Baseline sentencing and the High Court's implacable opposition to two-stage sentencing

The Sentencing Advisory Council currently has a reference from the Attorney-General regarding baseline sentences. The parameters of the government's idea of baseline sentences are spelt out in 5 bullet points:

Baseline sentences will apply for serious offences as defined in the Sentencing Act 1991 and for additional offences such as arson, recklessly causing serious injury, aggravated burglary and major drug trafficking.

Baseline sentences will provide the starting point for the court in determining the minimum sentence (i.e., non-parole period) to be imposed in cases where a baseline sentence applies, and will indicate the sentence that the parliament expects will be the median or mid-point of minimum sentences imposed for cases involving that offence.

In determining the non-parole period to be served by the offender, the court will be required to start from the baseline minimum sentence before applying aggravating or mitigating factors that would alter the non-parole period up or down from the baseline.

Where a baseline sentence applies, the appropriateness of a non-parole period is to be assessed on appeal primarily by reference to the applicable baseline sentence, rather than by reference to current sentencing practice.

The baseline sentencing regime is to operate so that, over time, the Court of Appeal will be able to determine whether or not the median levels of minimum sentences being handed down are in fact aligned with the baseline sentences specified by parliament and, if not, to require changes accordingly in sentencing practices.

Following yesterday's High Court decision in Muldrock v R [2011] HCA 39, one model the council presumably won't be looking to emulate is the New South Wales approach to standard non-parole periods.

Special leave report: R v Getachew

As Jeremy Gans mentioned in the comments to the previous post, the High Court has granted special leave to appeal Getachew v R. The transcript is available here. It is fascinating reading, starting with this exchange immediately after counsel make their appearances:

HEYDON J: Mr Boyce, I think it might be convenient if we hear from you first.
MR BOYCE: Thank you. Your Honours, it is submitted in this case that special leave should be refused because the applicant’s grounds have no point of principle worthy of a grant of special leave.
HEYDON J: I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.

Chris Boyce did his best to defend the decision, stating that it was a natural extension of the principle from R v Worsnop and consistent with authority in Victoria, but Heydon and Bell JJ weren't convinced. Bell J also made some remarks that could cast doubt on the reasoning that underlie Worsnop, as she questioned whether an odd-on belief that a person is awake and hence consenting could rebut a mens rea of "aware that the person is not consenting or might not be consenting" (emphasis added). She did, however, qualify her remarks and indicated that they were not concerned with the correctness of Worsnop. Ultimately, the High Court granted special leave for the DPP to appeal the decision, without calling on the DPP to make any submissions.

It looks like the Crown will be running two grounds on the appeal. The first concerned the need for s37AA and s37AAA directions at all in the circumstances, when the accused's defence is that he wasn't there, and hence consent or awareness of consent were not real issues. This invites the court to further explain Pemble and the opening words to s37AAA on when the direction is necessary. The second argument is that the judge's original direction was entirely correct. I've written about my views on the second point previously, here.

In the circumstances, I'd think that the Court of Appeal would need to hold any further appeals that raise this issue in reserve until the High Court hands down its judgment, as otherwise there could be a long string of cases ordering retrials in circumstances where the High Court later decides that the reasoning underlying the decisions is erroneous. More difficult is to know what happens to Roberts and Neal, since they relate to the same point, but weren't the subject of the special leave application. The retrial in Neal can probably stand on its own feet, but Roberts is far more similar to Getachew and, if Getachew is overturned, that should logically take the retrial order in Roberts with it. Maybe the Crown will seek the join the matters later in some way?

The new proviso - Just like the old one

One of the reforms introduced by the Criminal Procedure Act 2009 was a change to the structure of what had previously been standard form criminal appeal grounds. The old statute required an appellant on a conviction appeal to establish one of three things:

• That the verdict was unreasonable or unsupported by evidence;
• That there was a wrong decision on a question of law; or
• That on any other basis there was a miscarriage of justice.

These three grounds were then qualified by the proviso that the appeal would not be allowed if the prosecution showed that there was no substantial miscarriage of justice. Under the new Act, the proviso was folded into the substantive appeal grounds, so that the court must allow the appeal if and only if:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

Special leave update - September 2011

Before wading through the 273 pages of Momcilovic, it's worth having a brief look at the latest additions to the High Court's workload. Back on the 2nd of September, the High Court granted special leave in four criminal cases - 3 from Victoria and 1 from New South Wales.

One wrong leads to another

One sentencing principle that regularly makes an appearance in appellate judgments is that of parity, which states that it is appealable error where the sentences between co-offenders are so different (or not different enough) as to create a "justifiable sense of grievance". Where all co-offenders are sentenced at the one time, parity arguments seem to me to have particular potency, as it indicates that a single judge has failed to adopt a consistent approach to sentencing co-offenders, or alternatively, has failed to recognise the significant differences between the sentences that are appropriate for different co-offenders. But parity is not only relevant when all co-offenders are sentenced at once. It applies equally, though with more difficulty, when several co-offenders are sentenced by separate judges.

Recently though, courts have grappled with the question of how to deal with a parity ground of appeal when the comparison sentence is inadequate and the offender received an appropriate disposition. Can an offender be said to have a justifiable sense of grievance for not receiving a manifestly inadequate sentence, such as the one his co-offender received? Regrettably, the answer is yes.

Heeman, Pato and Grixti - Three recent sentencing decisions

Justices Harper and Hansen have recently released a spate of sentence appeal decisions, three of which warrant special attention.

Grixti v R [2011] VSCA 220
Grixti started as an appeal against sentence for a cannabis cultivation, but turned into an appeal against sentence on the basis of double punishment, as the offender was sentenced (following a plea of guilty) for both cultivating cannabis and possessing the product of that cultivation. The problem arose because the prosecution double-counted some harvested cannabis from earlier planets as both part of the cultivation (along with 39.75kg found at the time of arrest) and separately providing the basis for a charge of possession (which weighed 5.43kg - Somehow the plea was conducted on a total amount of 45.42kg, whereas the sum of those two values is 45.18 - It is not clear where the additional 240g came from). Prosecution and defence solicitors really need to be careful when negotiating pleas of guilty to avoid this kind of thing. It clogs up the appellate system and really is a basic error. While the prosecution ran an argument on the appeal that the possession related to distinct cannabis, this was hampered by the statement on the plea that "the dried cannabis the subject of count 3 ‘was harvested material from the crop’." The court held:

That is reasonably to be taken as a concession that the cannabis the subject of count 3 was harvested from the plants the subject of count 1 during the cultivation period of 1 April to 14 July alleged in count 1. By his plea and conviction on count 1, the appellant admitted cultivating cannabis in the relevant period, including the cannabis which he harvested that became the subject of count 3. The total weight of the cannabis cultivated was 45.42 kilograms, which included the 5.43 kilograms of dried cannabis the subject of count 3. There was no suggestion that any of the cannabis recovered, whether as living plants or dried cannabis, was cultivated outside the period charged in count 1.

 Where there are distinct factual bases, the prosecution will need to be careful to clearly articulate that basis. In this case, I suspect the prosecution meant to submit the dried cannabis came from an earlier crop, which is couldn't establish beyond reasonable doubt, whereas the cultivation charge related only to the cannabis currently being grown. However, the difference in weights made this argument more difficult to follow, and the 5.67kg difference between the plant weight and the factual basis of the cultivation charge made the limits of the cultivation charge hard to identify.

Heeman v R [2011] VSCA 221
Heeman is a case about parity between co-offenders (or, strictly, maintaining appropriate levels of disparity between co-offenders based on differences in circumstances). The Court decided that:

In my opinion the arguments put forward on behalf of the appellant do demonstrate that her position was such as to warrant a greater difference in the sentences which were imposed upon each, but in the particular circumstances of this case, I think that the difference can be appropriately represented by a reduction in the appellant’s non-parole period from 20 months to 19 months. I propose, therefore, to allow the appeal to the extent that the non-parole period should be reduced as I have indicated; but the total effective sentence remain at three years and three months.

Really? Decisions like this undermine the statements about preserving a sentencing judge's discretion, the existence of a range of correct sentences, and the need to avoid tinkering. After cases like this, you have to wonder whether there should really be only one ground of appeal against sentence - That it was outside the range reasonably open to the judge, and everything else is just an explanation for why that happened.

Pato v R [2011] VSCA 223
Pato concerns the application of the Verdins principles. The offence involved serious, alcohol-fueled violence against the offender's de facto partner. The offender relied on a psychiatric report which disclosed longstanding depression, extensive alcohol use and poor anger management. The offender's counsel relied on the Verdins principles to moderate the sentence and the judge held that:

Mr Pato, you had consumed large quantities of alcohol on this night and, to put it bluntly, you lost it. Mr Pato, having found that you were suffering severe depression I propose to moderate the sentence that I otherwise may have imposed, that is in accordance with Verdins.

This was the extent of any discussion of Verdins. The Court of Appeal held that this was insufficient and that the judge needed to do more to explain how the Verdins principles were relevant:

The difficulty is that the judge needed to go further and explain how the appellant’s impaired mental functioning was relevant to the particular factors in Verdins. Unfortunately he merely quoted passages from the report and stated that, having found the appellant was suffering severe depression, he proposed to ‘modify’ the sentence that he otherwise may have imposed, in accordance with Verdins. There was thus no indication as to which of the six factors in Verdins were relevant and the relative weight they received.

In a system of intuitive synthesis, explaining with any precision how the six different factors identified in Verdins actually impacts on the sentence is always going to be a difficult process, though it is likely that the court was looking for some sort of quantification, even if that quantification was vague by saying that the judge was moderating the sentence "somewhat", "slightly" or "significantly".

Importantly, the Court of Appeal explicitly noted the new statutory provisions on sentence appeals; s281 of the Criminal Procedure Act 2009, which requires identification of error and satisfaction that a different sentence should be imposed. While this provision was, according to the explanatory material, meant to codify existing practice, it is interesting to see the court explicitly note the new provisions and the need to consider the two questions separately.

Conservation of criticism

Last year, Carolyn Burnside attracted heavy criticism for inadequate pre-trial disclosure in a case where a complainant had previously made untrue statements in an earlier trial regarding another accused. Yesterday, the Court of Appeal released an addendum to its earlier decision after Ms Burnside contacted the court stating that she had not disclosed the material due to a belief that others had already done so. According to the addendum, another barrister made a note in the Crown case file, indicating that the material had been disclosed, though the barrister who previously held the brief now has no recollection of the matter. Ultimately, the court reiterates that the trial prosecutor, Ms Burnside, should have realised that the material had not been disclosed. The court concluded:

39 The Chief Crown Prosecutor advised the Court that the Crown accepted the proposition that in circumstances where, for any reason, a prosecutor returns a brief to prosecute in a trial and the brief is subsequently delivered to another member of counsel, the duty of disclosure arises for consideration and discharge again by the new prosecutor. It is the personal responsibility of that prosecutor to ensure that that duty has been discharged prior to the commencement of the trial and as and when any further occasion calling for its exercise arises. This Court endorses the Crown’s position as expressed by the Chief Crown Prosecutor.
40 Finally, the ground of appeal upon which the Appellant was successful was, understandably, added, by amendment, at a very late stage. The Senior Crown Prosecutor who conducted the appeal for the Crown was, clearly, insufficiently instructed as to the added ground. He ought to have sought an adjournment (to which in the circumstances, the Crown would have been entitled) to obtain full instructions as to the events which gave rise to the added ground of appeal.
41 In the circumstances it is appropriate that the criticism directed at the trial prosecutor in the Court’s judgment be tempered to take account of the matters to which reference has been made in this addendum.

This statement, which tempers the criticism of Burnside and shifts it to counsel on the appeal, should perhaps be termed 'conservation of criticism', in the theory that new facts can only shift the balance of criticism in a given situation, and neither increase or reduce the level of criticism. Then again, perhaps there are some principles of physics that simply can't be translated to a legal context.

Special leave watch: R v Guariglia

I've previously blogged about R v Guariglia [2010] VSCA 343, critical of the majority's decision to allow the appeal and its reasoning. It seems that the DPP was also unhappy with the decision, as the Crown recently sought special leave to appeal the decision (transcript here). Regretably, the High Court knocked back the application, holding that it was not a suitable vehicle and there were insufficient prospects of success.

On reading the transcript, there don't appear to be many indications of what the High Court thinks about the general issues in the case. The questions that were asked involved:

• an indication of scepticism about any practice of the judge referring to the strength of Crown case;
• a recognition that the issue relates to the free choice of plea;
• an inquiry whether this was a test case;
• an inquiry about the current status of the accused and whether he was serving time on other matters.

I must say that the DPP's argument that this was all about case management in criminal trials is a bit of a reach. I suspect that it was necessary to formulate the case that way in order to meet the general importance requirement for special leave. It did, however, invite the view that the trial judge's purpose was to pressure the accused to plead guilty, so as to get rid of the proceeding. And that view of the trial judge's actions plays into the position taken by the majority from the Court of Appeal that judicial statements about discounts on a guilty plea and the strength of the Crown case deprive a person of a free choice of plea.

Encouraging guilty pleas certainly is a way to economically resolve the business of the court and, to that extent, could be part of good case management. But where do you draw the line between proper case management and improper pressure to forfeit the right to put the prosecution to its proof? The difficulties I see with Guariglia are not the sort of "big picture" issues that would attract special leave. Instead, they relate to the court's presumption that the plea was involuntary despite the evidence that the accused was represented by competent counsel and was well able to protect his interests (as shown in his insistence that the Crown drop forfeiture proceedings against his car in exchange for the plea of guilty).

The long term effect of Guariglia are hard to predict. If the County Court adopts a cautious approach to the issues raised by the case, then judicial statements about the guilty plea discount will disappear from case management hearings, along with any preliminary thoughts about the strength of the Crown case. An intermediate step would be to continue to refer to guilty plea discounts, but omit any statements about the Crown case. In each case, the combined effect of the Court of Appeal's decision and the refusal of special leave will likely leave County Court judges more cautious about making any statements that might sway the accused's decisions regarding the plea.

When the possibility of consent is (or is not) enough

Since 1991, s36 of the Crimes Act has contained an expanded statutory definition of the circumstances in which a person is deemed not to consent to sexual intercourse. Many of these are common sense propositions and indeed, I've wondered from time to time why it is that Parliament needs to tell us, for example, that a person who submits to intercourse under duress, is taken not to consent. But it is there and courts need to make sense of it.

In Getachew v R [2011] VSCA 164, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.

Tendency, relevance and the legacy of the common law

The Supreme Court has recently released a number of rulings in an attempted murder trial from last year - DPP v Hills, NC, Cooper and RAC. Ruling No 6 concerns the operation of the UEA and warrants close consideration. The case alleged by the prosecution was that a group of four people went to the vicitm's house, abducted her, drove her to the Maribyrnong River and attempted to drown her. They desisted when they believed that another car was approaching. The Crown case relied in part on the evidence of one co-offender, Meulenbrock, who agreed to give evidence against the other co-offenders.

R v Al-Assadi: Experience of crime and apprehended bias

In the week before Easter, the Court of Appeal handed down the decision of R v Al-Assadi [2011] VSCA 111. While there were multiple grounds of appeal, the only one that succeeded was an apprehended bias argument. This case is, to my knowledge, the first time an apprehended bias argument has succeeded on the basis that the judge knew someone who had experienced a crime similar to that alleged by the complainant. It will, I expect, present substantial problems for the judge in question (who cannot be named because it would reveal the identity of a victim of a sexual offence), given the bulk of work in the County Court.

The privileged position of journalists

At the end of March, the Federal Parliament finally passed amendments to the Commonwealth Evidence Act to create what have often been called journalist shield laws. This may, however, be a misleading description if the privilege, as it arguably exists to protect sources and promote the flow of information rather than to protect journalists.

As readers would be well aware, the Commonwealth amendments will only apply in proceedings under the Commonwealth evidence laws. So far, I haven't heard whether New South Wales or Tasmania plan to follow suit. However, last Friday, The Australian ran a story that Victoria will not adopt the same provisions, and will instead adopt slightly different shield laws.

The not-so-unfettered discretion

Some days, I just can't help but feel sorry for Parliamentary drafters. Take a reasonably simple provision like s669A of the Criminal Code (Queensland):

(1) The Attorney-General may appeal to the Court against any sentence pronounced by--

(a) the court of trial; or

(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.

When Parliamentary Counsel wrote that provision, what sort of fetters do you think he or she intended would apply to the Court's ability to vary the sentence and impose such sentence as seemed proper?

In Lacey v AG [2011] HCA 10, a 6-1 majority of the High Court (Heydon J dissenting) settled on the word "appeal" in the opening words to hold that, like other appeals, the appellate court could not interfere unless it first determined error in the original sentence.

The intention to be successful

Drug offences throw up all kinds of problems for the police and the courts. Traffickers are often highly organised and highly motivated. Trafficking is also an activity that, unlike many other crimes, is designed to take place on multiple occasions over a period of time. It can be, essentially, like a business. It is for that reason that courts have recognised that carrying on a business of trafficking is, itself, a form of trafficking. This is known as Girretti trafficking and its existence is relevantly uncontentious.

However, Victorian courts have recently been struggling with various issues around Giretti trafficking. In particular, how does Giretti trafficking operate in the context of aggravated offences such as trafficking a commercial quantity of a drug of dependence, or trafficking a large commercial quantity of a drug of dependence?

"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

More unenthusiasm for interlocutory appeals

Finn v R [2011] VSCA 68 continues the general trend of the Court of Appeal discouraging the routine use of interlocutory appeals. This time, the appellant sought to challenge a decision admitting evidence of statements by a deceased under s65(2)(b) of the Evidence Act 2008.

Lies and videotapes

For several years, consciousness of guilt has posed serious problems for Victorian trial judges. While the theory behind consciousness of guilt is arguably just common sense (a person who lies about important matters or engages in other incriminating conduct, like attempting to flee the State after an alleged offence may be more likely to be guilty of that offence) the reasons for the problems numerous and arguably a predictable result of the current state of the law:

• The directions required are long and complex, requiring precise identification of each separate piece of evidence and requires the judge to suggest other explanations for the lie or other evidence.
• The Court of Appeal has been incredibly vigilant for the slightest slip
• Prosecutors, concerned about the directions leaving the jury confused or considering the issue too hard and just setting the evidence to one side, may eschew reliance on consciousness of guilt reasoning
• Defendants, concerned that extensive directions on the topic would give it unwarranted prominence, encourage prosecutors and judges to eschew reliance on full consciousness of guilt directions

Johnstone v R [2011] VSCA 60 is then merely the latest in the long line of cases where consciousness of guilt evidence has brought a trial undone.

New Criminal Appeal rules

The Court of Appeal has released a new practice statement on criminal appeals, following amendments to Chapter VI of the Supreme Court Rules. These amendments follow what seemed to be a short consultation process in the last weeks of December last year.

Commonwealth specified discounts

The obligation to quantify the discount for an early guilty plea in Sentencing Act 1991 s6AAA has clearly troubled Victorian judges. From the early comments about trying to unscramble an omelette to complaints about it being an artificial exercise, it is clear that judges are uncomfortable with the deviation from the intuitive synthesis required by the legislation. However, its worth remembering that s6AAA isn't unique. Section 21E of the Commonwealth Crimes Act (not to be confused with the Commonwealth Criminal Code), requires judges to quantify the discount for promised future cooperation. This quantification then becomes relevant as a kind of 'ceiling' on an appellate court if the offender fails to provide the promised cooperation.

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state: