Court formalises the meaning of 'no point of principle'

The Court of Appeal has now formalised the status of the 'no point of principle' (NPP) catchword. Practice Note 8 of 2011 states:

The criminal appeal reforms currently being implemented by the Court of Appeal are designed to promote the efficient disposition of criminal appeals and to maximise the effective utilisation of judicial resources. To further these objectives, the Court wishes to discourage unnecessary citation of prior decisions of the Court.

The following practice will be adopted with effect immediately. When a bench of the Court considers that its reasons for judgment in a criminal appeal contain no new point of principle, the catchwords on the cover sheet will include the words ‘No point of principle’.

A judgment thus classified may not be cited in a subsequent appeal without the leave of the bench hearing that appeal.

This practice note formalises the point the Court of Appeal has been making for most of this year, that there are some decisions which are just not that important and so practitioners shouldn't need to trawl through countless cases for rare statements of principle. It will be important to see how the profession reacts to this practice note. Will it be thought that a diligent and professional solicitor or barrister can simply ignore any case marked NPP and still fulfilling their obligation to stay up to date in the law? Will counsel appearing on a sentencing plea refer to cases marked NPP when attempting to ascertain current sentencing practices and thread the needle between the court's denunciation of raw sentencing statistics and the court's denunciation of direct case comparisons? And what process will the Court of Appeal apply when deciding whether a case raises no point of principle? As I've written previously, there have been at least two occasions where a case marked NPP or "without precedent" appears to develop the established law.

Despite these concerns, the practice note does constitute an important step in stemming the tide that threatens to overwhelm both the court and the profession, and it is to be hoped that it will be effective in that goal.

The safety of taxis and the media beat-up

The Director of Public Transport has recently had his latest loss in the long-running battle to stop the anonymised XFJ from obtaining a taxi licence. The Court of Appeal handed down its decision last week and, like the two previous decisions, found that the Director could not use concerns over public confidence as a basis for refusing a taxi licence to a person who, 18 years ago, was found not guilty of murder due to insanity. The Court of Appeal has included a good summary of the history of the matter and its decision at the start of its judgment, which substantially reduces what I need to say about the case. My interest, instead, is on the media reaction to the decision.

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.

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.

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.

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.

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.

Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:

Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.

Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:

Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.

The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.

Dangerous delays

Applicants for special leave to appeal to the High Court are well familiar with three standard bases on which special leave is refused:

1. The case does not raise any issue of sufficient importance
2. The case does not have sufficient prospects of success
3. The case is not a suitable vehicle for raising the issue in question

So far, one striking feature of the French High Court has been its increasingly aggressive position on the issue of court delays. As a result, we may start to see the emergence of a fourth basis:

• The delays in the case have been too great to justify further extending proceedings

Encouragement or coercion

In Victoria, sentence indication schemes have evoked a range of attitudes from lawyers and the judiciary. Available in the Magistrates Court since 1992 without any legislative backing, the scheme was given a legislative footing and expanded to the higher courts as a pilot project in 2008 following a Sentencing Advisory Council report. In 2010, the council report on the pilot recommended continuation of the sentence indication scheme and the government implemented that recommendation by repealing the sunset provision that previously hung over the sentence indication clauses.

Despite this brief history of gradual acceptance of sentence indication processes, the higher Victorian courts have been generally cautious about sentence indication. They have cited concerns about judicial independence, the risk of plea bargaining and the involvement of the judge in an accused's plea decisions. Guariglia v R [2010] VSCA 343 is the latest example of this caution.

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.

Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.

The meaning of 'sentence'

Ludeman, Thomas & French v R is the first five-judge bench decision on the meaning of the new appeal provisions in the Criminal Procedure Act 2009. The court held that the right to appeal 'a sentence' and the provisions governing when the court may grant leave or allow the appeal, apply to:

• The recording of a conviction;
• The individual sentences;
• Any concurrency or cumulation orders associated with individual sentences; 
• The non-parole period;
• An aggregate sentence;
• Superannuation orders;
• Restitution orders; and
• Compensation orders.

However, the provisions do not apply to what is conventionally called the 'total effective sentence'.

Don't mention the Charter

Update - Dr Manhatten has also discussed this case - http://www.summarycrime.com/2010/11/wells-v-queen-no-2-charter-points-not.html

In my first post on this blog, I discussed the Court of Appeal's refusal to answer questions referred to it under s33 of the Charter of Human Rights and Responsibilities Act 2006. Last Thursday, the court sought to dissuade practitioners from using another avenue to obtain early and authoritative answers to questions arising under the Charter.

Appeals without precedent

Yesterday was a busy day for the Court of Appeal. Ashley and Weinberg JJA handed down 4 separate sentence appeal decisions, all of which contained the following peculiar catchword

Appeal decision without precedent value

The decisions were all highly fact-based, though Dow v R [2010] VSCA 274 and Sharkey v R [2010] VSCA 273 both adverted to the issue of how declarations of guilty plea discount can be used as a ground of appeal.

The wrong question

Giuseppe De Simone, property developer, ice-cream lover and human rights campaigner, has had another unsuccessful experience in the Court of Appeal.

Last Friday, in De Simone v Bevnol Constructions, the Court knocked back Mr De Simone's latest attempt to obtain a stay of civil proceedings concerning a dispute over the construction of a retirement village in Ocean Grove. The case concerns the principles from McMahon v Gould, and the power of an inferior court or tribunal to refer questions of law to the Supreme Court.