Read v The Queen H4/1994 [1994] HCATrans 144 (6 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H4 of 1994

B e t w e e n -

MARK BRANDON READ

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave to

appeal

MASON CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 10.53 AM

Copyright in the High Court of Australia

MR W.M. HODGMAN, QC: May it please Your Honours, I appear for the applicant. (instructed by Anita Betts)

MR D.J. BUGG, QC: If Your Honours please, I appear with my learned friend, MR. L.E. NORRIS, for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

MASON CJ: Yes, Mr Hodgman.

MR HODGMAN: May it please Your Honours, save only the death sentence, now mercifully repealed, it is respectfully submitted that there is no more dread sentence imposed in the few remaining States in Australia, that a person be detained until His Excellency, or Her Excellency, the Governor's pleasure is known. This application raises matters of very great public importance and, indeed, the Full Court of Tasmania, sitting as the Court of Criminal Appeal, so ruled, and granted leave to appeal and then dismissed the appeal.

May it please Your Honours, I can think of no better starting point than what the High Court said in Chester's case back in 1988:

The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained.

I am reading from page 17 of the application book. On 6 December 1988 the High Court of Australia, comprising Your Honour the Chief Justice and Justices Brennan, Deane, Toohey and Gaudron, delivered the reserve decision in Chester, and Chester has now come before the Supreme Court of Tasmania in two separate cases.

In the case of Jamie Gregory McCrossen, it came before His Honour the Chief Justice of Tasmania, Sir Guy Green, and it is my respectful submission that His Honour correctly interpreted and correctly applied Chester in accordance with the decision of this Court. The second occasion it came before the Supreme Court of Tasmania sitting as the Court of Criminal Appeal is in the instant case of Mark Brandon Read.

I preface my submissions by referring to what happened before His Honour Mr Justice Cox, and the nonchalant, almost laconic, way in which the application for a declaration against Mr Read was made.

TOOHEY J: Mr Hodgman, just before you do that, could I just ask you a question about paragraph 4 of the summary of argument, which is on page 6, and it says that:

The Applicant had only one previous conviction for a crime involving an element of violence, namely a conviction in the Supreme Court of Victoria on 1st June 1978 for abduction.

How does that square with the information that appears on page 33? It seems to point to more than one conviction.

MR HODGMAN: No, Your Honour.

TOOHEY J: Does it not?

MR HODGMAN: Your Honour, His Honour Mr Justice Cox and, indeed, the Full Court dealt with this matter on the basis that Mr Read had one prior conviction for a crime. I will come to a passage where a comment is made; some of these matters may have been indictable in the State of Tasmania, but were not in the State of Victoria. He had but one conviction for a crime and that was 15 years before the declaration was made, and in respect to which he had served a sentence of imprisonment in the State of Victoria, having been convicted on his own plea in the Supreme Court of Victoria of the crime of abduction of a County Court judge.

TOOHEY J: But what of the offence of causing grievous bodily harm, apparently by shooting someone in the leg with a shotgun? Is that not a crime?

MR HODGMAN: Not convicted of a crime, Your Honour, no.

TOOHEY J: I see. And the stabbing of a fellow prisoner is presumably, what, dealt with under prison regulations, or at least the summary proceedings - - -

MR HODGMAN: A summary assault. My learned friend will correct me if I am wrong. I did not appear in the hearing before His Honour Mr Justice Cox, but the transcript and, indeed His Honour, makes it quite clear, the only crime of which he was satisfied and upon which he made this declaration, was a crime 15 years earlier, and whatever one might think about the realities of it, Your Honour, it is my respectful submission that the sentence is of such a nature that, as this honourable Court said in Chester, you have got to be absolutely certain that all the statutory provisions have been complied with before you make an order whereby a citizen of Australia becomes detained at the executive discretion of a State Government.

Indeed, if I can just come briefly, you will see how this arose. It was before a lot this was administered and the then accused, now applicant, Mr Read, was put up, and my learned friend, Mr Bugg, had been talking about about the effective parole breach in the State of Victoria and I will just read the passage very briefly:

MR BUGG: Yes, normally this Court would.

HIS HONOUR -

Mr Justice Cox -

What consequences there may be in Victoria as a result of this conviction is a matter for the Victorian authorities, I would have thought.

MR BUGG: Yes.

HIS HONOUR: Is it your submission that I should make a formal declaration that he is a dangerous criminal?

MR BUGG: Yes, it is, Your Honour.

HIS HONOUR: And that he be detained at the Governor's pleasure?

MR BUGG: Yes;

HIS HONOUR: And you make that as a submission?

MR BUGG: I do make that as a submission, Your Honour. The light of the admissions he made and in light of the circumstances of the commission of this offence as outlined in the primary case.

Your Honours, it is respectfully submitted that the Full Court, comprising as it was the Court of Criminal Appeal, either did not appreciate, or mistakenly believed it was applying what the High Court of Australia had said in Chester when it dismissed the application granting leave to appeal, and then dismissing the appeal. And reading, if I may, from the application book on page 34:

Counsel for the applicant submitted that a declaration under s392 was inappropriate in the case of a man who psychiatrists considered to be charming and intelligent, with no psychiatric disorder and with no real tendency to impulsive violent behaviour. No doubt the existence of a mental disorder making a convicted person prone to commit random and impulsive acts of violence would be a most material factor in assessing whether to make a declaration.

And then it goes on to say, effectively, it did not help. On page 35, in the middle of the page, Your Honours will see the passage in which the Full Court, as the Court of Criminal Appeal, deals with Chester.

The second ground of the application asserts that the material before the learned judge did not clearly establish that the applicant was a "constant danger to the community". Those words were taken from Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 where at 619 the High Court said:

"The stark and extraordinary nature of punishment by way of indeterminate detention - - -

MASON CJ: We did get the message the first time you read it, Mr Hodgman.

MR HODGMAN: Your Honour, thank you. I read on, jumping that paragraph:

Counsel for the applicant submitted that this Court is bound to apply what the High Court said in Chester, but clearly that is not so -

this is the joint judgment of the Court of Criminal Appeal -

for that case concerned provisions of the Criminal Code of Western Australia which were substantially different -

I will come back to that -

Under s392(1) a sentencing judge may exercise the discretion to declare a person who has been convicted as prescribed a dangerous criminal provided that "the judge is of the opinion that such a declaration is warranted for the protection of the public" -

and I interpolate, and in the instant case that means the public of Tasmania, the State in which the sentence is being imposed -

That is the test established - - -

MASON CJ: Why do you emphasise the State of Tasmania?

MR HODGMAN: Because, in this case, Your Honour, this man who has been declared to be a dangerous criminal, to be detained indefinitely, had never, apart from the instant matter in relation to which Mr Justice Cox said the appropriate finite sentence would have been six years for shooting the man, Collins, had never committed any crime in Tasmania; had not been in Tasmania. Indeed, it was clear, I submit, on all the material before His Honour, that his problems had been here in the State of Victoria, and I am putting it to the Court - - -

MASON CJ: Meaning he is a Jekyll and Hyde personality?

MR HODGMAN: No, but a person's standing may well improve by emigrating from Victoria back to the State which colonised Victoria, Your Honour, and maybe he came back, or went to Tasmania - his father, I think, was a retired warrant officer in the army and was residing in Tasmania, but I am just - - -

TOOHEY J: It strikes me as a very odd argument, Mr Hodgman, to say that a person can have a list of violent offences, convictions for crime in one State, and because that person crosses the border and a short time afterwards commits only one offence in another State, that somehow it is only the public of that second State that one needs to be concerned with, or that, if one is, you exclude what happened in the other State.

MR HODGMAN: I take what Your Honour is saying. That is not the main argument, it was just a point that I was making because, interestingly, there are extra-territorial elements in this case: the crime which was the one prior crime that you have to have before you make the declaration, had not been committed in Tasmania; it was a crime committed in the State of Victoria and, just simply, that persons do sometimes go to another place, and get away from an environment which has not been - but it is not my main argument, Your Honours. My main argument is - - -

TOOHEY J: No, I did not think it would be.

MR HODGMAN: No, it is not.

MASON CJ: I was beginning to think it was, Mr Hodgman.

MR HODGMAN: Your Honour, His Honour Justice Toohey entrances me and what I wanted to say is that the Full Court said it would not apply Chester because the wording of the Western Australian Code and the Tasmanian Code were different.

MASON CJ: Well, the wording is different, is it not?

MR HODGMAN: Yes, but with - - -

MASON CJ: No constant in the Tasmanian Code.

MR HODGMAN: No, Your Honour, I absolutely accept that but, as His Honour the Chief Justice - and I will deal with his comments, if I may, in relation to McCrossen - said, "Fundamental principles are nevertheless appropriate in both cases." I will just read on, if I may, and complete the passage from the Court of Criminal Appeal. They then went on to say:

That is the test established by Parliament as the prerequisite for the exercise of the discretion in this State. However we agree with the dicta of the Chief Justice in R v McCrossen (1991) Tas R 1 at 7 that insofar as the High Court's observations in Chester deal with the general considerations which should inform the exercise of the discretion they are application to s392.

The High Court said it is firmly established that the common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender. But the indeterminate sentencing provisions of s392 provide an exception to the common law principle and empower the criminal courts to in fact order preventive detention. In Chester the High Court at 619 referred to -

and I will not read it again, Your Honour, but I do rely on it, and then the quote -

At 618 the court said that the power to direct preventive detention should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm.

In this State these considerations have clearly played a significant part to the extent that it has only been in exceptional cases that a declaration has been made that a convicted person is a dangerous criminal. According to counsel there are currently only two prisoners, apart from the applicant, who are the subject of such a declaration.

Your Honours, the effect of the declaration is that it could be life; it could be 25 years; it could be 30 years. In relation to this matter His Honour Mr Justice Cox said, "Were it not for the fact that I am making the declaration, the appropriate sentence, taking into account all your record, is six years." And, as Your Honours may have observed, it was argued that if there is any argument at all for this dreadful sentence, that it may be appropriate, perhaps in a case of a longer sentence where the person has committed a number of murders and may be sentenced to 25 years gaol, that even at that point of time that the indeterminate provisions should only then come into effect.

It is totally disproportionate to order a man be detained at the executive's discretion, for a crime which the judge said to him, deserved six years. And I do not need to hypothecate as to how executive detention, as such, is something far, far inferior to judicial detention. One could even contemplate governments going to an election and saying, "Law and order, we will detain this man further."

Now, His Honour the Chief Justice on page 6 of McCrossen made comments which I respectfully wish to adopt as part of my submissions. There was a problem about the reference for this, Your Honours, but if Your Honours have the case, if not, I have brought additional copies this morning, of McCrossen.

MASON CJ: We have it, or I have it.

MR HODGMAN: There was some mix-up between my instructor and the Court.

MASON CJ: No, I think we have it.

MR HODGMAN: I thank Your Honours. On page 6, at the bottom of the page:

In Chester v The Queen the High Court made some observations about the way in which a judge should approach the exercise of a discretion similar to that which is conferred by the Criminal Code, s392. Those observations must be read in the light of the fact that as 392 contains more detailed provisions about the matters about which the court must be satisfied -

and I concede that is correct -

before it may make an order than did the legislation which was under consideration in that case -

that being Chester's case -

However insofar as the court's observations deal with the general considerations which should inform the exercise of the discretion they are applicable to s392. The court said that the power to impose such a sentence "should be confined to very exceptional cases" and that the sentencing judge must be "clearly satisfied by cogent evidence that the convicted person -

Now, I am just pausing there: all that His Honour Mr Justice Cox said in making the declaration, not that "I am clearly satisfied by cogent evidence", His Honour said, "The indications are that you will offend again", and that, I submit, with respect, falls far, far short of what the High Court said in Chester - - -

TOOHEY J: Mr Hodgman, to tie in the language of the Tasmanian provision with Chester, I take it, your argument has to be, or is, that a declaration is not warranted for the protection of the public - that is the language of the Tasmanian provision - unless there is evidence that the person is a constant danger to the community.

MR HODGMAN: Not quite - - -

TOOHEY J: Not that?

MR HODGMAN: - - - as far, but down that track, Your Honour, yes. Your Honour, it is such a serious matter that where you have - I am now going to be out of time, but if I just refer Your Honours, to what His Honour the Chief Justice said. He correctly, in my submission, interpreted and applied Chester. He said that:

The policy considerations which the court emphasised were:

1. That it is "firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender".

2. "The start and extraordinary -

I will not read that again, and -

3. The fact that the term of that indeterminate detention "is terminable by the executive, not by judicial, decision".

Your Honours, the passage for Mr Justice Cox's comments, when sentencing, as I said, just simply indicated that, "The indications are that you are likely to offend again." Now, whether His Honour was careless, with respect, with his language, or whether it was what he was actually thinking that he was applying was the law, that falls far short of "satisfied by cogent evidence".

I put it to the High Court, I put it to Your Honours, with respect, this is such an important matter. We have a relic of the past, the indeterminate sentence, the key, a person detained by executive whim in the Commonwealth of Australia, that it is my respectful submission that the Court of Criminal Appeal did not understand and did not properly apply what this honourable Court had said, and said very clearly in Chester. His Honour the Chief Justice did, I respectfully submit, get it right in what he said in imposing the penalty in the case of McCrossen.

Finally, Your Honours, the reference to the comment of His Honour Mr Justice Cox is on page 4 of the application book in the second-last paragraph, where His Honour said:

the indications are that he is likely to offend in a violent way again.

It is my respectful submission this order should never have been made; this declaration should never have been made; that His Honour Mr Justice Cox and the Court of Criminal Appeal failed to apply what this Court, the highest court in the land, laid down in Chester, and it is my respectful submission that leave should be granted. Special leave should be granted to the applicant in respect of these orders. If the Court pleases.

MASON CJ: Yes, Mr Bugg.

MR BUGG: Your Honours, the questions which the applicant raises for consideration by way of the application for special leave are, firstly, whether or not the principles established by this Court in Chester's case should have universal effect throughout the country and in respect to that particular issue, the respondent has, in the outline of argument, submitted that, in fact, there is a significant distinction between section 662 of the Western Australian Criminal Code, which was the object of this Court's consideration in Chester's case, and section 392 of the Tasmanian Criminal Code.

My learned friend may have been enthused by that Freudian slip but, in any event, the Court in Chester drew a distinction, in fact, between the habitual criminal section in the Western Australia Criminal Code[cedilla] section 661, and, in examining the reason for such a section as 662, concluded much as it did in Veen [No 2] that in determining an appropriate sentence for a section such as 662, where clearly the protection of the public was in mind, then it would be inappropriate and offend the principle of proportionality if a sentence was imposed purely and simply for the protection of the public, and not as a consideration of the legitimate exercise of casting a correct sentence, that is: what are the accused antecedents? What is the nature of the crime? What sentence should be imposed which takes into account considerations of the protection of the public? And then, in stating what an appropriate consideration should be for the application of a section such as 662, made the statement which this Court has heard, and I will not repeat, contained in the judgment in Chester's case.

That must be drawn in sharp distinction from the section under the Tasmanian Criminal Code, which is not an habitual criminal section; is not a section akin to section 662, but is a dangerous criminal section, where, quite plainly, the intention of Parliament was to provide the sentencing judge in the Criminal Court of Tasmania with a discretion to impose an indeterminate sentence where, having considered the factors which the legislators have directed the judge to take into account that, for the protection of the public, such a declaration is required.

TOOHEY J: It is hardly a discretion, is it? I mean, the judge would have to reach the opinion, consistently with the other provisions of the section, that a declaration was warranted for the protection of the public?

MR BUGG: Yes.

TOOHEY J: What factors do you suggest the judge should take into account, Mr Bugg? I appreciate they are laid out in this subsection but they end up "any other matter that the judge considers relevant".

MR BUGG: Yes, I know. Your Honour, in relation to that, certainly an attempt is made by the applicant to distinguish between those convictions which the applicant has, which were imposed and, it appears, sentences imposed in the magistrates court in the State, as opposed to any conviction on indictment. But, in fact, we would submit that his antecedents would include the whole range of those matters, and that is a specific fact to which direction is given to under the subsection. But, in particular, we would say that it was a correct consideration of all these matters for the Court to take into account those specific matters which Your Honour was obviously adverting to when you referred my learned friend to the passage contained at page 33 of the application book, where, in a chronological order the court sets out the prior convictions and the sentences imposed in relation to those matters suffered by the applicant.

TOOHEY J: Does there have to be demonstrated a risk of re-offending?

MR BUGG: In this particular instance we would say there would not have to be but there would obviously have to be some conclusion that there was a danger to the public. Now, whether you say that is a predictable risk, a guaranteed risk or whether it is a certainty, and that takes it beyond, obviously, the question of a risk. That is addressed by the Court of Criminal Appeal and we say that that is a correct consideration of the issue.

But, here, what the court was considering was a person who, at the age of 38 years, had spent 18 of his 20 adult years in prison and, in the two years he had been out of prison, with the exception - if one excludes the stabbing of the prisoner in the neck with the scissors, all the other crimes of violence that are detailed on page 33 of the application book were committed in the short space of two years; one of them being the abduction of a County Court judge in this State at the point of a shotgun, for which he received a sentence of 12 years.

Now, you will see, Your Honours, that he was released on parole in November 1991, and came to Tasmania. By February 1992 he was conducting himself as outlined at the top of page 34 of the application book, and that is he was being chauffeur-driven around the northern city of Tasmania, Launceston, in a vehicle which contained, at all times, a sawn-off .410 shotgun, a Beretta pistol, a 357 Magnum revolver and a pump-action shot gun, which was displayed on the parcel rack at the back of the car. It was in that car that he turned around, on the verdict of the jury, from the front seat of the vehicle, and shot his companion on a return journey from a hotel where they had been to have a couple of drinks - shot him in the stomach and then delivered him to the hospital and drove to the casino to continue gambling.

The position really is that on all the evidence before the trial judge, taking into account the antecedents and, particularly, the comment from his psychiatrist, saying, "He is not suffering from a psychiatric disorder", in fact, what was observed are controlled acts of violence from this man - - -

TOOHEY J: I must say, I found that a bit puzzling; the reference to impulsive behaviour. It seems to exclude the person who embarks on a series of sexual offences, for instance, according to a predetermined plan, is in a different category from the person who offends impulsively. It just did not seem to me to be a particularly relevant distinction to make in the present context.

MR BUGG: Well, I suppose it was relevant to the - - -

TOOHEY J: That does not go one way or another in this particular argument.

MR BUGG: But, in terms of the factors which the sentencing judge is required to take into account, those matters by themselves, we would say, provided ample cogent evidence, not only that this person was of a violent predisposition, but is of a violent predisposition, and still, within a short space of a parole release, after the earlier breach of parole - he was only out on parole a month before he went back in approximately two years before this incident - he was back out, driving around in the circumstances outlined by the Court of Criminal Appeal at the top of page 34 of the application book.

Your Honours, in response to the matters which are addressed as special leave points or questions, we say firstly, there was ample cogent evidence, as detailed by the Court of Criminal Appeal in those passages from the judgment referred to, not only in the response, but also in pages 33, 34, which I have just addressed to Your Honours, and I will not read them; there is a litany of crimes of violence, of excessive violence, and then you have the question of whether or not a test, identical to that posited by this Court in Chester, should be visited upon this particular provision of the Criminal Code. The Court of Criminal Appeal drew the distinction between the provisions of section 392 and section 662 in the Western Australia Criminal Code and, therefore, the distinction between a direction from this Court and, rather, as adopted by the Chief Justice in McCrossen's case, some issues of guidance as to the consideration of the sentencing judge in considering section 392.

I have no other matters to raise in this matter, Your Honour.

MASON CJ: Thank you, Mr Bugg. Yes, Mr Hodgman.

MR HODGMAN: Your Honours, I will be brief. The only evidence of any expert nature as to how this man's behaviour was likely to be in the future was the evidence of Dr Ian Sale, a psychiatrist, who said, on page 15 of the application book that he had gained the impression that Read was, in fact, mellowing in recent years. Your Honours will find it in the second-last paragraph:

An impression is gained of some mellowing in recent years.

The matters about driving round Launceston in a car were not matters with respect to which he was charged or convicted and, with great respect, could hardly be used to indicate some sort of threat to the public. The wording is quite clear, and it is set out in McCrossen.

There was no evidence, Your Honours, I repeat, no cogent evidence, upon which the court could have been satisfied that this person should be detained for the protection of the Tasmanian public. There was no suggestion of any indications of any commission of future matters; there was nothing. Now, if I can come back, with respect, to the comparison with the Western Australia Code in Chester; true it is a shorter provision; the wording simply being:

When any person is convicted of any indictable offence.....the court.....may, if it thinks fit, having regard to the antecedents, character, age, health, or mental condition of the person convicted, the nature of the offence of any special circumstances of the case -

(a) direct that on the expiration of the term of imprisonment, then imposed upon him he be detained during the Governor's pleasure -

The reference to "constant" my learned friend did not deal with, and I do not put it as high as that for the Tasmanian Code, but I do put it to Your Honours that, before you make a declaration which could keep a man in prison for 30 years, you have got to have some cogent evidence on which you can be judicially satisfied that his detention is warranted for the protection of the public.

I make the point in conclusion, the only prior crime for which he had been ever convicted was 15 years earlier. The material before His Honour Mr Justice Cox showed in relation to that matter he had been sentenced to 12 years gaol, that he had heard that the judge, Judge Martin, had suffered a cardiac arrest; he had finished up writing to the judge, the judge, in fact, wrote back to him and forgave him. Surely persons are not to be punished again and again when they have served their debt.

Secondly, in relation to the matters about which my friend referred, it was said in the Court of Criminal Appeal, and I submit it was correctly said, that actually people in prison are still part of the community, and for what it is worth, for 11 years, he engaged in no acts of violence while in prison, bar the one instant where he stabbed another prisoner with a pair of scissors and received three months. Your Honours, this is, it is respectfully submitted, over the top. There was no cogent evidence. The Court of Criminal Appeal did not apply Chester. The High Court of Australia is the Court to make it quite clear to the States and, indeed, the Territory, that persons are not to be detained at executive whim in this country, lightly. If the Court pleases.

MASON CJ: The Court is not persuaded that the decisions of the courts below reflect any error of principle. The application for special leave is therefore refused.

AT 11.32 AM THE MATTER WAS ADJOURNED SINE DIE