Stewart v The Queen P23/1999 [2000] HCATrans 193 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1999

B e t w e e n -

RICHARD GREGORY STEWART

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 11.53 AM

Copyright in the High Court of Australia

MR D.F. HORE-LACEY, QC: I appear with MR J.A. O'CONNOR, for the applicant. (instructed by Aboriginal Legal Service of WA (Inc))

MR R.E. COCK, QC: I appear with MR G. MIGNACCA-RANDAZZO, for the respondent. (instructed by the Director of Pubic Prosecutions (Western Australia))

MR HORE-LACEY: If I could just start with a bit of essential background. The applicant's date of birth was 5 August 1974. The offences, the subject of this application, were committed between 13 September 1997 and 13 October 1997, a one month period, meaning that he had just turned 23 at the time. The applicant was sentenced to a term of imprisonment for 14 years. There was, as well, owing, a period of 1461 days for a previous sentence which means that the total head sentence, because it operated cumulatively, was in the vicinity of 18 years.

The sentencing judge declined to make a parole order under section 89 of the Sentencing Act 1963 and it is really that exercise of discretion that forms the main basis of this particular application. At page 69 of the application book the learned sentencing judge sets out the - 67 and 69, the learned sentencing judge makes comments in relation to the declining to order a parole period. His Honour said at line 32:

You have demonstrated not only that you are quite prepared to commit numerous and very serious offences but to do so even whilst one parole. Indeed your history and present offending, like that of your co-accused, reveals a continuing attitude of serious disobedience to the law, a tendency to violence against property and persons and a grave disregard for the rights and property of other members of the community. There must be something before the court sufficient to trigger the exercise of the discretion to grant parole eligibility. I can find no such thing. The submissions of your counsel generally, as well as the express submissions to which I have referred, considered in the light of your past and, more relevantly, present offending do not, in my view, provide such a trigger.

GAUDRON J: Do you say that is wrong?

MR HORE-LACEY: We say that that is wrong, yes.

GAUDRON J: In what respect? Do you say it is wrong in this particular case or wrong generally?

MR HORE-LACEY: Wrong, generally, as a general proposition.

GAUDRON J: Yes.

MR HORE-LACEY: We say under section 89 there is nothing in that section which indicates that there has got to be some trigger or some aspect of the evidence to attract the exercise of discretionary - - -

GAUDRON J: But would there not need to be something, ordinarily speaking, in circumstances in which there is a history of serious offending, including serious offending whilst on parole?

MR HORE-LACEY: There would have to be some reason, yes, your Honour, but not a trigger, not a trigger from the - - -

GAUDRON J: What is a reason rather than a trigger?

MR HORE-LACEY: Youth, to start with, and the fact that it is a very long sentence, secondly, and those principles have been set out in a number of cases, including Bugmy, a decision of this Court, and also the case of Denyer which, in effect, say the longer the sentence the more difficult it is to predict a person's position when they come to the end of a long sentence, as far as rehabilitation is concerned, and indeed that - - -

HAYNE J: Now, in the case of this applicant, the Full Court appears to have proceeded from the premise that, in any event, at the completion of this sentence he would go out into the community on parole in respect of other sentences. Was that premise right?

MR HORE-LACEY: Yes, well, that premise, in those terms, was not right but he would have been eligible for parole, as I understand it, under the previous sentence. He would have had parole eligibility some time in - yes. As soon as he is sentenced - the way it worked, as soon as the sentence, the 14 year sentence, less the one-third for automatic remission was served, then the other sentence came into play and the other sentence, because he had been released previously on parole, then he was entitled to make application for parole at any time, but it was not automatic parole but it was an entitlement to be admitted to parole which may or may not have been - - -

HAYNE J: Does it therefore follow that at the end of service of the sentence now under challenge if he is a proper candidate for parole he will be eligible for supervised release into the community?

MR HORE-LACEY: Yes, your Honour.

HAYNE J: What, then, is the purpose of fixing a parole period in respect of this offending?

MR HORE-LACEY: First of all, it would have allowed him to be eligible for parole two years earlier, at least. That was the practical effect, so, a discretion can be exercised much earlier and the authorities are that it is a very important consideration. It is all part of the sentence but that is the practical effect, your Honour, but what we say as far as this - - -

HAYNE J: But is the practical result of what has happened that this man is given 14 years effective minimum term, both minimum and maximum?

MR HORE-LACEY: Yes, but subject to section 95 of the Sentencing Act which provides a person will have deducted one-third by way of remission so, in effect, it is a sentence of, what, nine and a half years, or thereabouts, plus the potential four year sentence of the other particular matter, but had a parole order been made then, pursuant to section 93(1)(b), it would come into effect - he would be eligible to be released on parole, only eligible to be released on parole:

when he or she has served 2 years less than two thirds of the term.

So, it seems to us that it is an effective two year difference. Could I just take your Honours to the starting point of the trigger authority or the authority which has been followed in this State for quite some time and it appears in the case of Lawrence Peter Swain 41 A Crim R 214. I hope that authority reached your Honours. It was only faxed last night.

GAUDRON J: Yes, we have it, thank you.

MR HORE-LACEY: Thank you. What Chief Justice Malcolm did in that particular case, at page 217 he cited the well known authority from Power where this Court said:

"...a question of principle does arise in relation to the refusal of the learned trial judge to fix a minimum period. The effect of s 37(1) and (2) of the Offenders Probation and Parole Act (WA) as amended, so far as relevant, is that where a person is convicted and sentenced to a term of imprisonment of not less that 12 months, the court shall fix a minimum term during which the convicted person is not eligible to be released on parole, unless it considers `that the nature of the offence and the antecedents of the convicted person render the fixing of a minimum term inappropriate'. The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the publishment of the prisoner and favour his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power [1974] HCA 26; (1974) 131 CLR 623 at 629.

The circumstances of the present offence, although serious, were not such as in themselves to warrant the judge to decline to fix a minimum period. Nor did the antecedents of the offender appear to justify the course taken. His record of conviction does not preclude any previous sexual offences.

That means "include" - I think should be there.

The very severity of the maximum sentence made it the more appropriate to impose a minimum sentence.

We would say that that is an important consideration, in this particular case.

The Court considers that in all the circumstances the policy of the statute require the judge to fix a minimum sentence."

But, where his Honour the learned Chief Justice in that case drew a distinction between the provisions dealt with by Deakin was at page 218 where his Honour said:

Since Deakin the Act has been amended so that the discretion to refuse to fix a minimum term if that would be inappropriate became a discretion to fix a minimum term where it was appropriate. It has then become necessary to find something in the materials which pointed positively towards the appropriateness of parole. If the nature of the offence in the circumstances under which it was committed were not so serious as to warrant a judge to decline to make an order, the question would then be whether there was anything in the antecedents of the offender to suggest parole was appropriate.

Now, it is our primary submission that that process of thinking, with greatest of respect, is flawed. The fact that the Act has been, or part of it has not been amended, just this part of it, that the fact that the section is now in different language does not mean to suggest that there must be something in the materials which pointed positively towards the appropriateness of parole. That cannot be read from the section.

GAUDRON J: In any case or in all cases? I mean, there is a difference, is there not? That may be open to doubt as a general rule but what about the situation that you have here where the very offences in question were committed whilst on parole?

MR HORE-LACEY: There is no doubt about that, your Honour, and there is no doubt about that there are a lot of very aggravating circumstances, but by the same token, he is a youthful offender, certainly by comparison to the co-accused who is aged 37, and there was a very long sentence imposed. Indeed, section 89 recognises the particular aspect that we are making submissions concerning and that is section 89(2)(d) which provides one of the factors to be taken into account is:

circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made -

Now, with a long sentence like this, as we have put in the written submissions, and as pointed out by Bugmy and Denyer, it is impossible to look down the track to say that a person, especially a young person, or relatively young person, is incorrigible or has no rehabilitation prospects.

Could I just go on to the next case where this particular aspect of the judgment was picked up and that is in Howell v The Queen (1989)

2 WAR 60 and if I could go to page 67 of that judgment. His Honour Justice Brinsden stated at line 33:

In Herbert's case I pointed out that because of the very positive advantages afforded to a prisoner so far as length of service of a term within the prison system is concerned by reason of the application of s 37A, the Act seems to infer that generally a prisoner will be declared to be eligible for parole unless something can be found in any of the criteria to which reference must be made which would render it inappropriate to make such an order.

We would say that indeed is the correct test, but, his Honour went on to say at line 43:

In another case of this Court Swain v The Queen.....Malcolm CJ referred to Deakin and stated that the case was authority for the proposition that the severity of the sentence was relevant to the question of eligibility for parole though it was not authority for the converse proposition -

et cetera. That does not concern the point we are trying to make.

The Chief Justice went on to say that it was necessary to find something in the materials which pointed positively towards the appropriateness of parole. That seems, at first glance, to be contrary to what I said in Herbert's case but what I meant to stress in Herbert's case was that by reason of the wide ambit of the factors which a trial judge may take into account in determining whether eligibility for parole should be ordered, the philosophy of the Act suggests a bias towards eligibility.

So that, now, has become a gloss, if one can put it clumsily, on the basic proposition of Chief Justice Malcolm, and indeed in the unreported case of Grey there is a further gloss and judgment was delivered on 2 April 1993 at page 7, again a judgment of Chief Justice Malcolm. His Honour said:

The question of eligibility for parole under s 37A of the Offenders Community Correction Act involves the exercise of discretion. As was made clear in Howell v The Queen (1989) 2 WAR 60, the discretion is one which is to be exercised in the light of the wide ambit of factors in s 37A on the footing that the philosophy of the act suggest a bias towards parole: see Howell at 66-68 in the judgment of Brinsden J.

It is also well established that this Court will not interfere in the exercise of that discretion unless some error of fact or of principle can be identified or, for example, it can be said that the sentencing Judge has failed to take into account or given insufficient weight to some salient fact. In general the discretion in relation to the grant of eligibility for parole is to be exercised where the offender is able to demonstrate that there is something in the material before the court which points positively toward parole -

So, there is a situation which started off where there had to be a pointing to some material and then it was coupled with the suggestion that there was bias towards eligibility and then it seems, with respect, that it was again watered down a little to provide that as a general proposition. Now, we would say that the state of the law is not clear at all and this Court should make it thus. We would say that his Honour the learned sentencing judge has treated the situation quite clearly as a situation where there must be something in the materials that one can point to to trigger - the word that has become almost universal for the operation of this section - to trigger the relevant section.

We would submit that that is quite clearly wrong. In any event, we would say that there were matters, even if the trigger test was correct to trigger it, namely, the youth and the length of the sentence, as demonstrated by the authorities of this Court, in particular, the authority of Bugmy. May it please the Court.

GAUDRON J: Thank you, Mr Hore-Lacey. We need not trouble you in this matter, Mr Cock.

This Court grants special leave to appeal only when necessary in the interests of the administration of justice to correct an error in sentencing principle. It may be doubted whether it is a correct statement of sentencing principle that in all cases there must be something to trigger the exercise of the discretion to grant parole eligibility. In the circumstances of this case, however, where the applicant had a lengthy criminal record and the offences for which he was sentenced were committed whilst on parole, it was entirely appropriate for the trial judge to take the view that some such trigger was necessary before exercising his discretion in favour of parole eligibility. Thus, this is not an appropriate case to consider whether, as a general rule, some such trigger is necessary. Nor is it a case where it is necessary in the interests of justice to correct an error in sentencing principle. Accordingly, special leave is refused.

The Court will now adjourn briefly to reconstitute.

AT 12.13 PM THE MATTER WAS CONCLUDED