PARTIES:	McDONALD

V

R

TITLE OF COURT:

JURISDICTION:

FILE NO: DELIVERED: HEARING DATES:

COURT OF CRIMINAL APPEAL

APPEAL from SUPREME COURT OF THE NORTHERN TERRITORY

CA2 of 1992

27 October 1992

21 October 1992

JUDGMENT OF:	ASCHE CJ

CATCHWORDS:

Criminal Law and Procedure - Appeal and New Trial, Pardon and Enquiry Subsequent to Conviction - Appeal and New Trial - Application for Leave to Appeal Against Sentence - Principles to be Exercised in Considering whether or not to Grant Leave - "at least an arguable case" should be shown that the sentencing discretion of the trial judge has miscarried or some real element of injustice might be thought to occur if leave were refused -

NTCC 1983 (NT) ss 407, 410(c), 429,
Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, considered
Green v R (1989) 95 FLR 301, referred to
Hughes v The National Trustees [1978] VR 257, considered
Matovsky (1989) 41 CLR 368, considered
R v Broadway [1957] VLR 398, considered
Griffiths (1977) 137 CLR 293, referred to
Malveso (1989) 43 ACR 451, referred to
R v Mealey and Sheridan (1975) Criminal Law Review 154, considered
R v O'Keefe [1979] VR 1, referred to
Wing Luc Foods v Le Chu Lim [1989] WAR 358, referred to

Criminal Law and Procedure - Appeal and New Trial, Pardon and Enquiry Subsequent to Conviction - Appeal and New Trial - Application for Leave to Appeal Against Sentence - Grounds for Appeal - Nothing shown to suggest Court of Criminal Appeal should reconsider broad principles established in R v Bird -
Chaloner (1990) 49 ACR 370, considered
R v Bird 56 NTR 17, considered
Trenorden (unrep decision of Full Court of the
Supreme Court of Victoria - 8 June 1989), considered
Criminal Law and Procedure - Appeal and New Trial, Pardon and Enquiry Subsequent to Conviction - Appeal and New Trial - Application for Leave to Appeal Against Sentence - Grounds for Appeal - Offences being of the Same Kind, sentences should have been Concurrent - Leave allowed -

Criminal Law and Procedure - Appeal and New Trial, Pardon and Enquiry Subsequent to Conviction - Appeal and New Trial - Application for Leave to Appeal Against Sentence - Grounds for Appeal - Sentence was Excessive - Leave Allowed -

REPRESENTATION:
Counsel:

Applicant: Respondent:

J. Stirk
M. O'Loughlin

Solicitors:

Applicant: Respondent:

McBride & Stirk
Office of the Director of Public Prosecutions

Judgment category classification:	CAT A Court Computer Code:
Judgment ID Number:	jasc92104
Number of pages:	13

jasc92014
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

No. CA 2 of 1992

BETWEEN:

GORDON MONTAGUE McDONALD

Appellant
AND:

THE QUEEN
Respondent

CORAM:	ASCHE CJ

REASONS FOR JUDGMENT
(Delivered 27 October 1992)

This is an application for leave to appeal against sentence.	Leave of the court is required by s410(c) of the Code.	The court as defined in Part 10, division 2, means the Court of Criminal Appeal.	And in turn, s407 requires that the Court of Criminal Appeal "shall be duly constituted if it consists of not less than three judges and of an uneven number of judges".		By s410(c) the right of appeal against sentence is conditional upon obtaining the leave of the court.	By s429 however, certain powers of the Court of Criminal Appeal, including the power to give leave to appeal, "may be exercised by any judge of the court, in the same manner as they may be exercised by the court and subject to the same provisions".

If the application for leave comes before the Court of Criminal Appeal, the distinction between the application and ultimate appeal, not infrequently becomes blurred, as submissions for the one tend to merge into submissions for the other; and if the court is disposed to allow the appeal, it might be a legitimate comment in some cases that the court indulges in some post hoe reasoning in granting leave.	Such a position does not seem confined to the Northern Territory.	In Matovsky (1989) 41 ACR 368 at 369, Gleeson CJ remarks:

"It	is the case, it must be acknowledged, that in practice in relation to appeals brought under the provision of the Criminal Appeal Act, it has been usual for this court to make little procedural distinction between leave to appeal and appeal to hear full argument on the merits of a matter before making any decision in respect of the application for leave to appeal."

He goes on to say:

"Whether that is a practice, that it will be appropriate for this court to continue, having regard to the very large backlog of cases, is one which will require further consideration at an appropriate time."

When the application comes before a single judge, the distinction between the application for leave to appeal and the appeal itself is plainer because the single judge has no power to determine any appeal.	He is necessarily confined to the application.

There seems little specific guidance on the

principles to be exercised when considering whether or not to grant leave to appeal in these circumstances.	Archbold (1988) 43rd Edition at paragraph 7-108, under the heading,
"Considerations in deciding whether to grant leave", quotes one case only and that is the case of R v Mealey and Sheridan (1975) Criminal Law Review at p154.	There the Court of
Appeal, Criminal Division, consisting of Lord Widgery LCJ, Parke and Forbes JJ, said:

"The prima facie test to be applied in deciding whether to grant leave to appeal, is whether the court feels the need to hear the prosecution on the merits of the matter."

That, with respect, would seem a little too circumscribed, unless by the use of the word "merits", their Lordships were intending to include questions of law.

In R v Broadway [1957] VLR 398, the Full Court of the Supreme Court of Victoria considered whether it could proceed to hear an application for leave to appeal against conviction or sentence in the absence of a report from the trial judge.	Such report should  normally have been before the court.	The report had not been furnished because of the illness of the trial judge.

Lowe Jin	delivering the ruling of the court said:

"The court's practice in the past has been, and will continue to be, not normally to deal with an application for leave to appeal against conviction

or sentence until a report has been furnished by the trial judge.		But there may be exceptional cases where to follow that practice might result in injustice to the applicant.		The record may disclose at least as an arguable case that the applicant has been wrongly convicted or excessively punished.	In such cases, unless the court deals with the application, even though the judge's report is not available, the applicant may suffer unmerited punishment.	Generally, a very slight delay will make the report available, but where, for instance, the trial judge has died without making a report, or where since the trial he is on leave out of the country and cannot readily be communicated with, or where he is so ill that he has not been able to make a report, and there is little likelihood that he can make a report without substantial delay, the court should, if it has the power, continue to proceed to deal with the application.	We think we have the power."

I do not think that any particular guidance can be found from other situations where leave is required in criminal proceedings, for example, leave to file an application out of time; although it is interesting that in such cases, particularised criteria are set out.	See
Green v R (1989) 95 FLR 301, R v O'Keefe [1979] VR pl.

Nor, I think, can an application for leave to appeal against sentence, instituted by the applicant upon whom sentence has been passed, be equated to an appeal by the Crown, where the courts have indicated that special considerations should apply and a stricter test is warranted. See Griffiths (1977) 137 CLR 293 at 310 per Barwick CJ and
Malveso (1989) 43 ACR 451 at 456 per Deane and McHugh JJ.

In my view, the reason why no more than very general statements can be made as to how the court should act in

considering whether to grant leave to appeal against sentence (other than Crown appeals) is that appellate courts have been reluctant to fetter discretion in these matters, realising that there are numerous circumstances which might occur in applications where the liberty of the subject is concerned.

Somewhat similar comments as to the width of discretion have been made by Gleeson CJ in the case already cited, that is Matovsky (1969) 41 ACR 368 at 371, although that was an application for leave to appeal from an interlocutory order albeit in criminal proceedings.

What his Honour says is this:

"I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s5F.	I do not intend to suggest that the only cases in which this court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised.	No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made.	Accordingly it is not appropriate to circumscribe the discretion which this court has in deciding whether to grant or withhold leave to appeal."

And similarly in the case of Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR
170 at 177 their Honours, dealing with the principles applying to an application for leave to appeal from an interlocutory order, discuss certain suggested tests but conclude:

"For ourselves we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.	The circumstances of different cases are infinitely various."

For my part therefore I think it is sufficient to adopt the broad remarks of Lowe Jin	Broadway, that "at least an arguable case" should be shown that the sentencing discretion of the trial judge has miscarried.	Another broad test might be that some possible though real element of injustice might be thought to occur if leave were refused.

As to the difference between "leave" and "special leave" see Hughes v The National Trustees [1978] VR 257 at 263, where Mcinerney J says:

"There is not in the case of Order 58 Rule lAB or in Order 64 Rule 6 any reference to special leave such as occurs in Order 58 Rule 16.		I would myself regard the latter phrase as imposing more stringent requirements on an applicant, namely that there must be something special in the circumstances, eg, that the case involves an important question or law, or that the question involved in the appeal is one of recurring significance and not one peculiar to the applicant and the respondent.	As the High Court said in Boyd v MacPherson (1919) 27 CLR 245 at 248;
(1919) 25 ALR 341: "the term 'special leave' connotes the necessity for making a prima facie case showing special circumstances".	It is clear however that whether the applicant seeks 'special leave' or merely 'leave' consideration alike of the question of possible injustice to the applicant if the application be refused and the judgment left undisturbed and of possible injustice to the respondent resulting from the disturbance of his seemingly vested interest in the maintenance of the judgment involves a consideration of the prospects of success of the appeal if the extension be granted."

Those remarks were adopted by the Full Court of Western Australia in Wing Luc Foods v Le Chu Lim [1989] WAR 358 at 361.

Similarly in Adams P. Brown and Male Fashions (supra) the concept of whether injustice may flow from the order was considered generally relevant.	At p177 their Honours say:

"It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration."

It seems therefore that one should take the broad view here and determine whether there is an arguable case that his Honour's sentencing discretion has miscarried or whether there appears any real element of injustice which might operate against the applicant if the leave is refused.	In other words, it seems to me that the purpose of the application for leave to appeal against sentence is to weed out the obvious cases where it is plain that the appeal cannot succeed, but not otherwise to deprive an applicant of his right of appeal.

Even if the individual judge hearing the application feels that on the probabilities the applicant will not succeed, if there is a real possibility that the applicant might suffer injustice by refusal, leave should be granted.

With those observations in mind I turn to the present application.	That is the application of the applicant Gordon Montague McDonald for leave to appeal against sentence. The applicant was sentenced on 15 May 1992.	He pleaded guilty to 10 counts of stealing, being thefts at various times from the Granite Gold Mines Social Club or the Granite Gold Mines, and he was sentenced to a total of 6.5 years imprisonment.
His Honour directed however that after he had served 18 months imprisonment he be released upon entering into a good behaviour bond in the sum of $1,000-00 or for the balance of the sentence.	Hi	Honour, having regard to different methods employed by the prisoner in the stealing, made certain counts concurrent and certain other counts cumulative.

The application for leave to appeal is based, I think, on three separate grounds.	The first is that a question of law or principle arises insofar as the court will be asked to reconsider the principles applied by	tin the case of R v Bird 56 NTR 17.

The second is that, having regard to the overall similarity of the offences, the different methods employed by the prisoner should not have been regarded as separate offences in the sense of rendering the various sentences cumulative; and the sentences should have been concurrent.
The final ground is that the total sentence in any event is manifestly excessive.

Dealing first with what I might call the ground of principle, Mr Stirk who appears for the applicant, submits that there has been some shift in principle in the way in which courts deal with offences involving cases where persons are in some form of fiduciary relationship.

He cites the case of Trenorden (unreported) a decision of the Full Court of the Supreme Court of Victoria, handed down on 8 June 1989.	That, he says, has some similarities to this case, although the amount of misappropriation was much less, I think a total of $15,500. Their Honours set aside the term of imprisonment imposed by the trial judge and released the applicant upon a bond.
However on a reading of that judgment it seems to me that it says nothing different in principle to what was said in Bird's case, and depends plainly upon its special facts and particularly the background history of the applicant.	This included her previous good character, the fact that she had suffered remorse, that she was only 25 years of age at the time of the commission of the offences, and was without prior convictions and with excellent prospects of rehabilitation.

Mr Stirk submits that some of those criteria can be applied here, and he particularly draws my attention to the remarks of the learned trial judge that the applicant would not be likely to offend again.

One can easily see distinctions between the facts in

this case and the facts in Trenorden, but in any event it does not seem to me that there was any difference of principle involved in the two cases.	So far as I understand Mr Stirk on this point he is suggesting that a more lenient approach should be taken towards defalcations where some breach of fiduciary relationship is concerned and that Trenorden is an instance of this trend.	I do not find it so, and it seems to me that there is really no such trend to be suggested.

Mr Stirk also relies on the case of Chaloner (1990)
49 ACR 370, a decision of the Court of Criminal Appeal of New South Wales.	That again was a case of defalcations by a person who was an assistant loans manager of a branch of the Commonwealth Bank.	He was sentenced to imprisonment for
18 months with a minimum term of 9 months and was ordered to pay a pecuniary penalty.	There was evidence of contrition and evidence that the applicant was financially troubled and concerned with the medical condition of family members and was himself suffering from stress and psychological burn out and had committed the offence on impulse.

The Court of Criminal Appeal did in fact grant leave to appeal and allowed the appeal and imposed a suspended sentence on terms.	But again it does not seem to me that any difference in principle between that case and Bird's case can be discovered, and indeed paragraph 2 of the head note states:

"In offences of this kind by persons in a position of trust a custodial sentence is normally required

in order to deter others." Then paragraph 3 goes on to say:
"Equally in such cases it is the duty of the sentencing judge to consider whether there are special circumstances which would warrant a non-custodial sentence."

And finally, in 4:

"In the special circumstance of this case a custodial sentence was not required."

I can see nothing in those principles which are put at variance by Bird's case, and again I regard Chaloner as merely an example of a different set of facts reaching a different result.	I would therefore refuse leave to appeal on the first ground suggested by counsel for the applicant.

However it appears to me that Mr Stirk is on stronger ground in his next two points.	Once again, I make it plain that it is not for me to decide the question.	This is not an appeal, but an application for leave.	But putting to myself the tests I have already outlined, it seems to me that it is at least an arguable question whether or not the learned trial judge should have considered that, the offences being all of the same kind, albeit committed by different methods, but being essentially a process whereby the employers of the applicant, or the social club to which he stood in a fiduciary relationship were robbed, the sentences should have been concurrent; or, possibly, if his Honour was justified in

imposing cumulative sentences, whether he should have imposed them to the degree where the total sentence was some
6.5 years.	As I say, it is not for me to say whether such an application would succeed.	But it is sufficient for me to consider that there is at least an arguable case and there may be injustice to the applicant if the argument were not aired before the Court of Criminal Appeal.

It almost inevitably follows that the third ground, namely, that the sentence was excessive, should also be permitted to go forward.	It may well be that the applicant would wish there to rely not only upon the question of concurrency, but also on a more general and broad approach that in all the circumstances, the sentence was excessive.
Once again, I am not for a moment saying that the applicant would succeed, but it does appear to me to be an arguable ground and it has at least this merit that some cases can no doubt be shown where in somewhat similar circumstances, an accused received a somewhat lighter sentence.	Of course, it may be that, similarly, cases can be shown where the accused received a somewhat heavier sentence and it may well be that the Court of Criminal Appeal, applying the classical tests, will come to the conclusion that it sees no basis for. disturbing the discretion of the trial judge.	But again, those are not matters for me to consider once I have formed the view that there is at least an arguable case to put before the Court of Criminal Appeal and not a case which would obviously be devoid of merit or hope from its outset.

I would therefore grant leave to appeal on these two grounds only:

That the learned trial judge, in making some of the sentences cumulative placed undue weight on the methods employed by the applicant to steal the total sum of $80,000 and should have made the sentences concurrent.

That in all the circumstances the sentence was excessive.