APPEAL - Criminal procedure - Amendment - Application to add ground of appeal - Late application after appeal set down for hearing - Late applications to add grounds of appeal not to be entertained in absence of very exceptional circumstances - Proposed amendment directed to important point of principle of general application - Apparent conflict of authority between decisions of Victorian Court of Appeal and decision of New South Wales Court of Appeal - Possible Commonwealth Constitutional ramifications - Application allowed - Appellant directed go give notice pursuant to s 78B of Judiciary Act 1903 (C'th) - Supreme Court (Criminal Procedure) Rules 2008, Order 2.

1 This is an application for leave to amend grounds of appeal against sentence by adding thereto the following:

The learned judge erred in failing to take into account the fact that the Commonwealth offence of trafficking in a controlled drug contrary to s 304.2 of the Criminal Code of the Commonwealth, (a) could have been charged instead of the State offence of trafficking a drug of dependence contra to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, (b) was in the circumstances of this case just as appropriate as each State offence and (c) is less punitive than the State offence since it carries a maximum penalty of ten years' imprisonment compared with the maximum penalty of 15 years' imprisonment in the case of the State offence.

2 The original application for leave to appeal against sentence was filed on 16 June 2010 according to the procedure which applied until the coming into force of amendments made at the beginning of this year to Order 2 of the Supreme Court Criminal Procedure Rules 2008 ('the Rules').

3 By direction of the Registrar of Criminal Appeals, the application was later brought under the operation of the new regime and so on 27 May 2011 the application for leave to appeal came on for hearing before a single Judge of Appeal pursuant to s 315 of the Criminal Procedure Act 2009. The judge allowed leave to appeal on the only ground of appeal then advanced, namely, that the sentencing judge gave insufficient weight to mitigating circumstances in favour of the appellant.

4 Following the grant of leave to appeal, the appellant's written case was filed on 21 July 2011 and the Crown's response to the appellant's written case was filed on 8 August 2011, within the 21 days for consideration which the Rules allow. On 1 September 2011, the appeal was listed for hearing today.

5 The amendments to Order 2 of the Rules which came into force at the beginning of this year effected a substantial change to the procedure to criminal appeals in Victoria. As was made plain in the course of consultations with the legal profession and other interested parties during the months which preceded the changes, they were necessitated by the ever increasing volume of criminal appeals with consequent increase in the time it was taking to dispose of criminal appeals and the resultant injustice of delay.

6 As was also made plain during consultations, and as part of the educative programme which accompanied the introduction of the amendments to the Rules and the associated Practice Direction No.2 of 2011, the new rules and their ability to cut delays to an acceptable level demand close compliance with the new procedure.

7 There is no longer room for late applications for leave to amend or other such unsatisfactory practices as were tolerated in the past. The new rules and practice direction afford adequate time for the revision of grounds of appeal before an appeal is listed for hearing and, therefore, it is not contemplated that further time will be allowed at a later stage.

8 Among other considerations, the principle imperative for that approach is that the court cannot keep up with the volume of criminal appeals with which it must deal and hope to make some inroads into the backlog unless members of the court are able to consider each side's argument and relevant authorities well in advance of the date assigned for hearing. Late applications for amendment render that impossible and so, unless rejected, are bound to result in delays and consequent injustice for other appellants. Hence, it is only in very exceptional circumstances that an application for leave to amend grounds of appeal will be considered after an appeal has been set down for hearing and, when such an application is allowed, it is to be expected that the appeal will be taken out of the list of appeals for hearing and not relisted until a significantly later date.

9 Despite all that, at 7.26 p.m. on 9 November 2011, which is to say almost six months after the application for leave for appeal was argued; more than three months since the appellant's written case was filed; more than three months after the Crown's response was filed; more than two months after the appeal was listed for hearing; and but two business days before the hearing, counsel for the appellant sent an unannounced email to the Registrar of Criminal Appeals attaching an application for leave to amend, apparently assuming that the court would as of course attempt to deal with the application in the same way as if it had been included in the appellant's written case and dealt with in the Crown's response to written case in accordance with the Rules.

10 To say the least, the lateness of the application is regrettable. The requirements of the new rules and practice direction have now been in operation for a better part of the year and should be well understood. The proposed new ground of appeal could hardly be regarded as novel. And yet the only explanation offered as to why it took until now for counsel to seek to advance the point is that it did not previously occur to him. Other things being equal, we would not be satisfied that there is any justification for the lateness of the application, let alone that the circumstances are sufficiently exceptional to warrant that leave to amend be granted.

11 Having now heard some argument on the proposed new ground of appeal, however, we think that it should be decided. The thrust of it is that, because the offence of trafficking in a controlled substance prescribed by s 304.2 of the Code is comprised of the same conduct as the offence of trafficking in a drug of dependence prescribed by s 71AC of the Drugs Poisons and Controlled Substances Act, and because the maximum penalty prescribed by 304.2 of the Code is ten years' imprisonment compared with the maximum penalty of 15 years for the offence under s 71AC of the Drugs Poisons and Controlled Substances Act, the sentencing judge was bound by the reasoning in R v Liang and Li[1] to take the lesser penalty under s 304.2 into account as a relevant sentencing consideration.

12 In Liang and Li it was held that, because the prosecuting authority, namely, the Commonwealth, had an absolute discretion to determine which particular charge it would lay against an accused person, it was:

A relevant factor in the sentencing process to consider what the relevant legislative body, namely in that case the Commonwealth, regarded as the appropriate 'sentencing tariff' for an offence perpetrated against its interest or the interest of bodies for whom it had power to legislate.[2]

13 It followed, it was held, that where, as there, the Commonwealth Director of Public Prosecutions had a discretion to charge an accused for an offence committed against Telecom under either s 29A and 29D of the Crimes Act 1914 (C'th), or under s 82 of the Crimes Act 1958 (Vic), under the latter of which the sentencing regime was more punitive, and chose to proceed under the latter, it was:

a relevant and proper for the judge in sentencing to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the fact alleged against the accused.[3]

14 On one view of the matter, that reasoning does not apply in this case. Here, the prosecuting authority is the Crown in right of the State of Victoria. The relevant legislative body is the Parliament of Victoria and, as appears from s 71AC of the Drugs Poisons and Controlled Substances Act, the Parliament of Victoria regards the sentencing tariff prescribed by s 71AC as the appropriate sentencing tariff for an offence of the kind committed in circumstances in respect of which the Parliament of Victoria has power to legislate. Why should it be necessary to have regard to any maximum penalty other than the maximum penalty prescribed by s 71AC?

15 On the other hand, however, the Victorian Director of Public Prosecutions is authorised under s 69 of the Judiciary Act 1903 (C'th) to indict for Commonwealth offences, just as the Commonwealth Director of Public Prosecutions is authorised under s 30(1) and s 32(3)A of the Public Prosecutions Act 1994 (Vic) to sign and file indictments for Victorian offences.[4] In that sense, the Victorian Director of Public Prosecutions had a discretion in this case as to whether to proceed under s 71AC of the Drugs Poisons and Controlled Substances Act or under s 304.2 of the Code. Perhaps, too, the offence created by s 304.2 of the Code was as appropriate as the offence created by s 71AC of the Drugs Poisons and Controlled Substances Act; and certainly it was less punitive.

16 Of course, Liang and Li was concerned with a situation where a prosecuting authority of the Commonwealth instituted a prosecution in respect of offending against an instrumentality of the Commonwealth, which offending was proscribed by Commonwealth legislation, and yet, instead of charging the offender with the applicable Commonwealth offence, charged him with an arguably less appropriate offence created by State legislation which attract a higher maximum penalty. It was in those circumstances that it was said the sentencing judge was bound to have regard to the Commonwealth offence when sentencing the offender for the State offence.

17 Logically, it does not necessarily follow that, where a prosecuting authority of the Commonwealth institutes a prosecution in respect of offending proscribed by Commonwealth legislation and charges the offender with an appropriate Commonwealth offence in preference to applicable Victorian offence attracting a lesser maximum penalty, the sentencing judge is to have regard to the Victorian penalty when sentencing for the Commonwealth offence.

18 Still less is it immediately obvious why, if a prosecuting authority of the State of Victoria institutes a prosecution in respect of offending prescribed by Victorian legislation and thereby charges the offender with an appropriate Victorian offence, the sentencing judge should be required to take into account any lesser maximum penalty applicable to an alternative Commonwealth offence with which the offender could have been but was not charged.

19 But, as a matter of authority, as counsel for the appellant pointed out in the course of oral argument, the decision of the Court of Criminal Appeal in R v Young[5] supports the appellant's contention. Starke J, with whom Crockett J agreed, held that sentencing principle required that, where an accused had been convicted of a common law offence of attempting to pervert the course of justice and there was an applicable alternative Commonwealth statutory offence which attracted a lesser penalty, the judge was required to take that lesser penalty into account as a relevant sentencing consideration. In R v McEachern[6] Redlich JA, with whom Smith AJA agreed, referred with approval to what had been said in R v Young.

20 There is, however, also authority to the contrary, in R v ElHelou,[7] where the New South Wales Court of Criminal Appeal rejected an argument that, because the Commonwealth Director of Public Prosecutions could have charged an offender under s 306.2 of the Code with an offence of pre-trafficking a commercial quantity of controlled precursors, rather than the applicable alternative State offence of taking part in the supply of a prohibited drug of more than a large commercial quantity contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW), the sentence to be imposed on conviction of the State offence was to be reduced to conform to the lesser maximum penalty applicable to the Commonwealth offence. Allsop P, who delivered the principal judgment, said:

It would be inappropriate for a lesser sentence than that warranted under New South Wales law to be imposed on Mr ElHelou by reference to the possible charge under the Commonwealth law carrying a lower penalty with which offence he was not charged.[8]

21 Possibly, as counsel for the appellant argued, that aspect of the decision in R v ElHelou suffers from the deficiency that it makes no reference to Liang and Li or to the two principal decisions on which it was based;[9] still less the decision of the Court of Criminal Appeal in R v Young. It may be per incuriam. But then again, as a matter of comity, it may be that we are bound to follow it.[10]

22 It is also relevant to bear in mind that, if the appellant's argument is correct, it would seem to mean that, wherever a prosecuting authority of the Commonwealth obtains a conviction against an offender for a Commonwealth offence, but there is an alternative State offence attracting a lesser maximum penalty (with which the offender could have been but was not charged), the sentence to be imposed on the Commonwealth offence will vary according to the entirely fortuitous circumstance of whether or not the prosecutor is authorised under the laws of the relevant State to prosecute for State offences. And equally, wherever a prosecuting authority of the State obtains a conviction against an offender for a State offence, but there is an alternative Commonwealth offence attracting a lesser maximum penalty (with which the offender could have been but was not charged), the sentence to be imposed on the State offence will vary according to the entirely fortuitous circumstance of whether or not the prosecutor is authorised under the laws of the relevant Commonwealth to prosecute for Commonwealth offences. At first blush, that does seem a little odd.

23 In addition to those considerations, there are three matters which imply that this is a point of principle of sufficient general importance that it should be decided now. First, we were told that there appeals on foot in at least two other cases, Finn and Pantazis, which raise the same point of principle. Preferably, all three matters, at least so far as they involve the point, should be heard at the same time.

24 Secondly, as counsel for the Crown submitted, the ramifications of the point are broad, not just in relation to drug offences but in relation to the whole gamut of offences which are covered by both State and Commonwealth law.

25 Thirdly, if it be the fact, as was contended by counsel for the appellant, that every time a State judge sentences an offender for a State offence he or she is bound as a matter of sentencing principle to have regard to the question of whether there is a comparable Commonwealth offence attracting a lesser penalty (whether or not defence counsel chooses to refer to it) it is bound to impose a very heavy further burden on already severely overburdened sentencing judges.

26 In the result, we are persuaded to grant leave to add the proposed new ground of appeal, but we think that, because of its general importance, it should be decided by a full court of the Court of Appeal after the preparation and delivery of properly considered arguments by the appellant, and the Crown, in consultation with the Registrar of Criminal Appeals. We shall, therefore, refer the matter to the Registrar of Criminal Appeals to lay down a timetable for the filing and delivery of further written case and Crown response, authorities and re-listing at a later stage before a court to be constituted by not less than three Judges of Appeal.

1. The appellant's application for leave to amend his grounds of appeal and written case is allowed.
2. The date fixed for the hearing of the application for leave to appeal is vacated.
3. The appeal is referred to the Registrar of Criminal Appeals for directions for the filing and delivery of an amended notice of appeal and written case, Crown response and lists of authorities and for re-listing for the hearing before a court constituted by not less than three Judges of Appeal.
4. The appellant shall give notice pursuant to s 78B of the Judiciary Act 1903 (C'th) specifying that the application for leave to appeal involves a matter arising under the Constitution, or invoking its interpretation, inasmuch as the appellant contends that:

(a) In sentencing an offender for a State offence, a sentencing judge is bound to take into account as a relevant sentencing consideration in mitigation of penalty any applicable Commonwealth offence with which the offender could have been but was not charged in lieu of the State offence, if the Commonwealth offence attracts a lesser maximum penalty than the State offence; and

(b) In sentencing an offender for a Commonwealth offence, a sentencing judge is bound to take into account as a relevant sentencing consideration in mitigation of penalty any applicable State offence with which the offender could have been but was not charged in lieu of the Commonwealth offence, if the State offence attracts a lesser maximum penalty than the Commonwealth offence.

[1] (1995) 82 A Crim R 39.

[2] (1995) 82 A Crim R 39, 43.

[4] R v Holden [2001] VSCA 63; (2001) 120 A Crim R 240, 251 [31]; Fox, Victorian Criminal Procedure, 2010 [2.2.25].

[6] [2006] VSCA 290; (2006) 15 VR 615, 638 [58]; cf R v Gordon [2009] QCA 209, [36] and [37] (Keane JA).

[7] (2010) 276 ALR 734.

[9] R v Whitnall [1993] FCA 271; (1993) 42 FCR 512, 520; Scott v Cameron (1980) 26 SASR 321, 325.

[10] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151 [135]; cf Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259, 270 [31].