Walker v The Queen A44/1994 [1995] HCATrans 289 (23 August 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A44 of 1994

B e t w e e n -

GORDON LESLIE WALKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 4.07 PM

Copyright in the High Court of Australia

MR G.V. BORICK: If the Court pleases, I appear with MR J.F. HICKS, for the proposed appellant. (instructed by Diane Myers)

MR S.A. MILLSTEED: If the Court pleases, I appear for the respondent with MS S. McDONALD. (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ: Yes, Mr Borick.

MR BORICK: If the Court pleases, it was the combination of the mitigating factors here which is important and I just refer to them briefly. Walker was aged 16 at the time the offence occurred. He was acting under the influence of his brother and also under the influence of alcohol which his brother had given him. There was his confession 16 years later. The crime was discovered, but his involvement in it would not have been discovered apart from that. There was his plea of guilty and the maintenance of that plea of guilty in circumstances where he could have had an argument on the admissibility of the statement he had made, and the issue of delay where, at the time of his sentence, he was treated as an adult, rather than as a juvenile.

From reading the authorities, two approaches to sentencing have been referred to: one is known as the two-tiered approach, referred to in the Western Australian case of Punch, and that involves the setting of a term of imprisonment and then mechanically reducing it down, and the other is what is described as the instinctive synthesis approach, described by the Victorian court in Young. So there is a significant, in our submission, difference of judicial opinion about what is the correct approach to the sentencing process. In both of those cases, Punch, which was in 1993, and Young in 1990, there was a discussion of what this Court had said in both Bugmy and Veen.

BRENNAN CJ: It should not lead to any difference in result, should it?

MR BORICK: It may, but I would say straight away that both approaches are regularly used and it may be that there is nothing wrong with either approach. What is required, however, in every instance, no matter which approach is adopted, is firstly that the convicted person is entitled to know fully the reasons why he has got the sentence that he has got and secondly,the reason why the reasons have to be clearly set out, so that his legal advisers and subsequently a Court of Criminal Appeal can decide whether or not there has been any error.

In our submission, Justice Duggan in this case adopted a hybrid, it was neither anything that could be described as the two-tiered approach; it was in part that in so far as he dealt with the confession and plea of guilty, and mechanically reduced that by a quarter. The rest of it could perhaps be described as the synthesis approach. But, in so doing, he did not set out clearly and fully the reasons why he arrived at the sentence he did. It had the effect of not enabling either the advisers to clearly point to error, or the Court of Criminal Appeal to point to error. And we say that leads to an error of principle.

BRENNAN CJ: Is that possible to maintain? Sentencing is, to an extent, a visceral exercise, is it not, which does not really admit of exposition of more than the relevant factors and the general principles? Once that stage is passed, or is unnecessary, the sentence that is actually imposed has got to be one of judgment.

MR BORICK: Yes, but the judgment - and perhaps I could refer to Justice Murray in Western Australia talking about the proper end result, but there is, in my submission, in sentencing, no such thing as a proper end result, there is an end result, which is somewhere between being not manifestly excessive and not manifestly inadequate. So, in the middle there, there must be an area where principle is involved, in which this Court could say, "Well, this is a proper case for us to look at", and we say that is so in this case, because - and I began my submissions by talking about the combination of facts. Justice Duggan took them bit by bit; he ignored delay, so we know what the position was with that. He took the confession and the plea of guilty; we say he treated that mechanically. He took a quarter off, and we do not know a quarter of what. But the other two factors, and the important factors, were the age - the boy was 16 at the time - and the influence of his brother, are referred to, but we do not know what weight they took. We do not know whether his Honour give that 25 per cent, 50 per cent, or even one per cent, and without knowing that, it is impossible to know whether there was error in what his Honour arrived at. It is the lack of information which, in our submission, is important.

Nor, in the sentencing process is there any attempt to bring the combination of these factors together, which will happen in the synthesis approach, and will happen in the other approach, if you can see the reasons fully set out. But nowhere is the whole combination put together so that we can see whether there was a degree of mercy associated with this sentence.

So, in our submission, the combined weight has not been considered, and in particular, there has not been a consideration of how those factors, when combined, would lead to a more merciful sentence than what Walker received. If he had been sentenced as a 17 year old he would have served approximately seven or eight years, or thereabouts. It is difficult to pick, but there has been so many changes in the law since then, but that is probably a reasonable estimate. He gets double and that is in the face of the confession and the way in which that confession came about, and what had happened to him in his life; the horror of his life between the time of the crime and his confession. But, basically the error, we say, which leads to a issue of principle, is the failure to fully inform and the failure to fully take into account the combination.

Those are my submissions.

BRENNAN CJ: Yes, thank you, Mr Borick. We need not trouble you, Mr Millsteed.

The Court has said on a number of occasions that ordinarily it will not grant special leave to appeal for the purpose of considering whether a sentence imposed for a criminal offence is excessive. The Court is not persuaded that the factors to which counsel for the applicant has referred, when considered together, give rise to a question of general principle permitting an intervention by this Court. For that reason the application for special leave to appeal must be refused.

AT 4.18 PM THE MATTER WAS CONCLUDED