Watts v The Queen S197/1994 [1995] HCATrans 402 (23 November 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S197 of 1994

B e t w e e n -

DAVID WATTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 12.18 PM

Copyright in the High Court of Australia

MR G.C. CORR: May it please the Court, I appear for the applicant. (instructed by Bruce R. Miles, Principal Solicitor, Aboriginal Legal Services Ltd)

MR K. MASON, QC: Solicitor-General for the state of New South Wales: 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))

DAWSON J: Mr Corr.

MR MASON: Your Honours, we have noticed that there seems to be a page missing from the judgment of the court below and we have copies of the missing portion.

DAWSON J: Which page is that, Mr Solicitor?

MR MASON: Between pages 14 and 15 of the application book do not carry through the judgment.

DAWSON J: Yes, you are right.

MR MASON: Now, the matter is complicated by the fact that the document I hand up indicates, by brackets, the missing material but it does not correspond with the particular page because a different system has been used to reproduce it.

DAWSON J: Yes. Yes, Mr Corr.

MR CORR: Your Honour, this matter is actually quite simple. It is based on a couple of simple propositions, namely, the one that has become so used that it is almost a parody itself, namely, there is a golden thread running through our system of justice, namely, the presumption of innocence. Derived from that is the right of every person to have the case proved against them.

The way that the system of sentencing is currently operating in New South Wales is such that a person who elects to have the case proved against him, ie, by pleading not guilty, going to trial, suffers a substantial detriment. In this particular case, the person could have pleaded guilty and received a penalty of two months. He chose not to do so on the basis of a belief that there was, in fact, a defence of the crimes with which he was charged. As a result, he suffered a penalty of fifteen and a half months and an additional term of another fourteen and a half months.

It is submitted that this case which is indicative of a large number of cases which are occurring in this particular State are such that a person is being punished for having tested the Crown case against them.

McHUGH J: So, where does that lead?

MR CORR: That in this particular case that the original sentence should be placed back, namely, that of two months against him.

McHUGH J: Why? It may be the two months sentence was totally inadequate.

MR CORR: I would submit in this particular case it was not but that such a gross disparity, I would submit, is one that clearly - it must be seen in this case that even if there is a mythical figure in the middle which is seen as what the sentence should be, that on one side you are getting the penalty for pleading not guilty and, on the other, it is said that there is a benefit for pleading guilty at an early stage.

TOOHEY J: No, you are not getting an additional sentence for having pleaded not guilty. Section 439 of the Crimes Act operates so that the judge fixes the appropriate sentence, at least in his or her own mind, and then makes some discount for the fact that the person has pleaded guilty. But to say that the court is imposing an additional or an increased sentence by reason of a plea of not guilty can be an entirely different proposition.

MR CORR: I would submit, your Honour, that it is two sides of the one coin, that you cannot have that particular thing that a person who pleads guilty gets a substantially different sentence to a person who pleads not guilty and tests it can be seen as being anything but a punishment for those people who do in fact plead not guilty.

TOOHEY J: When you put it in that way but I question whether that is the correct way of putting it. Section 439 operates by reducing the sentence than it would otherwise have passed. Now, if there has been a plea of not guilty, the court imposes the sentence that it would have passed; that it does pass, but it makes no discount or grants no discount by reason of a plea of guilty. How can you say that, of itself, amounts to punishing the person for pleading not guilty?

MR CORR: At the moment in New South Wales, your Honour, there is a system of sentence indication where the person receives some indication. In this particular case, where the person received an indication, they would get two months imprisonment cumulative on some terms that he was already serving, but when a person has said, "This is what you get", a person can elect to do that here. If, however, they elect to go on and challenge the Crown case, or require that the Crown prove its case, they are liable to get a much higher sentence.

TOOHEY J: But that is a risk inherent in the system, is it not?

MR CORR: Yes, but I would submit, your Honour, that is a risk which results in the punishment of a person who elects to put the Crown to its proof.

TOOHEY J: But it is just fortuitous in many respects because the offender then comes up before another judge who takes a different view of the seriousness of the matter.

MR CORR: Is what your Honour saying that the system of sentencing is so completely erratic that it is completely dependent on which judge you get?

TOOHEY J: I am not suggesting that at all, but it is obviously implicit in the system that if the proffered sentence is not accepted, the matter then goes and it is simply a matter for the judge before whom the offender comes if he is convicted or pleads guilty.

MR CORR: I would submit, your Honour, that it goes beyond just the individual instance, but there is in fact a systemic problem here, that those particular sentences are of relatively lighter weight and that a person is offered those, and unless there is a clear-cut case now where a person can say, "I am going to get off", that the pressure is such that it becomes almost negligent for counsel or solicitors to advise people not to accept in a number of cases, because - - -

TOOHEY J: That may be a weakness of the system.

MR CORR: But as such to constitute such an injustice that I would submit that this Court should in fact be laying down some laws to the effect that a person should not receive a punishment for putting the Crown to its case, which is the system at the moment.

McHUGH J: But they do not receive a punishment. The accused was sentenced having regard to the terms of section 439. Now, you do not challenge the objective nature of the sentence. You do not claim that, per se, it is excessive. You assume that it is an appropriate sentence. Your complaint seems to be that because the accused was given an indication he would get two months if he pleaded guilty by another judge, therefore, he has been in some way punished. That just does not follow.

MR CORR: I would submit, your Honour, that the only difference between when he received that indication of the two months is what the penalty that judge would apply if the person pleaded guilty at that stage.

McHUGH J: Supposing the first judge had said, "I'll give him fifteen months". Where would your argument be?

MR CORR: That is not the situation, your Honour.

McHUGH J: Of course it is not, but it just shows it has got nothing whatever to do with anything there. It is a concept of punishment or additional punishment.

TOOHEY J: What are the implications of your submission, Mr Corr, that one judge, having as part of the process that you have described, indicated that, in his view, two months would be an appropriate sentence if the accused pleaded guilty, that it is then incumbent upon any court before whom the offender later comes to impose a similar sentence, or perhaps putting it another way, that the accused has a justifiable sense of injustice if he later receives a higher penalty?

MR CORR: Yes, indeed, he does, your Honour, in this particular case, where he wound up getting seven and a half times the original amount, and the only difference being that he has put the Crown to its case, that it required the Crown to prove its case. In the event, the jury, properly instructed, did accept the Crown's case.

McHUGH J: But in this particular case, with great respect to the judge, the sentence of two months was ludicrously light having regard to the accused's record. It is just unthinkable that you would get two months for stealing a car having regard to this accused's record, and the fact that you cannot challenge the objectivity of the sentence he had been given is, itself, convincing proof of that point.

MR CORR: Your Honour, I would say, however, that it is more than just in this particular instance. This is one case which has been chosen, but it is indicative of a systemic problem that exists in New South Wales.

McHUGH J: It is coming to an end though, is it not, in New South Wales, this whole system.

MR CORR: The sentence indication scheme has, but I would submit that, nevertheless, the punishment for putting the Crown to its case will continue, and I would submit that it would also be the case in numerous other jurisdictions around this country.

McHUGH J: It is not a punishment. The highest you can put it is, is that if you are ultimately convicted and you may, in some cases, get a higher sentence than the judge indicated. That is hardly a punishment.

MR CORR: But I would submit, your Honour, that in all the jurisdictions that I know of, if a person does in fact put the Crown to its case, they do wind up getting a greater sentence than if they do not. I have been informed that, to such an extent, most criminal trials now do not go on, that people plead guilty because of the detriment they suffer.

McHUGH J: I noticed that in the affidavit, but I also noticed an article in the University of New South Wales Law Journal where Dr Weatherburn disputed that and said the percentage of people pleading guilty after a committal is no higher now than it was before the pre-sentence indication scheme came in.

MR CORR: But I would submit that it is longer than period for the sentence indication scheme having been in place. It is something which has accumulated over a number of years. I draw on the experience of my instructing solicitor who has been conducting trials for some 40- odds years, and his belief is that there has been a substantial decline over that time, even in the most serious category of crimes of murder and so on, that now - - -

TOOHEY J: Police may be more efficient these days, preparing stronger cases for a start, Mr Corr.

MR CORR: Maybe we should get some evidence from the Royal Commission about that, your Honour, as to their relevant efficiency at the moment.

DAWSON J: My belief is, on figures which I have seen some time ago, is that in all States the level of pleas is fairly constant and has been for many years.

MR CORR: Your Honour may have the benefit - - -

TOOHEY J: It must follow, must it not, from the operation of section 439, that if a person pleads not guilty, then they cannot get the benefit of that section. It does not follow that they are going to get a sentence in excess of what is an appropriate sentence. If they did then that would no doubt provide the opportunity for the Court of Criminal Appeal to review the sentence, but you seem to be offering two situations; either a lesser acceptance by reason of a plea of guilty, or a greater sentence by reason of a plea of not guilty, but what about a sentence that is appropriate in all the circumstances?

MR CORR: I would submit, your Honour, that - you are saying that there is a sentence somewhere in the middle which, "This is the appropriate sentence", and that that is the one which would occur whether a person pleaded guilty or not guilty if there were no other circumstances taken into account, and that you would be saying that because of section 439, that that is then reduced, that there has been necessarily any increase because of the plea of not guilty. I would submit, your Honour, that there is a logical problem there in saying that that sentence which is the one which is appropriate in all the circumstances, when compared with that which is given when a person pleads guilty, that that distance between the two cannot be seen as the punishment for having pleaded not guilty and putting the Crown to its case.

TOOHEY J: That is what the section demands. A judge is enjoined to take into account; not that a judge may take into account; he is enjoined to take it into account. At least he is enjoined to take it into account. Then he or she may then, accordingly, reduce the sentence that would otherwise have been passed. How can a judge ignore the plea of guilty in those circumstances?

MR CORR: I would submit, your Honour, that particular provision and others like it and general law is in fact contrary to the established principles of presumption of innocence and so on and that it is quite probable that that particular provision is one which is so contrary to the law of this country that it is not capable for the Parliament to make such a law.

TOOHEY J: But that is not the argument being presented to us on this application, is it?

MR CORR: It may well be that we will have to expand it in an appropriate case, your Honour.

TOOHEY J: How do judges go about sentencing in New South Wales having regard to section 439? Does the judge say, "In all the circumstances, an appropriate sentence is five years. Having regard to the provisions of section 439, however, it being a plea of guilty, I propose to sentence the offender to four years"?

MR CORR: I am instructed that that is basically not the way that it is done.

McHUGH J: They just simply say they take it into account, do they not? They take the plea of guilty into account.

MR CORR: Yes. I would submit that it is more, that there is - effectively, that the decision-making process which a judge goes through are two separate things when there are pleas of guilty or not guilty and, effectively, the way that it is done is such that a person does in fact suffer a punishment. I think I can go no further on this point and those would be my submissions in this matter, your Honours.

DAWSON J: Thank you, Mr Corr. We need not trouble you, Mr Solicitor.

There is insufficient reason to doubt the correctness of the decision in the court below and, accordingly, special leave to appeal will be refused.

AT 12.35 PM THE MATTER WAS CONCLUDED