Carbone v R [1989] HCA 57; (1989) 89 ALR 45; (1989) 64 ALJR 51 (5 December 1989)

HIGH COURT OF AUSTRALIA

JOSEPH CARBONE v. THE QUEEN
F.C. 89/055

High Court of Australia
Mason C.J.(1), Deane(1), Dawson(1), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

HEARING

Canberra
5:12:1989

DECISION

MASON C.J., DEANE, DAWSON, GAUDRON AND McHUGH JJ. The applicant was convicted by a jury in the Supreme Court of South Australia of producing a crop of cannabis contrary to s.32(1)(a) of the Controlled Substances Act 1984 (S.A.). He was also convicted, after a plea of guilty, of taking part in the sale of cannabis contrary to s.32(1)(d) of that Act. He was sentenced by the learned trial judge (Olsson J.) to imprisonment for five years for the crime of producing cannabis and to imprisonment for two and one-half years for the crime of taking part in the sale of cannabis. His Honour ordered that the two sentences be served concurrently and fixed a non-parole period of three years.

2. The applicant appealed against his conviction and sought leave to appeal against his sentence to the South Australian Court of Criminal Appeal. The Attorney-General sought leave to appeal against the sentence on the ground that it was manifestly inadequate. The applicant's appeal against conviction was dismissed. The Court also ordered that the applicant's appeal against sentence be dismissed but made an order upholding the Attorney-General's appeal against sentence and increased the sentence for the crime of producing cannabis to one of imprisonment for seven years. The sentence of imprisonment for two and one-half years for the crime of taking part in the sale of cannabis was allowed to stand and remain concurrent. The Court of Criminal Appeal fixed a non-parole period of four years and nine months. Their Honours made it clear that, in deciding that the circumstances justified the imposition of an increased sentence upon a prosecution appeal, they had been influenced by the "overriding" requirement of "proportionality of treatment" of the applicant and two co-offenders, Malvaso and Sergi, whose sentences were also under challenge in proceedings which were heard together with those challenging the applicant's sentence.

3. The applicant applied for special leave to appeal to this Court from the orders of the Court of Criminal Appeal dismissing his appeal against conviction and increasing the sentence imposed upon him by the learned trial judge. In the course of the hearing of the application, the Court, for the reasons then given, refused special leave to appeal except in so far as the proposed appeal would be against the order of the Court of Criminal Appeal increasing the applicant's sentence and non-parole period. It is now necessary to deal with that aspect of the application.

4. The reasons which led this Court to set aside the Court of Criminal Appeal's order increasing the sentence in Malvaso v. The Queen (unreported, 5 December 1989) are also applicable to the present case. They lead to the conclusion that the order of the Court of Criminal Appeal increasing the applicant's sentence for the crime of producing cannabis and the length of his non-parole period cannot be allowed to stand. As in Malvaso, it is common ground that leave has never been granted to the Attorney-General to appeal against the sentence imposed upon the applicant by Olsson J. That being so, the Court of Criminal Appeal never proceeded beyond the leave to appeal stage on the proposed appeal by the Attorney-General and the condition precedent to a valid appeal against sentence by the Attorney-General (see Criminal Law Consolidation Act 1935 (S.A.), s.352(2)) was never satisfied. As in Malvaso, the Court of Criminal Appeal's order increasing the sentence and non-parole period were, in any event, vitiated by an approach to the operation of s.302 of the Criminal Law Consolidation Act which was subsequently held by this Court, in Hoare v. The Queen [1989] HCA 33; (1989) 63 ALJR 505; 86 ALR 361, to have been mistaken. Again as in Malvaso, once account is taken of the fact that the Court of Criminal Appeal's view of the operation of s.302 is likely to have led their Honours to substitute a "substantially heavier" sentence than that which they would otherwise have thought appropriate in all the circumstances (see Reg. v. Dube and Knowles (1987) 46 SASR 118, at p 124), it cannot be said that it is clear beyond argument that the case is one in which a grant to the Attorney General of leave to appeal against sentence was justified.

5. It follows that special leave to appeal should be granted, the appeal should be allowed and the orders of the Court of Criminal Appeal should be set aside as having been made on what was (in the absence of leave) an incompetent appeal and as having been, in any event, vitiated by a mistaken construction of s.302 of the Criminal Law Consolidation Act. In conformity with the approach favoured by the majority of the Court in Malvaso, the question whether leave should be granted at this stage to the Attorney General to appeal to the Court of Criminal Appeal against sentence should be left for the decision of that Court. Accordingly, there should be an order remitting the matter to the Court of Criminal Appeal.

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal and remit the matter to that Court for determination in accordance with the judgment of this Court.