Mitchell v The Queen P15/1994 [1994] HCATrans 99 (26 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P15 of 1994 No C17 of 1993

B e t w e e n -

WILLIAM PATRICK MITCHELL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 1994, AT 11.23 AM

Copyright in the High Court of Australia

MR R.E. LINDSAY: May it please the Court, I appear with MRS C.J. ROSSI for the applicant. (instructed by Legal Aid of Western Australia)

MR A.N. HOPE: May it please the Court, I appear with MR P.D YOVICH, for the respondent. (instructed by the Director of Public Prosecutions Western Australia)

TOOHEY J: Yes, Mr Lindsay.

MR LINDSAY: Your Honour, the central question upon which special leave is sought is what are the principles that govern the exercise of the discretion whether to order that parole never be granted to a strict security life prisoner under section 40D(2a) of the Offenders' Community Corrections Act 1963 . That provision, Your Honours, was introduced in 1988 as a discretionary sequel to strict security life imprisonment. I have some authorities books in which the provision is referred to.

TOOHEY J: Perhaps we can have those now.

MR LINDSAY: It is page 14 in the pagination, I believe. In fact, I have loose copies of the commencement part of section 40D, but the relevant part is to be found on page 14 and it is section 40D(2a). Your Honours will see there that the only direction to the sentencing court is that such an order may be made where appropriate. Initially, of course, the sentencing judge has to determine whether or not strict security life imprisonment rather than life imprisonment is appropriate, and if he so does, then of course, there is always section 40D(2a).

This case represents the first exercise of that power. There are no statutory guidelines which govern the exercise of that power, and there was an equal division of opinion upon whether or not that power should be exercised. The sentencing judge at first instance declined to exercise that power and, of course, the Court of Appeal by majority considered that the sentencing judge's discretion had miscarried and made the order.

TOOHEY J: Is it accurate to say that there was an equal division of opinion among the members of the court? Justice Murray certainly would have dismissed the appeal, but does it follow that His Honour was in agreement that that was the appropriate order, or rather that the order was one which ought not to be set aside on appeal.

MR LINDSAY: Certainly His Honour considered that the decision, of course, was whether or not the sentencing judge had properly exercised his discretion, but as I read it, His Honour took the view that the order ought not to be made in any event because His Honour considered that the appropriate test was whether the applicant would pose a continuous danger to the public throughout his life and he did not consider that the evidence demonstrated that that was so.

TOOHEY J: Perhaps at some time, Mr Lindsay, you could just take us to that particular passage.

MR LINDSAY: Yes, certainly, Your Honour.

TOOHEY J: It need not be now, but when it is convenient in the course of your argument.

MR LINDSAY: Thank you, Your Honour. There were a number of differences, in my submission, as to the way Their Honours viewed the relevant sentencing principles, but I submit central to the legal principles which the majority considered applied, as against those who were opposed to making the order, was in relation to the question of prognosis.

The majority took the view that it involved a prognosis as to the degree of community risk that the applicant would pose in 20 years time, whereas, the view - and in my submission, the proper view - was that of Justice Owen, the sentencing judge, and the dissenting judge, Justice Murray, that the prognosis must relate, since it is a refusal of parole for a lifetime, to the degree of risk that the applicant poses throughout his expected life span.

Since that is the matter in issue, perhaps I can take Your Honours to the relevant passages. In regard to Justice Ipp at page 99, Your Honours will see there, he being one of the majority, at line 26:

The critical question is when would it be "appropriate" to make an order under s 40D(2a)? In my opinion it would be "appropriate" should the court decide that, as at the date of sentencing, and having regard to matters of the kind set out in ss 34 and 37A of the Offenders Community Corrections Act, the offender poses such a risk to the community that the power of the Governor to grant the offender parole in 20 years time (or earlier if special circumstances exist) should be withdrawn.

If Your Honours then go over the page, Your Honours will see lines 1 to 5 which, I submit, indicates clearly that he considers the relevant time is 20 years -

it will nearly always be a matter of difficulty to determine at the date of sentencing whether in 20 years time a wilful murderer will continue to pose a significant risk to the community.

In the case of Justice Kennedy at page 69 line 31, His Honour says:

The exercise of that discretion will almost invariably involve a prognostication as to the risk which the prisoner will pose at the expiration of the time prior to which he will not be considered for release under the Act.

A further reference on page 93 line 32, having reviewed certain comments of the sentencing judge, His Honour said:

That situation is likely to be confronted in any case where a prediction is required to be made 20 years ahead.

The test on the other hand which I would respectfully submit - - -

TOOHEY J: Before you leave those tests, Mr Lindsay, do you regard Their Honours in the majority as posing the test in identical ways?

MR LINDSAY: No, they do not, Your Honour. Certainly it is the case in regard to all the judges that they had regard to a prognosis, but in the case of Justice Kennedy, he considered that the circumstances and nature of the offence as well as the prognosis were factors which were central to whether it was appropriate. Justice Ipp, on the other hand, considered it was just a prognosis as to whether the applicant posed a risk in 20 years time, and Justice Murray, Your Honours, who is on page 111 line 16:

The exercise of the power should be confined to those cases where it can be seen, having regard to the nature of the offence committed in the circumstances of its commission and to the history, the antecedents and the personal circumstances of the offender generally, that the individual will continue to present an unacceptable risk of the commission of serious violent crimes against members of the community for the rest of his or her life.

He goes on to say that it is truly exceptional in nature, and then goes on to say - this is referring to Your Honour's earlier point -

It should only be exercised, in my opinion, upon the ground of clear evidence of the most cogent kind.

Then if Your Honours go to page 114 he points out that His Honour the sentencing judge said -

"there is no compelling evidence that, assuming you refrain from drug use, you would present a continuing danger to the public."

Then at page 115 line 26:

In my opinion, his Honour was expressing the view that the evidence before him lacked the necessary cogency to provide with sufficient clarity the ground upon which the power to absolutely deny eligibility for parole should be exercised.....I find myself quite unable to conclude that the learned sentencing Judge erred in that regard.

TOOHEY J: It is not necessarily an endorsement, is it, of what the trial judge had said, but rather that there had been no error demonstrated in regard to what His Honour had said?

MR LINDSAY: In regard to the central question of the prognosis, yes, Your Honour.

TOOHEY J: But is that the passage which you offer in response to my earlier question as to whether Justice Murray thought that the parole order could not be said to be inappropriate?

MR LINDSAY: Yes, Your Honour, but I submit that there is an indication from that, bearing in mind the evidence which was put before the sentencing judge, but there certainly was not any cogent evidence. The position was that there were reports, in effect, of two psychiatrists and an expert on effects of drugs on human behaviour, and the defence evidence which is uncontroverted was that the applicant, if freed from drug use, would not pose an ongoing danger to the public. That, indeed, is the test which His Honour Justice Murray adopted as the appropriate test for the consideration of the matter. So that was, in effect, uncontradicted evidence in the case.

There are two further matters which again, I submit, go to support of the fact that the majority in the Court of Appeal were having regard to the 20-year time span and not beyond. The first is that there was no reference to the age of the applicant by Justice Ipp at all, and in the case of Justice Kennedy there was only a passing reference to his age when considering his antecedents. In my submission, in considering whether someone should be deprived of parole for a life time, it should be relevant to look at the life expectancy of that person, that is, to look at the youth of the offender, in this case, 24-years old. That was certainly a factor which was considered by the sentencing judge posed to making the order, and by Justice Murray, but it was not a matter which was considered by the majority. Given that the applicant is 24 years old, I think mortality tables would indicate that the average male lives to 72. He would have on that basis another 48-years, and that would result in a sentence which, in my submission, would be quite disproportionate to other severe sentences which have been passed in Australia.

I mention the point at this stage, Your Honour, just to indicate that it is an indication that the majority in the Court of Appeal were not having regard to the life span of the applicant, but rather to the 20-year stage.

The other factor which, I submit, is significant is that both Justice Kennedy and Justice Ipp refer to the criteria in section 37A as being relevant. That criteria, of course, relates to finite sentences which this Court looked at in Chester. One of the factors in 37A is 37A(3)(d).

McHUGH J: But it is very difficult, is it not, to carry 37A across into 40D? Section 37A is concerned with making an order for parole, and 40D is concerned with refusing to make an order.

MR LINDSAY: I respectfully agree. There are a number of distinctions. One of them, Your Honour, is, for example, at page 6 in the authorities book, 37A(3)(d) is set out there, one of the factors which the court takes into account -

(d) circumstances which are relevant to the convicted person or which might, in the opinion of the court, be relevant to the convicted person at the time at which the convicted person would become eligible to be released from prison -

and, of course, in the case of 37A, one of the distinctions is that there is an automatic release, unless there is a special term offender, after serving a defined period which, if it is a sentence under six years it is one-third of six years and there is an automatic release at that point.

To apply the prognosis there as at the first date that the offender becomes available is, in my respectful submission, totally unsuitable in regard to section 40D(2a) because in section 40D(2a) there is no question of automatic parole at 20 years time.

TOOHEY J: Why do you say parole is automatic under section 37A?

MR LINDSAY: Because under section 40A, if Your Honour turns to page 9:

(1) The Board shall by order in writing direct that a prisoner serving a term of imprisonment in respect of which an order was made under section 37A be released.....shall -

unless he is a special term offender, and that is also set out in the Parole Board report which is in Your Honours' papers at page 47. Your Honours will see there in the third paragraph in black type -

The Board shall by order in writing -

and they make the point there that it is an automatic release. Indeed, it is quite evident that the majority were relying upon all the factors in 37A. In my submission, that must be wrong because obviously an order of non-parole is for a lifetime and should have reference, in my submission, to an unknown maximum based upon no doubt a calculation of life expectancy rather than a known minimum which is what 37A is concerned with.

I submit that there is a division of opinion as to the relevant legal principles which apply, and on the one hand Justice Kennedy views the circumstances and the nature of the offence as a matter which stand side by side with the prognosis in making the determination. Justice Ipp takes the view that it is a prognosis based upon 20 years time, and Justice Murray takes a view and that is the one which I respectfully adopt, that it involves consideration of whether the applicant poses a danger to the public throughout his or her life.

Your Honour, in Chester's case before this Court Your Honours were looking at the question of indeterminacy under section 662, and it was there said that special leave was granted because an authoritative statement was required, there being dissent there in the Court of Appeal, upon the governing principles. The relevant passage is at page 616:

The applicant's case for special leave to appeal rests very largely on the ground that the division of opinion in the Court of Criminal Appeal reveals a difference of opinion as to the principles governing the operation of s 662(A) or at least a need for an authoritative statement -

so I submit that that is applicable here. It is a point of law of public importance. It is the most severe penalty known to the law in Western Australia, and one could say that it is the most severe penalty in Australia because, of course, while other States have a term of natural life there is, for example, in New South Wales, as Your Honours will be aware, power to apply to the court after eight years; and furthermore, there is power in other States such as Victoria for the setting of minimum terms.

TOOHEY J: Your time is up, Mr Lindsay. Yes, Mr Hope.

MR HOPE: Your Honour, it is our contention that the Court of Criminal Appeal did not err in respect of this matter and that the majority looked at the questions relating to parole clearly distinguishing between questions applicable to head sentences and questions relating to parole, and that is a matter that is referred to by both of Their Honours constituting the majority regularly. So at the outset it is noted that the Court of Criminal Appeal did not fall into the error of the judge in Bugmy's case, for example, and at all stages were very definite in distinguishing between those considerations which bear on the fixing of a head sentence and those which bear on such a matter as this.

As to the relevant considerations, it is our suggestion that all of Their Honours did consider that a relatively broad approach should be taken as to what should be looked at in making such a decision. All the members of the court considered that they should not be constrained in determining a question as important as this and, in our submission, that was plainly right.

Your Honours, in the judgment of His Honour Mr Justice Kennedy which was essentially adopted by His Honour Mr Justice Ipp at application book page 97, who adopted those reasons and added comments of his own, at page 69 of the application book His Honour Mr Justice Kennedy between lines 15 and 40 indicates His Honour's approach to the exercise of the discretion. His Honour considered it was appropriate in these circumstances to look at the outset as a matter of statutory construction at sections 37A(2) and 34A, partly because section 37A also uses the term "appropriate" and that sets out the criteria applicable in an ordinary case. Clearly those criteria do not just simply go across in a case where one is making a decision whether or not parole should be refused for all time. But certainly those criteria at 37A do provide a number of relevant criteria which, in our contention, plainly would be relevant - the circumstances of the commission of the offence, the nature of the offence, the antecedents, and the circumstances relevant to the convicted person, are all matters which common sense would dictate should be appropriate.

McHUGH J: I have no doubt that is correct, but do you contend that the majority were correct in the time that they fixed for determining whether the prisoner would pose a risk to the community? It is fairly difficult to support that reasoning, is it not?

MR HOPE: With respect, it is our contention that the majority did not err by misunderstanding that they were considering the whole of his life.

McHUGH J: Justice Ipp specifically said 20 years or earlier if special circumstances exist, and in the passage at page 69 is it not plain that Justice Kennedy intended the same result?

MR HOPE: Your Honour, with respect, particularly in the case of His Honour Mr Justice Kennedy's judgment, it is my contention that His Honour well appreciated that he was considering a situation where there would be the possibility for further reports. I note, for example, at page 92 lines 15 through to 40, but particularly at about line 25 His Honour Mr Justice Kennedy when considering the approach taken by His Honour Justice Owen at first instance indicates that His Honour -

was clearly concerned at his inability to prognosticate 20 years or more into the future. This is what s 40D(2a) must require if account is to be taken of the level of the risk to the community if the prisoner is released.

So there he is referring to 20 years or more, and that prognostication, His Honour at application book page 70 lines 10 to 20, indicated that he was clearly aware of the situation in respect of reporting in this context:

If it is a sentence of strict security life imprisonment, and no order has been made under s 40D(2a), the period after which the first report is to be made is 20 years.

So His Honour was well aware that there were to be subsequent reports and the prognostication clearly would have to relate to the entirety of a person's life. After 20 years the applicant would be subject to regular reports on a three yearly basis.

McHUGH J: But that is if an order is not made under 40D(2a).

MR HOPE: That is so, Your Honour. That is what His Honour is pointing out. So His Honour was clearly aware - - -

McHUGH J: But when you are considering whether you should make an order under 40D(2a) that the prisoner should never be eligible for parole, is it not strongly arguable that Justice Murray is correct at page 111 when he said you ask yourself whether -

the individual will continue to present an unacceptable risk of the commission of serious violent crimes against members of the community for the rest of his or her life.

MR HOPE: Yes, Your Honour, I accept that that is right. My contention is - - -

McHUGH J: It seems to me at the moment it is strongly arguable that the majority judges did not ask themselves that question, and the argument for the applicant seemed to me to allow the case to be dealt with rather favourably from your point of view. Where was the error in the trial judge's exercise of his discretion to refuse to make an order? What error did the trial judge make?

MR HOPE: Your Honour, with respect, the view of the Court of Criminal Appeal was that the trial judge erred by placing undue emphasis on factors which would be relevant to a head sentence rather than simply focussing on this question of a non-parole period, and particularly placing insufficient attention to the circumstances of the case itself.

McHUGH J: That is hardly a relevant error. That is against the prisoner, is it not? The trial judge concentrated on matters that went to head sentence. That is adverse to the prisoner. It is not in his favour.

MR HOPE: Certainly the view of the majority appears to be he placed insufficient attention to the circumstances of the case itself and the risk to the community, whatever degree that risk might be, but taking into account the dreadful nature of these crimes.

McHUGH J: Well, this is a horrific crime. There is no doubt about that, but the question is whether the Court of Criminal Appeal are themselves in error, and in any event whether they should have interfered with the trial judge's exercise of discretion.

MR HOPE: It was certainly their view that he erred in that sense, and there were aspects of his sentencing observations which caused the court considerable concern, particularly his observations, for example:

So far as I am concerned you will never be released. That is the function of strict security life imprisonment.

That is application book page 50 lines 25 to 30, and at application book page 50 lines 1 to 5:

If I were to make that decision now it would be that you not be released because I have little confidence in your commitment to free yourself from drugs.

While the Court of Criminal Appeal considered that His Honour had to make a decision now in the sense that he was obliged by Parliament to make a determination that it was appropriate to make such an order, and in the circumstances of this particular case His Honour was entitled to find that he did have little confidence in the commitment to free himself from drugs, as he had heard the applicant himself he did not have to place the degree of emphasis on the written report which he appears to have done in the sense that he had heard the applicant himself, he found that the applicant had lied in claiming that since the event he proposed to abstain totally from drugs. In fact, the applicant admitted under cross-examination that contrary to what he said in his letter to His Honour, he had consumed marihuana and acquired marihuana on a number of occasions, being one of the very drugs said to be at the root of this crime, that His Honour was entitled, the majority found, to conclude that he did have little confidence in the commitment to free himself from drugs, and in those circumstances the decision should have been made at that stage that section 40D(2a) applied.

McHUGH J: Yes, but surely it is arguable that that is a basic error, because it is one thing to say, "Standing here at the moment, I don't think you should ever be released, and if I am the only person that has the power to make that decision, I say now you should never be released". But that is not the issue. The issue is whether a judge should make an order which precludes forever somebody else from admitting the prisoner on parole.

MR HOPE: Yes, Your Honour, I accept that that is the decision that had to be made.

McHUGH J: That is why I do not see that passage as indicating error on the part of the learned trial judge. He was saying no more than, "Sitting here now, and knowing what I know about you and having seen you, I doubt myself that you will be able to free yourself from drugs." But that is not the same question as saying, "whether I should make an order that nobody else can ever make a decision about you."

MR HOPE: Your Honour, with respect, the majority appears to have taken the view that having made that preliminary determination, the nature of the consequences of a reoffence being so horrific, it flowed from that that His Honour erred by not making the order at that stage.

McHUGH J: It may well be the case that when you are dealing with somebody aged 24 there could hardly ever be a case in which you could exercise this discretion.

MR HOPE: With respect, I think the applicant was 25, but it is clear that if an order such as this is made it is always going to be difficult to prognosticate. But our contention is that the will of Parliament should be reflected and that in appropriate cases orders should be made even where one is talking of periods significantly in excess of 20 years, and that will be the case where offenders are young enough to survive for considerably over 20 years' time. In my submission, it is clear that prognostication cannot be the be all and end all of an application under this section in the sense that if it was to be the case it would be very difficult to conceive of any case where one could prognosticate positively that a person would or would not be a risk 25 years in the future.

McHUGH J: I know, but obviously you have cases of middle aged or mature aged people who have a lifetime of doing this sort of thing and the court comes to the view that the person should never be released. But in the case of somebody who is 25 to say, particularly having regard to the evidence submitted before the trial judge, that nobody should ever again consider whether the person should be released on parole is a very large proposition to make out.

MR HOPE: Certainly, we accept that, Your Honour, and clearly youth is a factor to be taken into account, and in the view of the majority where they refer to those factors, youth would be a factor taken into account, and his youth is actually mentioned in the judgment of His Honour Mr Justice Kennedy. But we submit that against that must be balanced the enormity of the crime, the dreadful nature of these crimes, four people massacred in these circumstances.

McHUGH J: I appreciate that, and having had some experience in the criminal law for more than 30 years, I cannot readily recollect any case where the facts are worse than this.

MR HOPE: Yes, Your Honour, and clearly it is not just the victims; it is the impact on the community of Geraldton, Greenough where it happened, the school friends of the victims - all of that sort of thing, all of whom in a sense, as victims, have an interest in the outcome of the matter.

Your Honours, essentially our proposition is that the Court of Criminal Appeal correctly looked at all relevant criteria and they considered that important criteria, and the most important, would include the circumstances of the offence and the risk in respect of the community in the context of the crimes themselves. So it is not just, as it were, a percentage risk; it is a risk that a crime of this type of enormity could occur again.

I note the applicant himself, in his account to Mr Langham, indicated that he accepted that he was likely to commit crimes of this degree of enormity if he associates with amphetamines again. The Court of Criminal Appeal, the majority, were clearly concerned to ensure that that would never happen.

Your Honours, all of this must be viewed, with respect, within the context of the will of Parliament and the fact that Parliament in 1988 has again empowered the Court to, in the very exceptional case, make such an order and we suggest that this was such an exceptional case. It is the only one in West Australia where such an order has been made, and clearly the facts described by His Honour Mr Justice Owen as so serious as almost to defy description, in my submission, are the type of facts which Parliament had in mind when this section was passed, and that, in reflecting the will of Parliament, it is important in appropriate cases that such orders should be made.

Clearly, other factors, such as the antecedents of the convicted person, his age, his personal circumstances, prior offences on the woman at Mount Magnet, where he said, in Mr Langham's report at page 9 that:

The same thing might have happened to Julie SULLIVAN if I had a tomahawk I probably would have got her too."

The fact that the armed robbery offences, with which he was convicted and sentenced at the same time, involved serious cases of robbery inflicted on lone women in vulnerable circumstances, one involving a syringe, another involving a knife. He was convicted of other offences and had a poor record and, in our contention, there was and is a real risk to the community if the applicant does not abstain totally from drugs, and there will continue to be that risk, especially as His Honour Mr Justice Owen was concerned as to the applicant's claim that he wished to abstain.

Your Honours, I do not know that there is a great deal more that I can add to that.

TOOHEY J: Yes, thank you, Mr Hope. Mr Lindsay.

MR LINDSAY: Your Honour, I submit there is a need for consistent criteria in the exercise of this power and that different tests were adopted by the Court of Appeal in this regard. Certainly there was no reference made to age in the context of what that meant in terms of a life term by either Justice Kennedy or Justice Ipp, and that, in my submission, is a highly relevant factor. It is in the grounds of appeal, of course, that the sentencing judge's discretion did not miscarry and that is in the grounds of appeal and, indeed, that is the basis of Justice Murray's dissent, although, of course, when it comes to the legal principles, his test is a narrower one than that actually adopted by Justice Owen.

TOOHEY J: Yes, thank you, Mr Lindsay.

There will be a grant of special leave to appeal in this matter.

AT 12.04 PM THE MATTER WAS ADJOURNED SINE DIE