Garforth v The Queen S98/1994 [1994] HCATrans 149 (7 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S98 of 1994

B e t w e e n -

ANDREW PETER GARFORTH

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 9.32 AM

Copyright in the High Court of Australia

MR M. L. SIDES, QC: May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant. (instructed by T. Murphy, Legal Services, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC: May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J: Yes, Mr Sides.

MR SIDES: Thank you, Your Honours. This is an application that raises the question of the principles applicable to the imposition of the maximum penalty for murder under section 19A of the Crimes Act 1989 in New South Wales. That maximum penalty is penal servitude for life. Such a sentence means that the term of imprisonment is for the natural life of the prisoner. It does not permit of release to parole early under section 19A(2); nor does it permit of the prisoner being released if he or she is dying or in other exceptional circumstances under section 25A of the Sentencing Act, see subsection (6).

All that remains for such prisoners for early release is the royal prerogative of mercy. This sets such a sentence apart from all other sentences, whether they be determinate sentences, which carry a possibility of a release to parole if the court so orders, and life sentences in New South Wales before 19A, and in other jurisdictions in this country. Before section 19A, life sentences which may have been for murder or other offences such as manslaughter had the possibility of release to licence under section 463 of the Crimes Act. That section was repealed when 19A was introduced and people serving life sentences other than those imposed under 19A can now apply to the court to have their sentences redetermined under section 13A of the Sentencing Act, which is the subject of the application next in Your Honours' lists.

The question that raises itself, we would submit, is whether special rules should be developed by the Court as a guide for the courts approaching the question of how they should approach the issue of imposing the maximum penalty under 19A. Is it sufficient that the case fall into the worst type, or should there be some other safeguards as has been developed in the United States in relation to the death penalty? Examples of safeguards might be that there needs to be a finding on cogent evidence that the offender remains a danger to the community for the rest of his or her life, or perhaps that there be a finding that the offender is never likely to be rehabilitated.

It is submitted that this is an appropriate case for these issues to be resolved for a number of reasons. Firstly, this is the first life sentence under section 19A to be considered by the Court of Criminal Appeal in New South Wales. There has been only one other considered subsequently where the appeal was allowed and the murder in that case was of quite a different nature, being a crime of passion. This case involved a relatively young offender - he was 29 at the time of the offence - and the sentencing judge estimated that he had a life expectancy of 42 years. There was no finding that this applicant would remain dangerous for the rest of his life, there was no finding that he was beyond reform and this was not a case involving mass murder.

All the other cases in New South Wales where life has been imposed under section 19A can be distinguished. Three of them involved men who were mass murderers, and two of those - Baker and Steele - have yet to be heard in the Court of Criminal Appeal. Two of those men were significantly older than this applicant - one 46, the other 57. Steele was in his early twenties. The other case which is not to proceed before the Court of Criminal Appeal was a case of a single murderer, being Cameron. Again, he was older than this applicant, being 37 and, significantly, he had killed twice previously and, as Your Honours will see from the remarks of the sentencing judge at page 13 of the application book, Cameron was assessed to be dangerous for the rest of his life.

TOOHEY J: But there are provisions - I am not sure in New South Wales, Mr Sides, but in some States - that deal expressly with the situation of someone who is a danger to the public and which provide for an indeterminate sentence.

MR SIDES: Yes, there are, but that is a matter that is separate from the sentencing process. So far as habitual criminals are concerned, in New South Wales there is only provision for determinate sentences, not life. We do not have, as some of the other States have, provision where there is a finding that an offender will be unable to control his or her sexual urges. Their sentence can be extended in some jurisdictions - there is provision for the Governor's pleasure. We do not have that in New South Wales. There is now a piece of legislation that has recently been introduced that is applicable to one individual and one individual only that if a finding were made on a civil burden that if he were dangerous he could be detained for up to two years. And then there would have to be subsequent applications.

TOOHEY J: Are you saying this is the only provision which permits of an indefinite sentence?

MR SIDES: There is also a provision in the Drugs Act for very serious drug offences for a maximum penalty of life similar to that under section 19A. To my knowledge no such sentence has yet to be imposed. But the principles may well be the same, although, bearing in mind the nature of drug offences, particularly supply offences, different principles may have to be applied in such cases.

BRENNAN J: What is the error in the judgment of the Court of Criminal Appeal which should enliven the jurisdiction of this Court?

MR SIDES: Effectively the error is that the Court found that the case fell into the worst type of case, and that of itself was sufficient to attract the maximum penalty.

BRENNAN J: To attract or to make it a case in which it is appropriate to exercise a sentencing discretion?

MR SIDES: Their finding was that there was no error in the exercise of the sentencing discretion.

BRENNAN J: Then that would be the relevant question, would it not?

MR SIDES: Yes, and we would respectfully submit that there really should be more than merely a finding of the case falling into the "worst type". Indeterminate sentences have always been frowned upon because of the uncertainty attaching to them, even in those circumstances where there can be early release, as there was in New South Wales previously, where people could be released to licence. The problem with them was that people never knew how long they would be in custody and there was, by the mere imposition of the licence, no encouragement for rehabilitation. In New South Wales under the system operating before 19A, the licensing system where people were released to licence who were serving life were encouraged to rehabilitate themselves.

Indeed, those people who are now coming before the courts under section 13A to have their life sentences redetermined, have demonstrated a significant degree of rehabilitation. Indeed, in some cases people who 10 to 15 years earlier had been regarded as very dangerous, never likely to be redeemed, have made significant steps in relation to rehabilitation. In relation to a sentence imposed under section 19A, there is no encouragement for rehabilitation, there is no room in the court's sentence to reflect rehabilitation. In this case the judge could not make a finding that he would never be reformed or rehabilitated.

BRENNAN J: Mr Sides, the difficulty I am having is to formulate within an articulated principle the kinds of concepts that you are trying to express. If you cannot point to any error in the decision of the Court of Criminal Appeal, how is it open to this Court to intervene?

MR SIDES: We would say that the first matter was the court below considered it was a worst case.

BRENNAN J: Or it was in the worst category of case?

MR SIDES: Yes.

BRENNAN J: Do you dispute that?

MR SIDES: I do not think I can dispute that, Your Honours, accepting that one can take into account the surrounding circumstances. But the judge at first instance approached the matter on the basis that if it fell into the worst category, life would be the appropriate sentence in the exercise of the discretion, unless there were powerful mitigating circumstances. The court did not find that there was any error in that approach, but we would respectfully submit that one of the errors was the failure to consider separately the question of the head sentence and the question of whether there should be a non-parole period, or, indeed a minimum term and the considerations may well be different.

But in considering the question of the head sentence, because of the nature of the penalty which carries with it no opportunity ever for release to parole, no opportunity for reform, then we would respectfully submit there should be other safeguards and other considerations.

BRENNAN J: What other safeguards?

MR SIDES: Firstly, we would respectfully submit there should be a finding on cogent evidence that the offender remain a danger for the rest of his or her life. And secondly, that there should be a finding that the offender will never be rehabilitated.

BRENNAN J: That seems to me to raise two problems. One is the virtual impossibility of establishing now the events of the future. The second is that it eliminates what might be the overwhelming consideration in some cases, namely, retribution.

MR SIDES: Retribution, we would respectfully submit, can be reflected in long determinate sentences and the court simply glossed over that aspect. It is at page 31. The court dealt with the submission dealing with lengthy determinate sentences and they simply said:

This occurs not infrequently in other jurisdictions but has never found favour in this country.

We would respectfully submit that to dismiss that submission in that way without consideration in light of section 19A and the implications of a life sentence which does not provide for early release was a further error. The longest determinate sentence imposed for murder under 19A has been a sentence of 26 years consisting of a minimum term of 20 and an additional term of six. The longest determinate sentence imposed for murder in combination with other offences has been a sentence of 30 years made up of a minimum term of 26, including pre-sentence custody, and an additional term of four years. That was a case involving a sexual assault and a drowning. In that case the minimum term for the murder was 16 years and for the sexual assaults a further 10.

So that particularly in relation to an offender as young as this with a life expectancy of 42 years, and bearing in mind that he was on protection, and if one accepts what was said by Lord Lane in Davis' case that a person on protection may serve a period of term equivalent to half as long or even twice as long as that of a normal offender, this sentence really equates to a sentence somewhere in the order of 60 years.

TOOHEY J: But one of the difficulties facing the applicant was that there was no psychiatric evidence from which the court could perhaps draw some conclusion as to the future of the applicant.

MR SIDES: Yes. The court dealt with that at page 36 of the application book, and we would submit dealt with it to some extent erroneously. Having referred to the absence of psychiatric material at line 15:

There are some cases in which the circumstances of an offence on their own suggest the possibility of dangerousness. This is one of them. The nature of the applicant's actions leads to a question whether he might act similarly in the future. In the present state of the evidence, no finding adverse to him can be made on this matter. However, by the same token, he cannot obtain a favourable finding on the issue.

In effect, the evidence was neutral, there being no positive evidence, the nature of the offence aside, and we would respectfully submit to make a determination of dangerousness purely upon the offence for an offender who had no prior history of violence is a very dangerous exercise upon which to embark. It would be quite a different matter if this offender had a prior history of dangerousness, but he does not. There is no history of violence - he was a petty thief, in fact.

DAWSON J: Mr Sides, you are very much getting into the merits here. It has been reiterated time and time again that mere excessiveness of sentence is not a ground for granting special leave. You have to demonstrate some gross violation of sentencing principles.

MR SIDES: One of the errors that I have highlighted is the approach of the court in not considering lengthy determinate sentences. There seems to be a cut-off point somewhere in the order of 25, 26 years for single murders and then there is a jump to life sentences. The Court has said it is not going to contemplate - - -

DAWSON J: That is the gross violation, you say?

MR SIDES: - - - a sentence in between. That is one of them. We would respectfully submit that the maximum penalty here required a consideration of the approach of the courts in this State, of New South Wales, to that question of whether the Parliament intended by the maximum it set that there would be very long determinate sentences, as well as life.

That and the question of whether there should be additional safeguards or considerations, in our respectful submission, raises important issues for this Court to settle and the Court might consider it appropriate that the matter be joined with the matter of Mitchell from Western Australia in which special leave was granted in October.

TOOHEY J: Mitchell was a different case, though. Mitchell was a case in which the trial judge had the alternatives, the options, of sentencing in a manner which permitted an application for parole after 20 years, or a sentence which offered no such choice to the prisoner. The trial judge imposed a sentence of the former sort which left the prisoner eligible to apply for parole.

The Court of Criminal Appeal set that aside and substituted the sentence which removed any question of parole and then there was an issue as to whether or not the Full Court had erred in its setting aside of the sentence imposed by the trial judge. Here we have a situation in which the Court of Criminal Appeal has, in effect, endorsed the sentence imposed by the trial judge.

MR SIDES: Yes, but the schemes in Western Australia and New South Wales are different because, with the life sentence, whether it be life - I think they call it strict security life - the legislation provides for release to parole in the first instance after, I think it is, 10 years and in the second instance after 20. The judge in sentencing can determine that that opportunity for release to parole will be removed. In this State, of course, there is no opportunity for release to parole. So the schemes are different, but the issues involved in determining in Western Australia whether or not a prisoner should be denied the opportunity of parole or not, and the issues raised in this case are, we would submit, not dissimilar. Those are our submissions.

BRENNAN J: Thank you, Mr Sides. We need not trouble you, Mr Cowdery.

The applicant seeks an extension of time. That is so, is it, Mr Sides? It is only a matter of the form of order, as you would appreciate, Mr Sides.

MR SIDES: Yes, that is so, Your Honours.

BRENNAN J: The applicant seeks an extension of time in which to apply for special leave to appeal from the judgment of the Court of Criminal Appeal dismissing his appeal against a sentence of penal servitude for life for the murder of a nine-year-old girl. The Court considers that there was no error of principle in the reasons of the Court of Criminal Appeal. That Court was fully alive to the gravity of the sentence which had been imposed. As there was no error of principle, it would not be appropriate for this Court to grant special leave to appeal.

The appropriate order is that the application for extension of time in which to apply for special leave to appeal be refused.

AT 9.54 AM THE MATTER WAS ADJOURNED SINE DIE