. In that respect the decision is anomalous and it has resulted in an increase in the applicant's sentences by a factor of 6.8. This very considerable increase in the applicant's sentences may be attributable in part to the failure to apply the T. approach, thereby reflecting a denial to the applicant of the benefit of taking into account the potential remissions to which he would have been entitled had that approach been applied.

The interests of the administration of justice warrant the grant of special leave to appeal in this particular case: Judiciary Act 1903 Cth, s. 35A(b). Special leave should be granted by reason of the inconsistent approach of the Court of Criminal Appeal, proceeding from what appears to be an error of principle, which produced an unjust and anomalous result in the particular case.

The applicant has requested this Court to "pass the sentence and non-parole period which should have been ordered by the Court of Criminal Appeal". That is not a course which this Court will normally follow when special leave to appeal is granted and an appeal is allowed against a sentence. The normal course is to remit the matter to the Court of Criminal Appeal which has the advantage of contemporary knowledge of both local conditions and local sentencing practices: Neal v. The Queen [30] , per Gibbs C.J. Moreover, the Court of Criminal Appeal has the benefit, which this Court necessarily denies itself by virtue of its traditional reluctance to grant special leave to appeal against sentencing decisions, of practical experience in sentencing derived from the fact that it is regularly called upon to review the merits of sentences in the ordinary course of the administration of the criminal law: Veen [31] , per Aickin J.; Neal [32] , per Brennan J. The normal course should be adopted in this case. The matter should be remitted to the Court of Criminal Appeal to set the appropriate minimum and additional terms in light of the approach contended for by the applicant, agreed with by the Crown and followed by the Court of Criminal Appeal both before and after its decision in this case.

(1982) 149 C.L.R. 305, at p. 309. 2. (1979) 143 C.L.R., at p. 497. 3. (1982) 149 C.L.R., at pp. 322-323. Dawson J.

This is an application for special leave to appeal against a sentence imposed upon the applicant by the Court of Criminal Appeal of New South Wales (Samuels J.A., Wood and Badgery-Parker JJ.). The applicant was convicted in the District Court of one count (count 1) of maliciously inflicting actual bodily harm with intent to have sexual intercourse, one count (count 2) of sexual intercourse without consent and one count (count 4) of assault occasioning actual bodily harm. He was acquitted of one count (count 3) of sexual intercourse without consent. He was sentenced to three years imprisonment on each count upon which he was convicted, to be served concurrently, with a non-probation period of eighteen months. The Crown appealed against the inadequacy of the sentence. The Court of Criminal Appeal allowed the appeal and varied the sentence as follows:

Count 4: Fixed term of two years commencing 11/08/89, entitling [applicant] to be released, subject to sentence to be imposed on count 1, on 10/08/91.

Count 2: Fixed term of two and a half years commencing 11/08/89 entitling [applicant] to be released 10/02/92 subject to sentence to be imposed on count 1.

Count 1: Term of penal servitude of four and a half years commencing 10/08/91 entitling [applicant] to be released on parole on 10/02/96, and an additional term of one and a half years commencing 10/02/96.

Between the date upon which the applicant was originally sentenced and the date upon which the Court of Criminal Appeal imposed its sentence, the Sentencing Act 1989 N.S.W. came into force. One of the objects of that Act, expressed in s. 3(a), is "to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court". That part of the Prisons Act 1952 N.S.W. dealing with remissions is repealed together with the whole of the Probation and Parole Act 1983 N.S.W.. Section 5 of the Sentencing Act requires a court when sentencing a person to imprisonment for an offence, firstly, to set a minimum term of imprisonment that the person must serve for the offence and, secondly, to set an additional term during which the person may be released on parole. Unless there are special circumstances, the additional term must not exceed one-third of the minimum term. As an alternative, a court may, in the circumstances set out in s. 6, decline to set minimum and additional terms and set instead a fixed term of imprisonment that the person must serve for the offence. Under s. 9, if a court imposes a further term of imprisonment which is to be cumulative on a previous sentence which has a minimum term, the further sentence must commence at the end of the minimum term of the previous sentence. If there is an appeal against sentence, the court of appeal may, under s. 11, vary any minimum and additional terms, rescind any minimum and additional terms and instead set a fixed term or rescind a fixed term and set minimum and additional terms, but in doing so must comply with Pt 2 of the Act which is the Part dealing with sentencing. Section 11 does not limit any other power of the court in determining an appeal.

Section 57 of the Sentencing Act, under the heading "Savings and transitional provisions", provides that Sched. 2 has effect. Schedule 2 provides, in substance, for the redetermination of existing sentences by the Offenders Review Board upon the repeal of the Probation and Parole Act by reducing the non-parole or non-probation period of each sentence by any remissions already earned and the maximum remissions which might have been earned under the Prisons Act. A sentence so redetermined is to be translated into a minimum term and an additional term calculated in accordance with a formula provided by Sched. 2. Schedule 2 also provides in cl. 8(2) that Pt 2 of the Act does not apply to a sentence imposed after the commencement of that Part if the sentence is imposed in proceedings to correct a sentence imposed before that commencement. It was not submitted, nor in my view could it be, that this provision has any application upon appeal. It is quite obviously a reference to the procedure under s. 19 of the Criminal Procedure Act 1986 N.S.W. whereby a court may reopen proceedings to correct sentencing errors. Thus there is no provision that Pt 2 does not apply on appeal and it was common ground that it applied in this case in the proceedings before the Court of Criminal Appeal.

Shortly after the decision in this case a differently constituted Court of Criminal Appeal (Gleeson C.J., Campbell and Allen JJ.) heard an appeal against sentence by a prisoner in the case of Reg. v. T. [33] . In that case, Campbell and Allen JJ. allowed the appeal and held that, as the original sentence had been imposed before the Sentencing Act came into force, the Court, whilst resentencing in accordance with Pt 2 of the Act, should determine the sentence that ought to have been imposed had the Act not been enacted and should then apply the redetermination and translation provisions of Sched. 2 of the Act to that sentence. It was said that this procedure was justified so that the prisoner would spend no longer in custody than he would have done if the appropriate sentence had been imposed in the first place. Gleeson C.J., who dismissed the appeal, did not find it necessary to decide whether the procedure adopted by the other two members of the Court was appropriate, but observed that if it were "it would mean that any re-determined sentence would be influenced by special considerations not applicable to offenders coming up for sentence for the first time under the new legislation".

Subsequently, in Bond v. The Queen [34] the Court of Criminal Appeal (Kirby P., Wood and Badgery-Parker JJ.) adopted the procedure suggested in Reg. v. T., but Kirby P. observed that for his part he adopted it "without intellectual persuasion" because the Crown accepted that it was the approach which should be taken.

In this case the applicant's original sentence was redetermined by the Offenders Review Board and translated under the Sentencing Act with the result that he was to serve a minimum term of eleven months fifteen days imprisonment expiring on 25 July 1990 with an additional term expiring on 3 July 1991. It is conceded by the Crown that, if the sentence imposed by the Court of Criminal Appeal under Pt 2 of the Sentencing Act, amounting in effect to a total of six and a half years minimum term plus an additional term of one and a half years, were to be converted back into a sentence imposed in accordance with the law before the Sentencing Act came into force, it would amount to a sentence of approximately twelve years and nine months with a non-parole or non-probation period of ten years and four months. I should say that I doubt whether such a conversion back is a useful exercise. There does not appear to be any warrant for regarding the provision made in the Sentencing Act for the redetermination of existing sentences as intended for the calculation of an appropriate sentence otherwise than for the purposes of transition to the new scheme. The Crown also conceded that the Court of Criminal Appeal in this case ought to have applied the procedure adopted in Reg. v. T. Of course it did not, Reg. v. T. not having been decided at the time, and the procedure not having gained general acceptance in the Court of Criminal Appeal before that case.

Notwithstanding the concession made by the Crown, I am not presently persuaded that the procedure adopted in Reg. v. T. is correct, having regard to the provisions of the Sentencing Act. Despite the existence of savings and transitional provisions in Sched. 2, none was provided in relation to resentencing upon appeal. The Court of Criminal Appeal was required to impose an appropriate sentence under Pt 2, not under the law as it existed before Pt 2 came into force. Obviously, the Court considered the sentence imposed by it to be the appropriate sentence under Pt 2 of the Act.

The transitional provisions for redetermining existing sentences contained in the Sentencing Act might be thought to be generous but necessary to gain acceptance of the scheme of the Act and to enable it to be implemented completely and immediately. There was no similar need for generosity in resentencing upon appeal and the Act does not display it. The Act contemplates a disparity between prisoners whose sentences have been redetermined and translated under the Sentencing Act and those who have been sentenced under Pt 2 of that Act. Such a disparity would seem to be inevitable. But that is the result of the scheme adopted and of the requirement that it be given effect at a particular juncture. Nor does the Act provide for a modified application of Pt 2 in resentencing upon appeal, any more than it does so in relation to the imposition of sentences for offences committed before the Sentencing Act came into force. In this respect a comparison may be made with the Probation and Parole Act which, before its repeal, was amended by the insertion of s. 20A dealing with minimum non-parole periods for serious offences. That section was expressed not to apply to offences committed before the commencement of the section which was 1 January 1988.

However, in the absence of full argument upon the point it would be wrong of this Court to express any concluded view about the procedure adopted in Reg. v. T. Even if it be submitted without contest, as it was, that the Court of Criminal Appeal was in error in this case in not adopting the procedure adopted in Reg. v. T., it would be inappropriate to grant special leave for the purpose of endorsing that procedure without argument from the Crown.

In the end, the ground upon which the applicant must rely is that the sentence imposed upon him by the Court of Criminal Appeal was excessive. Notwithstanding that the interests of the administration of justice in the particular case (see now Judiciary Act 1903 Cth, s. 35A(b)) have always been a matter to be taken into account in considering whether to grant an application for special leave to appeal, the grant of special leave remains discretionary and there must be some special feature of the case which warrants the attention of this Court. If mere error in the individual case were sufficient to justify the grant of special leave, there would be no difference between ordinary leave to appeal and special leave to appeal: cf. White v. The Queen [35] . Accordingly, where an application for special leave to appeal is against sentence alone, this Court has consistently taken the view that special leave should be granted only where there has been an error of law or a gross violation of the principles of sentencing. Mere excessiveness of sentence has never, of itself, been an adequate ground for the grant of special leave to appeal: Colefax v. The Queen [36] ; Lowe v. The Queen [7] . Not only does such an approach accord generally with the principles upon which special leave to appeal is granted, but it also gives recognition to the advantages which the Courts of Criminal Appeal in the States have because of their knowledge of local conditions and local sentencing practices: Neal v. The Queen [8] ; Veen v. The Queen [9] .

(1962) 107 C.L.R. 174. 2. [1962] A.L.R. 399. 3. (1984) 154 C.L.R. 606, at pp. 608-609, 611, 621. 4. (1982) 149 C.L.R. 305, at pp. 309, 323. 5. (1979) 143 C.L.R. 458, at p. 497.

The sentence imposed by the trial judge was lenient, particularly when redetermined and translated under the Sentencing Act. The increase in the term of imprisonment imposed by the Court of Criminal Appeal under Pt 2 of that Act does not disclose any error in the exercise of its discretion and there is nothing, in my view, to attract the grant of special leave to appeal. Special leave should be refused.

This application for special leave to appeal concerns the operation of the Sentencing Act 1989 N.S.W.. The long title to that Act describes it as an Act "to promote truth in sentencing; to provide for the procedure to be followed in sentencing prisoners to imprisonment and for the release of prisoners on parole; to repeal the Probation and Parole Act 1983 and amend certain other Acts; and for other purposes". What is at issue is the operation of the Sentencing Act when an offender is resentenced by the Court of Criminal Appeal of New South Wales following an appeal to that Court, the original sentence having been imposed before that Act came into operation.

On 28 June 1985, the applicant was charged with a number of offences, all arising out of an incident some two months earlier. He was indicted before a jury on four counts under the Crimes Act 1900 N.S.W., as follows: (1) maliciously inflicting actual bodily harm with intent to have sexual intercourse (s. 61C(1)); 2. and 3. sexual intercourse without consent (s. 61D(1)); 4. assault occasioning actual bodily harm (s. 59).

The applicant stood trial but in March 1987 the jury was unable to reach a verdict. He was admitted to bail until the conclusion of his retrial on 11 August 1989. This time he was found guilty on counts 1, 2 and 4 but not guilty on count 3. On 1 September 1989, his Honour Judge Flannery in the District Court of New South Wales sentenced the applicant to three years imprisonment on each count, to be served concurrently and to date from 11 August 1989. His Honour fixed a non-probation period of eighteen months to commence from 11 August 1989.

The Sentencing Act came into operation on 25 September 1989; Pt 2 is headed "Sentencing". Section 5(1) requires a court, when sentencing a person to imprisonment for an offence, to set a minimum term that must be served and an additional term during which the person may be released on parole. The additional term must not exceed one-third of the minimum term "unless the court decides there are special circumstances": s. 5(3). The minimum and additional terms together comprise "the term of the sentence of the court for the offence": s. 5(4). A court may, in the circumstances referred to in s. 6(2), decline to fix minimum and additional terms and may set instead a fixed term of imprisonment that must be served. See also s. 11(1)(b). The system of remissions in operation for many years has ceased to exist.

Section 57 of the Sentencing Act reads: "Schedule 2 has effect." Schedule 2 is headed "Savings and Transitional Provisions". Clause 5(1) of Sched. 2 provides that every sentence of imprisonment to which a person was subject immediately before the repeal of the Probation and Parole Act 1983 N.S.W. (which statute was in force when the applicant was sentenced by Judge Flannery), and in respect of which a non-parole or non-probation period then applied:

(a) a minimum term determined under this clause; and

(b) an additional term determined under this clause.

This was done so as to bring existing sentences into line with those fixed in accordance with the new legislation.

The "minimum term" is the period from the commencement of the sentence to the end of the non-parole or non-probation period "as redetermined under clause 4": cl. 5(2). The "additional term" is the period from the end of the minimum term so determined to the end of the sentence, "as reduced by any existing remission as referred to in clause 3": cl. 5(3). Minimum and additional terms determined under cl. 5 of Sched. 2 "are to be taken to have been set under Part 2": cl. 5(6). Clause 4 of Sched. 2 redetermines the non-parole or non-probation period of a former sentence by reducing that period by the total of any existing remission (as referred to in cl. 3) and all future remissions to which the prisoner might have become entitled (as estimated in accordance with cl. 4) had the former provisions relating to remission continued in force. Put shortly, the Offenders Review Board constituted by s. 44 of the Sentencing Act is to make a redetermination of the relevant non-parole or non-probation period on the basis that the prisoner would have received the maximum remission possible under s. 64(1)(a) and (b) of the Prisons Act 1952 N.S.W.. Section 64 fell within Pt 11 of the Prisons Act; that Part was omitted by Sched. 3 to the Sentencing Act. The section contained a formula for the calculation of remissions. Consistent with Pt 2 of the Sentencing Act, the minimum term to which cl. 5(1)(a) of Sched. 2 refers is the period from the commencement of sentence until a time which equates with the non-parole or non-probation period fixed by the court, less the period of remissions. To the period thus redetermined must be added the "additional term" which is the period from the end of the minimum term, as redetermined, to the end of the sentence, as reduced (in the present case) by any remission to which the prisoner would have been entitled under Pt 11 of the Prisons Act. The effect of s. 57 and Sched. 2 is that the non-probation period to which the applicant was subject became a minimum term of eleven months fifteen days expiring on 25 July 1990, with an "additional term" expiring on 3 July 1991.

The Crown appealed to the Court of Criminal Appeal on the ground that the sentence imposed by the District Court was inadequate. The appeal was allowed and the Court substituted sentences as follows:

Sexual intercourse without consent (count 2) - a fixed term of imprisonment for two and a half years beginning on 11 August 1989 and entitling the applicant to be released on 10 February 1992, subject to the sentence imposed on the first count.

Assault occasioning actual bodily harm (count 4) - a fixed term of imprisonment for two years beginning on 11 August 1989 and entitling the applicant to be released on 10 August 1991, again subject to the sentence imposed on the first count.

Maliciously inflicting actual bodily harm with intent to have sexual intercourse (count 1) - a term of imprisonment for four and a half years beginning on 10 August 1991 and making the applicant eligible for release on parole on 10 February 1996, with an additional term of one and a half years beginning on 10 February 1996.

Having determined those sentences as appropriate, Samuels J.A., with whom the other members of the Court of Criminal Appeal agreed, added: We impose the fixed terms by reason of the penalty imposed in respect of the first count and with the view that any further additional term would serve no purpose.

There are a number of grounds of appeal, most of which are unlikely to attract a grant of special leave for they do no more than attempt to argue that the sentences imposed by Judge Flannery were not inappropriate. Only two aspects of the grounds require any consideration by this Court.

The first aspect fastens on to the role of the Court of Criminal Appeal in reviewing the sentence and the non-parole period fixed by a sentencing judge. As to that, the Court of Criminal Appeal concluded that, having regard to all the circumstances surrounding the commission of the offences, the sentences imposed by the District Court were manifestly inadequate. With that conclusion there can be no quarrel. On any view they were serious offences. It is unnecessary to recount the events in any detail. It is enough to say that the applicant was a member of a band which was playing at a restaurant. After closing time the band stayed on because of a party taking place in the restaurant. The complainant had arrived while the party was in progress and joined some people whom she knew. Accounts differed of her conduct while she was at the party but there was evidence that she was dancing, as Samuels J.A. put it, "in a somewhat uninhibited fashion". There is no doubt that she had something to drink before she arrived at the party and more drinks thereafter. However, it follows from the jury's verdict that they rejected the applicant's account of sexual intercourse by consent (although they could not have been satisfied beyond reasonable doubt of the complainant's evidence as to a subsequent act of oral intercourse), that they accepted the complainant's evidence as to the violence accompanying the act of sexual intercourse and that they accepted her account of a subsequent act of gratuitous violence.

The Court of Criminal Appeal firmly rejected an approach which the Court thought underlay the remarks of the sentencing judge and the submissions of the applicant's counsel on appeal, namely, that the complainant was to some extent the author of her own misfortune. The Court concluded that, taking into account all that could be said on the applicant's behalf including his good reputation and employment record and the time spent in custody before sentence, "these sentences were manifestly inadequate". The applicant has not shown that in reaching its conclusion the Court of Criminal Appeal erred in any way.

There is, however, another aspect of the matter and it bears upon the way in which the Court of Criminal Appeal went about its task of resentencing the applicant. The applicant's submission was that, his original sentence having been fixed before the Act came into operation, the proper approach for the Court of Criminal Appeal was to consider what was an appropriate sentence before that time, namely, when the applicant was originally sentenced, and then "translate" that sentence in accordance with Sched. 2 to give effect to the provisions of the Sentencing Act. The question is one of principle but it is of some importance to see the implications of the applicant's argument. He contended that the result of the decision of the Court of Criminal Appeal was to increase the original sentences imposed by Judge Flannery, if translated under Sched. 2, by 6.8 times and, further, that the sentences imposed by that Court, viewed against the sentencing provisions existing before the Sentencing Act came into force, amount to an aggregate sentence of twelve years, with a non-parole period of about ten years. In response, Ms. Payne for the Crown said:

we did an inquiry on a back conversion of the six-and-a-half year minimum with the one-and-a-half additional and figures were in fact given that that converted to a sentence of twelve years nine months approximately, with ten years four months and seven days.

The applicant contended, and the Crown accepted, that the proper approach to be taken in the circumstances is to be found in Reg. v. T., a decision of the Court of Criminal Appeal of New South Wales (Gleeson C.J., Campbell and Allen JJ.) [10] . The question whether an appellate court may have regard to the redetermination principles in Sched. 2 to the Sentencing Act and the further question whether the sentencing discretion of such a court is fettered by the "T. approach" are not before this Court for decision. However, given the agreement between the parties, there is no reason why this Court should not accept the approach taken in Reg. v. T. for the purpose of determining the application. But it must be noted that the judgment of the Court of Criminal Appeal in the instant case was delivered on 6 March 1990, just over a week before judgment was delivered in Reg. v. T. A question therefore arises as to whether, in any event, the Court of Criminal Appeal erred in failing to review the sentences in accordance with the approach taken in that decision, assuming that approach to be correct. First, however, it is necessary to see what Reg. v. T. decided.

The leading judgment in that case was delivered by Allen J. who observed:

The effect of the Sentencing Act upon the re-sentencing of persons previously sentenced under the former legislation is a different question from that of what sentencing levels generally are appropriate under the new legislation. It is a different question because in re-sentencing it would be offensive to the spirit of the common law and in breach of the legislative intention manifest in the translation provisions of the Sentencing Act for the prisoner to be worse off, in terms of time spent in custody, than he would have been if the appropriate sentence had been passed in the first place. It must be recognized, in considering sentencing levels, that sentences imposed by way of re-sentence where the prisoner had been sentenced under the former legislation are in a special category. Campbell J. spoke to like effect. Gleeson C.J. dissented in the result of the appeal and therefore found it unnecessary to express a view as to the approach to be taken to resentencing in the circumstances then before the Court.

In Bond v. The Queen [11] , Wood J. and Badgery-Parker J. each expressed concurrence with the approach taken by the majority in Reg. v. T. Kirby P. was reluctant to accept that approach, inter alia regarding a court as bound, once a sentence had been set aside, to resentence in accordance with the law in force at the time of resentence. Nevertheless, because of existing authority, in particular Reg. v. T., and because, in Bond v. The Queen, the Crown accepted the approach in Reg. v. T. as correct, Kirby P. said: "In such circumstances, although without intellectual persuasion, I believe that it is the course that I should take here."

Unreported; 12 April 1990; Court of Criminal Appeal (N.S.W.).

As already indicated, the Crown has taken the same stand in the instant case, thereby making a review by this Court of the principles canvassed in Reg. v. T. inappropriate on this occasion. What then is there about the application to attract a grant of special leave to appeal?

As Mason J. pointed out in Veen v. The Queen [12] :

It is not the practice of this Court to grant special leave to appeal against sentence. This is because appeals against sentence rarely involve a point of law of general application (White v. The Queen [13] ). See also Lowe v. The Queen [14] . For this reason, an application for special leave to appeal that asserts no more than that the sentence is excessive cannot ordinarily expect to attract a grant of special leave. However, it is necessary to bear in mind that s. 35A of the Judiciary Act 1903 Cth, inserted by Act No. 12 of 1984, now requires this Court, in considering whether to grant an application for special leave to appeal, to have regard to a number of matters including: (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. 1. (1979) 143 C.L.R. 458, at p. 467. 2. (1962) 107 C.L.R. 174, at p. 176. 3. (1984) 154 C.L.R. 606.

In our view the interests of the administration of justice in the particular case do require consideration by this Court of the judgment to which the application relates. In the Court of Criminal Appeal, Samuels J.A. mentioned the Sentencing Act in the context of the redetermination that followed the coming into operation of that Act. But there is nothing in the judgment of his Honour that expressly, or indeed by implication, indicates that the Court was applying the principles adopted in Reg. v. T., that is, that the Court was placing itself in the position of the sentencing judge as at the time the applicant was first sentenced, was assessing appropriate sentences as at that time and was then redetermining the appropriate minimum and additional terms. Indeed, it is a reasonable inference that the Court did not approach the resentencing of the applicant in that way for one might have expected the Court to say so. Cf. Reg. v. John [15] where the "T.approach" was expressly applied in resentencing on appeal. In that event it is likely that the Court, in resentencing the applicant, applied principles different from those which the Court of Criminal Appeal adopted in Reg. v. T. and, it is to be assumed, in all comparable cases decided since then. To that extent the position of the applicant is anomalous. The number of prisoners who will be affected by the "T. approach" must be limited but, among those prisoners, the applicant has been resentenced according to principles which are not those now applied and which have resulted in a longer term of imprisonment than would otherwise have been the case.

Unreported; 17 July 1990; Court of Criminal Appeal (N.S.W.) (Gleeson C.J., Samuels J.A., Maxwell J.).

The position is that the applicant received from the Court of Criminal Appeal sentences totalling more than twelve years imprisonment when viewed at the time the original sentences were imposed. Having regard to the maximum sentences applicable (twelve years imprisonment under s. 61C(1), eight years under s. 61D(1) and five years under s. 59), the fact that all offences arose from the one incident and that the offences, though serious, were not "the worst crimes that can be imagined in these categories", to borrow the language of Samuels J.A., it does seem that the interests of the administration of justice require consideration by this Court of the sentences imposed by the Court of Criminal Appeal. That consideration leads to the conclusion that, although the sentences imposed by Judge Flannery were inadequate, the sentences imposed by the Court of Criminal Appeal are excessive. And the likelihood is that they are excessive because the Court of Criminal Appeal did not approach resentencing on what has become that Court's approach to resentencing in the case of a prisoner who was sentenced before the Sentencing Act came into force. For these reasons, the intervention of this Court is warranted.

To put the matter in this way is not to overlook the fact that it is "special" leave to appeal that is sought. But it is to recognise that there is something in the administration of justice in the case in hand that calls for consideration by this Court of the judgment below even though the other considerations to which s. 35A of the Judiciary Act refers, and considerations flowing from decisions of this Court before s. 35A was enacted, may not advance the applicant's position in this regard. That consideration alone may satisfy the Court that a grant of special leave is warranted. This is such a case.

The draft notice of appeal invites the Court to "pass the sentence and non-parole period which should have been ordered by the Court of Criminal Appeal". But it is preferable that the matter be remitted to the Court of Criminal Appeal to set the appropriate minimum and additional (or fixed) terms in the light of the principles adopted in Reg. v. T., not because those principles have the endorsement of this Court, but because they are accepted by the Crown as applicable and now have the endorsement of the Court of Criminal Appeal.

High Court of Australia Mason C.J. Dawson, Toohey, Gaudron and McHugh JJ. Radenkovic v The Queen [1990] HCA 54

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