Russell v The Queen S60/1997 [1998] HCATrans 35 (13 February 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S60 of 1997

B e t w e e n -

JASON MARK RUSSELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 11.35 AM

Copyright in the High Court of Australia

MR J.C. NICHOLSON, SC: I appear for the applicant, if the Court pleases. (instructed by Voros & Associates)

MR N.R. COWDERY, QC: May it please the Court, I appear for the respondent with my learned friend, MR A.M. BLACKMORE. (instructed by the Office of the Director of Public Prosecutions (New South Wales))

BRENNAN CJ: Mr Nicholson.

MR NICHOLSON: Your Honours, what Chief Judge Blanch did in this case was unusual and perhaps it was unorthodox. He was taking something in the nature of a judicial risk, if I can put it that way. His actions, in our submission, were in response to what was a rather unusual situation. It was, we would argue, an exceptional case.

The applicant had been guilty, and pleaded guilty, to a bad case of sexual assault and it called for a significant sentence, which his Honour imposed. But, in our submission, his Honour was seeking to do more than simply be the community's voice for retribution. What his Honour was seeking to do was to achieve a breaking in the cycle of offending, incarceration and reoffending. His Honour was trying to structure a sentence which would enable the parole authorities to release the applicant into a structured environment to see if thereby some benefit could be obtained, not only by the applicant, but by the community.

It is our argument that the sentencing discretion was based upon a clear thesis and that that clear thesis is set out at page 22 of the application book. His Honour said in his remarks on sentence:

The pre-sentence report -

this is after having canvassed the details of the sexual assault, so it is not as though his Honour was seeking to minimise those -

indicates that he has been imprisoned on a number of occasions and indeed, in Dr Kearn's report he says that the prisoner has spent almost seven of the last nine years in gaol. Obviously institutionalisation is one of the factors that has to be guarded against when dealing with a prisoner such as this and I say that bearing in mind the fact that for these offences, prisoners cannot be sentenced to gaol for the remainder of their lives, they have to be sentenced to determinate periods and any determinate period means that he will come back into the community. When he comes back into the community, every step must be taken to ensure, as far as it can be, that when he is released, he is released to a structured environment that will provide some protection to the community at that time.

Now, that was his thesis, but there was material upon which he could act upon that thesis. In other words, this was, if ever there was going to be one, the opportunity where the cycle could be broken. Reading on:

The pre-sentence report indicates that, under supervision, he has not reacted well in the past -

and his Honour deals with that. Then at the top of page 23 his Honour says:

The pre-sentence report does, however, offer one glimmer of hope, when it says "The offender has used his time in custody to try to improve his educational deficiencies. In my opinion, he may have been shocked into a desire to change and it is possible that his response to supervision in the future will be better than in the past.

Again, at page 24, in support of this thesis that here is the one opportunity, his Honour observes, line 11:

Dr Kearn comes to the conclusion "It seems to me that after having discovered the gravity of his behaviour when intoxicated, Mr Russell has finally come to the conclusion that he needs to do something about his substance abuse and take part in a rehabilitation program.".

CALLINAN J: Mr Nicholson, what precisely is the error that you say the court fell into?

MR NICHOLSON: The error that we say has been made by the Court of Criminal Appeal is this, that the court has come to a decision on what it says are a number of mistakes of fact without looking at the extent to which, if at all, those mistakes of fact vitiated the fundamental purpose that his Honour was seeking to achieve.

CALLINAN J: What was the major factual error, the principal factual error?

MR NICHOLSON: The Crown said that there were, as it seems to me, two major factual errors: one was that his Honour had said the offence was out of character, there was no violence in his past record.

CALLINAN J: Did not the Court of Criminal Appeal say that that was wrong, that there was at least one violent - - -

MR NICHOLSON: Three occasions where there had been violence. They were violence that had been dealt with - - -

CALLINAN J: The Court of Criminal Appeal was correct when - - -

MR NICHOLSON: We would say that the Court of Criminal Appeal, in a literal sense, was correct in saying that there had been violence.

CALLINAN J: I have that point. What do you say was the other principal factual error?

MR NICHOLSON: Can I just pursue that point a little further with your Honour, if I may.

CALLINAN J: Yes, certainly.

MR NICHOLSON: But the point was that his Honour had said the offence was not out of character. In support of that he had said there are no offences of violence. But, in our submission, the finding of his Honour that the offence was not out of character was not vitiated by an assault police and a common law assault that had been dealt with by way of, I think, a $200 fine.

CALLINAN J: Those matters you say should have been disregarded, is that what you are saying?

MR NICHOLSON: Our argument is that when one was looking at the end of the day at the purpose that his Honour was seeking to achieve, and fundamental to that purpose was perhaps the finding that the offence was not in character, then, in our submission, the exercise by the Court of Criminal Appeal missed, as it were, the forest by looking at the blades of grass.

CALLINAN J: I understand that point. What was the other factor?

MR NICHOLSON: The second mistake that it was said his Honour made was that his Honour minimised the impact of the offence upon victim and, in our submission, firstly, we cavil with that, but assuming for the moment that the Court of Criminal Appeal finding was correct, that did not vitiate the fundamental purpose that his Honour had in mind, that is to break the cycle. So that, at the end of the day, it is our submission that when one looks at mistakes of fact, bearing in mind this is a Crown appeal and bearing in mind that it must be some matter of momental principle, that the Court of Criminal Appeal must have regard to the fundamental purpose that the sentencing judge had in setting up his sentence, in exercising his sentencing discretion and that was, in this case, to take a judicial risk for which he had, if I may say so, some encouragement in the reports and the material before him and even if there were mistakes of fact, they did not vitiate the fundamental purpose that he was seeking to achieve.

So it is a matter of small compass. But, in our submission, it is an important one and it is this, that when we are dealing with Crown appeals the Court of Criminal Appeal or, indeed, single judges where they are dealing with Crown appeals from local courts or wherever, in our submission, must have regard to the overall purpose that the sentencing judge had in mind to ascertain whether the sentencing discretion miscarried. That is the point and, in our submission, the Court of Criminal Appeal never addressed that point; that is, they never came to grips with the issue of whether the fundamental purpose that his Honour had was an unsound one.

BRENNAN CJ: But the Court of Criminal Appeal is not involved in some scraping of the conscience of the sentencing judge; it is concerned with the appropriate level of the sentence imposed.

MR NICHOLSON: Indeed, but what may determine whether that level of sentence is appropriate is the purpose that his Honour had in mind. In Griffith again his Honour Judge Grogan took a judicial risk and it was that purpose which was lost sight of, in our submission, by the Court of Criminal Appeal in that case. Here you have the same thing. It is not just enough for them to find an error of this sort or that sort, and particularly an error of fact; what needs to be addressed in the Court of Criminal Appeal in Crown appeal where liberty is at stake is the fundamental purpose that the sentencing judge was achieving. That needs - the sentence that he sets needs to be evaluated against the purpose that he had. If the purpose is wrong, then it may well be the sentence is wrong.

CALLINAN J: Even accepting what you say, Mr Nicholson, this is a terrifying and prolonged assault on a totally innocent young woman and, indeed, if there were any judicial risk to be taken, then surely the Court of Criminal Appeal was entitled to review that.

MR NICHOLSON: Entitled indeed, they were entitled to review it, and our complaint is that they did not review it. That is they did not review the judicial risk-taking. His Honour was very conscious of the magnitude of the sexual assault. His Honour paid close regard to that. But his Honour also had before him an Aboriginal accused and a person who had spent seven of his last nine years in gaol and was about to undergo, on his Honour's calculation, another three or four. So that what his Honour was concerned to do was to give an adequate punishment for that but, at the same time, to see if, for the benefit of the community, he could set this bloke straight; take that judicial risk.

Your Honours, the point is small. I do not seek to delay your Honours more than that.

BRENNAN CJ: Thank you, Mr Nicholson. We need not trouble you, Mr Cowdery.

The level of sentencing is pre-eminently a matter for the courts of criminal appeal of the States and Territories. It is not this Court's function to review the standards which are deemed appropriate to local conditions unless they are determined under the influence of an error in sentencing principle. Such an error could appear if standards were so divergent from Australian standards generally as to be attributable to some error of principle. That is not the present case. In this case, the applicant bases his application essentially on what are said to have been mistakes of fact by the Court of Criminal Appeal. That raises no special leave point. Accordingly, special leave should be refused. Special leave is refused.

AT 11.49 AM THE MATTER WAS CONCLUDED