Rush vThe Queen S117/2000 [2000] HCATrans 782 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S117 of 2000

B e t w e e n -

SHAYNE CHARLES RUSH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 4.01 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with MR G.P. CRADDOCK for the applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC: May it please the Court, I appear with MS P.J. HOCK, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GAUDRON J: Yes, Mr Basten.

MR BASTEN: Your Honours, the Court of Criminal Appeal intervened at the instance of the Crown in this matter in a case where the trial judge, by his reasons for sentence, demonstrated that he had considered the range of relevant factors and had not departed from proper principles. The intervention depended entirely upon discerning in the actual sentences imposed a gross departure from an appropriate norm. Beyond the bald conclusion that there was manifest inadequacy, the judgment of the Court of Criminal Appeal does not identify reasons for its conclusion.

GAUDRON J: You ask us to assume, do you not, that an experienced court simply did not know what it was doing; did not know the principles?

MR BASTEN: No, we do not ask your Honours to assume that. What we say is that the Court failed in the same way that the Western Australia court in Dinsdale failed to identify the appropriate principles which it needed to apply. No doubt it understood and it referred to the fact that there needed to be a gross departure. The two points which we say arise are, firstly, that there is no indication as to how the gross departure test was to be applied and, secondly, as to what principles governed the exercise of a discretionary power to intervene, even had gross departure been identified.

GAUDRON J: Well, when you say "gross departure", what exactly do you mean by that? Are you seeking to challenge the proposition that the Court could intervene if the sentence was manifestly inadequate?

MR BASTEN: Not if it was, your Honour, but it needs to be established to the satisfaction of the Court applying proper principles that it was. The term "gross departure" we have taken from the extract from Griffiths v The Queen in the passage set out at page 44 of the application book at about line 25. What we say is required in order to establish a sufficient departure which might indicate an error in point of principle is, firstly, that there be a class of cases identified into which this case falls and, secondly, that there be some attempt to identify the norm from which it is said that the sentence grossly departs.

GAUDRON J: You want a guideline judgment in every case virtually.

MR BASTEN: I think we might suggest in other circumstances that guideline judgments are inappropriate.

GAUDRON J: I think that is what you are inviting though by your submission, are you not?

MR BASTEN: No, it is not, with respect, your Honour. The invitation is to have some points upon the sea of arbitrariness which allow us to identify whether there has been a simple disagreement as to the appropriate sentence or whether there has been a manifest departure from principle. Your Honours, one can obviously identify classes of cases and one could identify norms by a number of means. In this case, the Crown eschewed any such exercise. There is no suggestion, unlike Dinsdale, that there might have been other decisions to which the Court referred which might have given an indication as to the norms. The only alternative course which was suggested by the respondent to the appeal in a passage which we deal with at paragraph 3.8 in the submissions, your Honour, was to identify from the available statistics whether or not Judge Job's sentence - - -

GAUDRON J: These were very serious offences.

MR BASTEN: Serious offences indeed, your Honour.

GAUDRON J: Very serious. There was a repetition of the offences; they involved preying on very young girls. I should have thought that these were probably as serious offences of the type as you could find. In one case there was rape.

MR BASTEN: Yes.

GAUDRON J: What did your client end up with?

MR BASTEN: Well, your Honour - - -

GAUDRON J: Three separate predatory attacks.

MR BASTEN: There were four separate counts on which there was intervention with two. In relation to the most serious, which is probably the best way to take it, he received a seven-year sentence of penal servitude. We note that at paragraph 2.4. That was in relation to an aggravated sexual assault. If your Honours go to page 18, which was the material which the Court considered, a seven-year full term is above the median but within the general range - - -

GAUDRON J: I know, but we are talking about very young victims.

CALLINAN J: Nine years old, 19 years old, 12 years old and 10 years old.

MR BASTEN: Well, I accept that, your Honour, and in Dinsdale the girl was nine years old and in the home of the assailant and no sentence of imprisonment was imposed. There is no doubt that this is a serious offence. These are the ranges of sentences; if they are - - -

GAUDRON J: Seven years for what? If I go to the figures, you are talking seven years for one offence?

MR BASTEN: Yes. There was an accumulation of sentences, so that the total was in excess of that. It was nine years and eight months for the total of the two days events. Your Honour says they were of the most serious kind. That, with respect, is subject to one or two qualifications: this man was not a recidivist, he had no prior record of these sort of offences - - -

GAUDRON J: No, but he was a repeat offender in the ordinary sense of those words.

MR BASTEN: Yes, in a short period - there were two days, three days, I think, on which these offences - - -

CALLINAN J: There are only 24 hours in the day, Mr Basten.

MR BASTEN: Well, but your Honour would appreciate that people who are sentenced to prison and come back having repeated would expect to get a higher sentence and, similarly, if they have been released on conditional bail or parole and commit a similar offence, they would expect a higher sentence. I am not suggesting that - or might I go backwards: he is not complaining about the sentence, it was the Crown. What we say is that the Crown had to demonstrate a manifest departure from an appropriate range. In order to do that, it had at least to identify why the range which was proposed was inappropriate and indicate reasons for suggesting that this man's offence fell within a higher range. In order to demonstrate there had been a manifest departure, it would have been a range which must have at least gone from seven and a half years.

CALLINAN J: Mr Basten, could I ask you what the range would be for the offence that is dealt with in paragraph 13 on pages 29 and 30? What do you say the range for that offence alone would be?

MR BASTEN: This was the episode to which I was taking your Honours - - -

GAUDRON J: It was what used to be known as "rape" - of a 12-year-old girl - - -

CALLINAN J: Yes, in a lavatory, in a women's lavatory.

GAUDRON J: - - - who has gone to the library, I think, has she not?

MR BASTEN: Well, I do not remember if that was this one, I thought it was not. But the range, your Honour, is indicated on page 18. There was no other material relied on by the Court of Criminal Appeal. The range which is indicated - - -

GAUDRON J: Mr Basten, this whole proposition is absurd. The notion that you need material evidence or statistics to determine what sentence should be imposed, or what is manifestly inadequate or not manifestly inadequate, is just computerisation gone mad. Judges who sit in Courts of Criminal Appeal do not need statistics in every case to determine these issues. The fact that statistics were there seems to me to have been beside the point.

CALLINAN J: This seems to me - I mean, just to pick up that one offence that I referred to - to be an extremely serious offence, Mr Basten. A 12-year-old girl.

MR BASTEN: Your Honour, there is no dispute that it was a serious offence - - -

CALLINAN J: Well, it is rape, is it not?

MR BASTEN: Well, yes, it would be called rape in other jurisdictions.

CALLINAN J: Rape of a 12-year-old girl in a women's lavatory at a library.

MR BASTEN: Your Honour, there is no doubt about the seriousness of the circumstances. The question for the Court of Criminal Appeal was whether they could discern error on the part of the trial judge of the kind which would justify intervention - - -

GAUDRON J: Well, you do not need statistics to do that, do you?

MR BASTEN: I do not suggest you do, but really, is this not the same line of country as arose in Dinsdale? There simply is no basis for understanding. If one rejects the statistics and if one has no material from other case law - - -

CALLINAN J: But statistics cannot tell you anything about the facts of a particular case.

MR BASTEN: No, they cannot, they can tell you - - -

CALLINAN J: Once you say that, once you accept that, it seems to me that statistics are of just no utility at all.

MR BASTEN: Well, they may not be of great assistance, your Honour, but one looks for some assistance either in the case law - and if the Crown comes before the Court of Criminal Appeal and says, "This is a manifestly inadequate sentence", it needs, with respect, to present some basis upon which one must be able to discern error on the part of the trial judge. But - - -

CALLINAN J: I am sorry to interrupt you; I will not ask you another question for a while. Mr Basten, what is the maximum term for the offence in paragraph 13?

MR BASTEN: Twenty, your Honour.

CALLINAN J: And your client was sentenced to what?

MR BASTEN: Seven.

GAUDRON J: For all offences, in effect.

MR BASTEN: No, nine years and eight months was, I think, the total for all - - -

CALLINAN J: But seven for this.

MR BASTEN: Seven for this, and if one wants to know what would attract the maximum, well, it is no doubt a serious offence on the part of a repeat performer with serious circumstances of aggravation. Obviously nobody was suggesting he should get that. The Court of Criminal Appeal - - -

GAUDRON J: Sorry?

MR BASTEN: Nobody was suggesting that he should get the maximum. The Court of Criminal Appeal increased it by six months. There is a real question about whether - and we do not know why they did that - there is not a tinkering here. In other words, doing the illegitimate of interfering because they thought a higher sentence would have been more appropriate rather than identifying appropriate error on the part of the trial judge with which intervention was justified. With respect, again there is the element of whether, even if there were error identified, it was an appropriate case in which to intervene. That might be for one of two reasons: either because of the need to establish that the norm was inadequate and that there should be some increase in the appropriate sentences, or to establish uniformity.

In either case one would have thought that it was necessary to identify where the range lay and where the error lay. Your Honours, with respect, we say that they did neither of those things, and that what one has is an unreasoned, unprincipled judgment based, no doubt, upon their Honours' experience but without that statement of reasons which would allow the respondent to identify whether or not there had been error in the way that the matter had been approached.

Might I take your Honours very briefly to the judgment in order to indicate what we say went wrong. At page 26 of the book, in paragraph 3, their Honours note that the Crown appeal asserted that the sentence imposed was manifestly inadequate. At paragraph 15 on page 30 their Honours said:

The Crown does not point to any specific error in the sentencing process, contenting itself with the argument that the sentences themselves, in their totality, are manifestly inadequate - - -

GAUDRON J:

- - - having regard to the objective seriousness of the offences.

I would have thought in this case, that is all you had to do.

MR BASTEN: Well, in that case, your Honour, with respect, we would say one has to do a little bit more than that, because all - - -

GAUDRON J: No, to establish manifest inadequacies - - -

MR BASTEN: All rape, on - - -

GAUDRON J: Rape of a 12-year-old girl in a women's toilet, to whom he speaks disparagingly, causes to be quite upset, in respect of whom there is not the slightest degree of remorse. There is nothing in his subjective matters to explain any of this. I would have thought that was all you needed to conclude that it was manifestly inadequate.

CALLINAN J: I thought your client had a forensic triumph in the Court of Criminal Appeal, that the sentences were increased to such a small extent.

MR BASTEN: Well, your Honour, there is obviously a question about how serious the offence was. There is no doubt that the Court of Criminal Appeal took into account the objective seriousness of the offence but, with respect, if they had thought that it was manifestly inadequate, it would have been appropriate to indicate on what basis that was, because rape is rape, and a young girl is more serious. We had a sentence which put us in the upper echelons of the range of sentences - most people get imprisonment for this offence - and the question is whether the range was disproportionately rejected by an experienced trial judge, someone who has many years of experience in the criminal justice system.

All I was going to say in going through the remainder of the judgment was that the conclusion, which is set out at paragraph 25, is simply a statement of conclusion without that analysis which we say is required. Again, there is no indication as to why it is appropriate to intervene in this case. If it is such that there needs to be an increase in the range of sentences, or if it is intended to suggest that in relation to particular cases the range needs to increase, one would have expected to have found that. If it is simply that in other cases of similar kind, greater sentences have always been given, then one would expect to find that too. Your Honours, we find neither, and that is why we say the Court of Criminal Appeal erred in the approach it took to the case.

GAUDRON J: Now, that is all very well, but I do not know how often we have to remind counsel that the appeal is not against reasons, it is against the judgment or orders. What you have here is an order allowing a Crown appeal which I would have thought could have been allowed simply on the basis of the objective facts.

CALLINAN J: Why is it not an error of principle for a sentencing judge not to have regard, or not to have even sufficient regard, to the objective criminality of the conduct?

MR BASTEN: There is no doubt that he had regard to it, your Honour. If it is to be inferred that he had insufficient regard to that particular element such as the age, then one would expect the court to have said that that was the difficulty.

CALLINAN J: Implicit in paragraph 25 is a finding of error of principle in the trial judge's not having to the objective criminality of the conduct if one has to find an error of principle in the way in which you say it has to be found.

MR BASTEN: Well, the question though is: in what way does it depart from an appropriate sentence? If the sentences were inadequate, then one needs to deal with them and give them consideration, no doubt. There is no doubt that the Court viewed the fact that they were serious offences objectively as being its primary concern. That simply raises the question as to where lies that range which renders this disproportionate. All we seek to say is that the reasons do not identify what an appropriate range might be. I take on board what your Honour the presiding judge says about one's experience of these matters and, no doubt, that is a matter which Chief Justice Barwick adverted to in Griffiths. But it really is a question of whether or not, in the particular case, one has identified adequately the class and identified the disparity. We say it was not done - - -

GAUDRON J: It was a question of whether the result is wrong. Forget about the reasons.

MR BASTEN: With respect, what your Honour and Justice Gummow said in no doubt the slightly different circumstances of Dinsdale was that it was not only the process, but also the expression of it which needed to be made explicit. That was the principle on which we sought to rely, but we have set it out in our written submissions and I cannot take that matter any further, your Honour. If the Court pleases.

GAUDRON J: We do not need to trouble you, Mr Cogswell.

In this matter a fair reading of the judgment of the Court of Criminal Appeal indicates that that Court was well aware of the principles relevant to a Crown appeal against sentence, and correctly applied those principles. Given the nature of the issues on appeal, it was not necessary for that Court to give further reasons for the sentence that it imposed. Accordingly, special leave is refused.

AT 4.23 PM THE MATTER WAS CONCLUDED