MM v The Queen S137/2002 [2002] HCATrans 645 (13 December 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S135 of 2002

B e t w e e n -

A SNR (MIN - 299403)

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S136 of 2002

B e t w e e n -

K

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S137 of 2002

B e t w e e n -

MM

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 2.13 PM

Copyright in the High Court of Australia

______________________

MR W.C. TERRACINI, SC: May it please, your Honour, I appear with MR G.A. NEWTON for the applicants. (instructed by W.H. Parsons & Associates)

MR G.E. SMITH: If the Court pleases, I appear with MS S.J. HUGGETT for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GUMMOW J: Are we correct in assuming that they stand together, Mr Terracini?

MR TERRACINI: They do, your Honour. They have subtle differences, but the principle that we rely on is the same. At the outset I should say that we are cognisant of the fact that sentence appeals are rarely dealt with in this Court. However, the appellants' application - - -

GUMMOW J: We are conscious of the fact that, as it were, these were Crown appeals which were successful.

MR TERRACINI: Yes.

GUMMOW J: But, nevertheless, we still have to find some principle.

MR TERRACINI: Yes, certainly, your Honour. We say that it is a gross violation of the patterns of sentencing in cases such as this. There was insufficient regard to the youth of the offenders and to the principles associated with the discount given in cases of this type, indeed, of any type, where there is a plea at the earliest possible opportunity. I will seek to demonstrate that even though recognition of both of those principles was enunciated by the Court of Criminal Appeal, the statistics of the relevant sentences imposed on each of the appellants does not bear that out as having any practical consequence at all.

If I could take your Honours to page 236 of volume 1 appeal book - and whilst your Honours are turning that up can I again emphasise that we are in agreement that in criminal cases of this type there is, of course, a limit to what one can use statistics for. I do not want to argue that in every case a mere inspection of statistics is the be and end-all of sentencing.

However, there is, at the end of the day, benefit to be gained and, in this case, it becomes mathematically demonstrable of this point. The Crown conceded both at the Court of Criminal Appeal and, indeed, in submissions to this Court that these offences were not in the worst category. As a result, one then looks at what have been the maximum penalties imposed for offences of this kind for persons who are under 21 years of age. Not one solitary person received a sentence - not one received a sentence that was imposed on AEM (Snr). He received 13 with 9. That is the effective sentence.

GUMMOW J: How old was he at the time of the offences?

MR TERRACINI: He was born in April 1981 which, at the date of sentence - I will just turn up the precise date - I think he was 19, your Honour. Sorry, he was 20. He just turned 20 at the time of the sentence. KEM was born on 20 November 1983, which means he is 19 now and MM was born on 16 June 1984. He is 18 now. Now, not one single person that is the subject of this statistical sample received more than 10 years full term.

Now, the principle is, if it is not the worst category, which has been admitted twice by the Crown authorities, then how is it that they received the worst penalty? The facts are certainly rebarbative. Your Honours are not going to hear from me that this is a trivial matter. They were highly rebarbative in the way that they were carried out and the threats that were used. However, they should be sentenced in accordance with that gradation of penalty from the worst down.

The Crown case is basically that it is near the worst case. Well, 94 per cent of all persons convicted of aggravated sexual assault pursuant to section 61J of the Act receive below 10 years head sentence. 94 per cent. The only remaining statistics available on page 236: 3 per cent got 9 years, 3 per cent got 6 years. If your Honours then go to page 237, the minimum term, 94 per cent received below 5 years imprisonment.

Now, if they are going to be sentenced for worst case category, then so be it, but if they are not in the worst case category then, self-evidently, they must get at least below what is the worst case over this statistical sample since 1984.

CALLINAN J: Just remind me, what is the maximum?

MR TERRACINI: 20 years, your Honour, per count. Theoretically, they both could have received, effectively, 40 years with a non-parole period pursuant to the New South Wales Sentencing Act which you take off a third, et cetera. But, if I could be bold enough to suggest, we live in the real world. You do not get 40 years for matters of this kind and nobody has received 40 years, 20 years on each count, this century for a similar-type matter.

GUMMOW J: Well, these were capital offences.

MR TERRACINI: They were, your Honour, but nobody was hanged for these matters in this State since the 1880s. Nobody was hanged at all since 1941, but I am not saying that they are not serious. They are, but if the Crown concession is that it is not the worst category, and they have done that twice, then they have to get something less than what the worst category is.

GUMMOW J: But does that mean something more than the sentencing judge? I see the relief you would seek from us is a reinstatement of the sentencing judge's sentence.

MR TERRACINI: Yes, and again if I can be frank, that is what we ask for. However, if your Honours were of the view that it is somewhere in between, then obviously - - -

GUMMOW J: How would we? That is the question. By what principled path could we decide that?

MR TERRACINI: On the basis that insufficient recognition by the Court of Criminal Appeal was given, for instance, to the plea of guilty. They pleaded guilty at the first possible opportunity. Now, if, using Harrison as the benchmark - because that is what is relied upon by the Court of Criminal Appeal as the case that they say sets up a pattern of sentencing - and by a touch of irony, the District Court judge the subject of the appeal appeared as a Crown advocate in that case - but there, the Court of Criminal Appeal refers to it extensively in its decision as to how it can be used as creating a pattern of sentencing and discounting all the other authorities that were presented by the then respondent to the appeal. They commence a summary of Harrison on page 470 of volume 2 of the application book. Now, Harrison was, by any assessment, a horrendous case. The penalty imposed there, effectively, was 16 years.

GUMMOW J: What year was this?

MR TERRACINI: This was 1997.

CALLINAN J: You see, an appeal court might take the view that the pattern has to be changed. A pattern is not set in concrete for all time. There might be all sorts of reasons that might induce - - -

MR TERRACINI: I respectfully agree with that, your Honour, but if we are going to have worst case category, the worst case has to get the worst penalty.

CALLINAN J: Well, the worst case in future might get 18 or 19 years, or even 20, the maximum.

MR TERRACINI: It might. It might, your Honour, but - - -

CALLINAN J: I think courts have got out of the way of accumulating sentences. Everybody had assumed that sentences would be imposed concurrently, and that may not reflect the gravity of the repetition of the offences.

MR TERRACINI: No, I do not gainsay that for a moment, but if I could use an example. If you murder two people, how is it possible that you can serve two life sentences? It cannot be done. There has to be a practical approach to it.

GUMMOW J: Wait a minute, you are not comparing apples and apples, are you?

MR TERRACINI: Right, well comparing then sexual assault cases.

GUMMOW J: No, no, but in terms of set maximum sentence.

MR TERRACINI: Well, the effective sentence for murder in this State is no higher and, in fact, it is less than what these young juveniles got. The average sentence in this State where a murderer remains in custody is less than 13 years, and albeit the subjective damage done to these girls is horrendous, it cannot be equated with the taking of human life, the element of permanency associated with it.

Harrison was in his mid-twenties. He had a lengthy record. There were three victims, some crimes committed in Queensland, some in New South Wales, and the facts, obviously, must fall within the worst case category. There were elements of kidnapping, gross torture. I need not go into the facts, but they are far, far worse, even than the facts of this case, significantly worse. Now, if I could just apply Harrison. If Harrison was 17, is it seriously suggested that he would have received the same sentence?

CALLINAN J: There were some subjective factors in Harrison, though, were there not?

MR TERRACINI: There were. He had some mental problems, but the Court of Criminal Appeal, by error or otherwise, merely traverses the aspect of the plea of guilty in a very, very cursory fashion. They do not say what discount he got for the plea of guilty, despite the fact that the principles of the benefit of a plea had been well entrenched in New South Wales. It predates Thompson, I agree, but Winchester had been the law for some time about giving a maximum discount of about a third.

Now, if Harrison had been 17 or 18 the submission is it is just inconceivable that he would have got 16 with 12, bearing in mind that there were three victims - and this is a point that the Court of Criminal Appeal seemed to be keen to demonstrate had high significance, that there was more than one victim. There are three victims in Harrison, plus a large number of ancillary offences.

Now, the other important matter is that the Crown, when pressed as to the range, and this occurs at page 531 of volume 2, has told the Court of Criminal Appeal that the appropriate sentence should have been considered in the range of 10 to 13 years. Well, bearing in mind that it is a Crown appeal, and the law that has flowed from this Court and the Court of Criminal Appeal, we would have to take almost the bottom end and it would have to be 10 with a minimum term. We have 13 with 9, 13 with 10 and 14 with 10, and that is what we say is the principle here. It is so far out of the range that it has just created a new aspect of sentencing and this is not - - -

CALLINAN J: But do not courts do that from time to time? Do not courts, in fact, say, we are going to impose heavier sentences?

MR TERRACINI: They do, your Honour, but we do not have a pattern. This is what they have done in this case. They have created something new.

CALLINAN J: Once you say that, the pattern changes.

MR TERRACINI: The pattern can change, but they could have had a guideline judgment if that is what they wanted. This is not a guideline judgment. They had the opportunity to create a guideline judgment, say, this is what we are going to do, and for the lower courts, as it were, to follow this guideline. This is not such a case.

GUMMOW J: So?

MR TERRACINI: So as a result, your Honour, they are not suggesting that this should be the pattern for the future.

CALLINAN J: But it is not only guideline judgments that have precedential value.

MR TERRACINI: No, I agree with that as well, but this is so far out of the range - there is not one solitary person under the age of 21 who has received a penalty of the level of MM, in this case, 14 with 10, that is available to the statisticians. Not one. That is a statistic that can be used, not by way of a guide, it is a mathematical certainty. So as a result the practical result is that they have received the worst category sentence for offences that the Crown conceded were not worst category offences. Now, your Honours have, if we were to be granted special leave, a number of options thereafter. The sentence, of course, can be the same and it can be remitted back with certain recommendations, et cetera.

GUMMOW J: What would they be?

MR TERRACINI: If your Honours took that course - - -

GUMMOW J: Would they be directions?

MR TERRACINI: They would be directions in relation to the youth of the offenders and the greater emphasis giving to the plea at the very first opportunity. See, if I could put it this way, your Honour. If, for instance, the offenders were 25 and had records of any significance at all is it seriously going to be put by the Crown that they would have received a higher sentence than they received? And the answer will be no, because the statistics bear that out.

Now, if the legislature wants to change the penalty, which they have in this case, then that is a matter within their jurisdiction, as it were, and that can be done, but this predates it and the pattern of sentencing was so far below what we presently have as to be out of the general patterns of sentencing. The mean - and I do not want to get into saying that the mean is always applicable - it is not - but the mean is far less than half what they received.

CALLINAN J: I must say I have read Harrison and I think Harrison might have been very lucky.

MR TERRACINI: I do not, with respect, agree that he was lucky, but he could have got a lot more.

CALLINAN J: He certainly could have.

MR TERRACINI: But that is also our point, your Honour. It was a Crown appeal and so they had to effectively give him less than he otherwise would have got if he had been at first instance and that is what we say. This was a Crown appeal. We are not being sentenced as if we were at first instance. There are the principles of double jeopardy and we go then to what would be the bottom end, as it were, and the bottom end is not 14 with 10 when one were barely 17.

In terms of Harrison, there were a whole range of matters associated with jurisdiction that might have been factors. There were Queensland matters that the then District Court judge, Judge Christie, could not sentence him for, but even so, the facts on their face are absolutely appalling. But, in my submission, he would not have got anything like 16 with 12 if he had no record, he was 16 or 17 and he had pleaded guilty at the earliest opportunity.

Your Honours will see at page 237, if I could just return to that briefly, the statistics there as I have mentioned - - -

GUMMOW J: Yes.

MR TERRACINI: Your Honours, 94 per cent below 5 years minimum term.

GUMMOW J: Yes.

MR TERRACINI: Now, your Honours will see on that page the mean has the dotted line. I do not wish to argue that, but your Honours will see that only 6 per cent of that statistical sample is relied on by the Crown as well.

GUMMOW J: How large is the sample?

MR TERRACINI: 29, but that is, as we are told, the sample that can be provided from the data. That is not surprising bearing in mind the youth of the offenders and it extends over a period of nearly 7 years.

GUMMOW J: Yes.

MR TERRACINI: Now, the minimum term imposed in these instances effectively in relation to AEM (Snr) is 9 years, KEM 10 and MM 10. Now, so your Honours understand my submission, these statistics relate to one count. There are none available, as it were, to go with specificity into precise counts, as I understand it, so the non-parole period minimum term/fixed term deals with one count in relation to it, but even if you accumulate and, ex hypothesi, a defendant receives 5 years on the bottom and you accumulate even two and a half, we are still only up to seven and a half on a minimum term as opposed to 9, 10 and 10.

Finally, in my submission, the rehabilitative effect with young persons is still, as I understand the law, one of the prime considerations. They were very young and a lengthy period of imprisonment to this level is so far out of the previous pattern of sentencing as to use - these are not my words - the principles in White of a gross violation of the patterns of sentencing and your Honours then can interfere because it creates the vehicle for your Honours to intervene. They are my submissions.

GUMMOW J: Yes, thank you, Mr Terracini. Yes, Mr Smith.

MR SMITH: If the Court pleases, the use of statistics is fallacious, in our submission, and we submitted before that the statistics do not distinguish between the different types of aggravated sexual assault. Section 61J of the Crimes Act, which is the offence with which they were all charged, has a number of circumstances of aggravation. Section (2)(a):

at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b) . . . threatens to inflict actual bodily harm . . .

(c) . . . is in the company -

and that is what this was -

of another person or persons -

There were four assailants. Only three of them are the subject of these applications -

(d) the alleged victim is under the age of 16 years, or

(e) the alleged victim is . . . under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a serious intellectual disability.

GUMMOW J: Well, the victims were just 16, were they not?

MR SMITH: The victims were just 16. The victims were held for about four hours. One of the victims had 11 acts of unlawful sexual intercourse without consent perpetrated on her in that time, a number in the bedroom, others in the bathroom on two occasions where two of the applicants were committing such acts at the same time on the victim. The other victim was isolated and kept away and then, after the first victim was told that they would kill them if the other one did not give in to them as well and threatened with a knife, then the second victim was threatened four times with a knife to the throat, to the chest. She was threatened that her friend would be harmed, they would not get away, she would not be able to carry her home in the state she was.

So the statistics tell us none of that. It is our submission that this case was a unique case. All right, there was a concession made that it was not the worst category, although it was submitted it was very near the worst category.

GUMMOW J: Yes, well, attention is drawn to page 531 paragraph 29, yes.

MR SMITH: Thank you, your Honour.

GUMMOW J: In a particular - - -

MR SMITH:

"very close to it".

GUMMOW J: Yes, and:

the range of 10 to 13 - - -

MR SMITH: Yes, we said that. We are not talking about involving cumulative aspects. The laws had, in effect, been clarified prior to this appeal being heard so far as totality, thanks to Pearce's Case in this Court, and her Honour, the Court of Criminal Appeal found, had erred in four respects including the misapplication of the principle of totality and, that being so, the court was entitled then, having found manifest inadequacy, which I submit my friend does not seriously challenge, to resentence.

Now, we submit that the bald statistics just were not appropriate. You have to look at the facts, and the facts of this case are absolutely dreadful, if I can use an emotive word. It was a case where two girls were in fear of their lives. If you look at that 10 to 13, that was a figure that I put up because there were no other really comparable judgments to put to a case like this. Harrison is not a case like this, really. It does not have the attacks in company. It does not have the - - -

GUMMOW J: It is said against you that the Court of Criminal Appeal gave insufficient weight to various matters, and too much weight to others.

MR SMITH: Yes, and I submit they gave significant weight - my friend has not attacked what they have actually said - as to the youth of these applicants in the sense that they applied the principles that have been found in cases such as Nichols where young people behave in an adult way then the scales tip towards sentences with a general deterrence and towards punishment rather than the rehabilitation aspect where those offences can be classified, is not - - -

GUMMOW J: I think what it all may come to in the end is that there does not seem to be a dispute that the relevant factors were laid out by the Court of Criminal Appeal, but I think it said somehow when you look at the result it must have gone wrong.

MR SMITH: We submit that my friend has not pointed to where they have gone wrong and we submit that this Court would only rarely intervene in a sentencing matter. There is no doubt, both on the findings of the trial judge and the Court of Criminal Appeal, that these were extremely serious examples of the offence. So the sentencing that had been imposed at the lower court level was nowhere near the classification of near the upper level, as I think the trial judge said, that even though they were not in the worst case category, she accepted they were close to it. Close to it would bring in the range of 16 to 18 years, we would submit, not 7 to 8, which are the figures that she used to discount. That is not even halfway and they can only be called moderately serious offences. Here, my friend has not taken into - - -

GUMMOW J: Well, I think your opponent wants reinstatement of the original sentence - - -

MR SMITH: Yes, I heard him say - - -

GUMMOW J: But it is conceded that there are errors of law involved, are there not, in what the trial judge did?

MR SMITH: We submit that the Court of Criminal Appeal was right in finding failure to properly apply this Court's judgment in Pearce by failing to consider the sentences individually and then apply the principles of totality, failure to pay proper regard to the statutory requirements of section 33 of the Sentencing Procedure Act and the principles which apply to the Form 1 procedure and, of course, each of these applicants had other offences under 61J, all carrying 20 years in the Form 1. AEM had one. I think it is KEM had four and MM had two. Two of them, AEM and MM, had attacked the two girls, had committed the offences. One of them committed six offences on the one girl.

The third error found by the court, failure to pay adequate regard to the particular circumstances of each offence in determining whether the sentences should be concurrent or cumulative or partly concurrent and partly cumulative, and we submit that this was a case where partial cumulation was warranted. The statistics just do not go into the question of cumulation or Form 1 type offences. As my friend said, they are for a single offence, and, as the Court of Criminal Appeal pointed out, they do not look at cases, sometimes very serious cases, where the principal offence is, say, murder or manslaughter. Any sexual assault in circumstances of aggravation committed in that case does not get counted in the statistics so that it is a very rough guide, and it is one that the Court of Criminal Appeal, following previous principle, said that it would not follow in this case. We submit that is not error. My friend has not been able to demonstrate any error there where there are so many other categories of aggravated sexual assault and you cannot distinguish from the statistics.

So, in our submission, the fourth error found was failure to give adequate weight in the sentencing process to the factors of deterrence, denunciation and protection of the public and, in this context, giving disproportionate weight to the relative youth of the applicant.

Now, the Court of Criminal Appeal examined those matters in detail. They did not just make a statement, and they gave reasons for

their decision. I submit that my friend has not pointed or shown error in any of those reasons and, in these circumstances, it is our submission that that decision was not wrong and that the Court should refuse the application.

GUMMOW J: Yes, thank you, Mr Smith. Yes, Mr Terracini, anything in reply?

MR TERRACINI: There is just one matter, your Honours - page 191 of the first volume. We say the error is demonstrated succinctly in paragraph 80 where, in the Crown submissions, he refers to the "offences" in the plural, he refers to the specific cases, that is, the cases that were before the court, and said that "the range" was "10 to 13 years imprisonment".

Now, that was the Crown argument. So, if they were going to get 10 because it is a Crown appeal following the principles of double jeopardy and cases that have flowed from the principles, almost from time immemorial, then how is it that we get 13 on the top, 14 on the top and 13 on the top if that is the head sentence? Because if the Crown is not talking there about the minimum term, the Court of Criminal Appeal has, in some respects, almost doubled what the Crown wanted.

That, with great respect, cannot be a mere blimp, as it were, on the principles of sentencing. It is a fundamental issue. The Crown appeal put their range and the Court of Criminal Appeal effectively said, "Well, we will provide a sentence which is even far in excess of what the Crown says", and they were the Crown submissions.

GUMMOW J: We will take a short adjournment.

AT 2.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.50 PM:

GUMMOW J: The applicants, two of whom were juveniles at the time of the commission of the offences in question, seek special leave against the increased sentences imposed on them by the New South Wales Court of Criminal Appeal following an appeal by the respondent Crown to that court.

The contentions on any appeal to this Court would be that: (1) insufficient weight was attached to the youth of the offenders and to the early pleas of guilty; (2) both by Crown concession and an analysis of other serious cases of sexual assault, this was not the worst case, yet it attracted sentences close to the maximum sentences imposed in recent times in New South Wales; (3) the sentences were a gross violation of existing sentencing patterns.

The first two of these matters were ones to which the Court of Criminal Appeal had regard. The third involves, as it seems to us, an erroneous assumption that sentencing patterns are and must remain immutable. It also overlooks the statistics said to demonstrate sentencing patterns cannot take account of the particular circumstances of each offence and the subjective factors relevant to each convicted person.

Even allowing for the fact that the increased sentences were imposed by the Court of Criminal Appeal and that this would be the first appeal, if special leave were to be granted, from that resentencing, for the reasons we have given and for the further reasons that no error of principle has been demonstrated and that the quantum of sentences will usually, and should be, a matter for the courts of the jurisdictions in which the offences have been committed, special leave should be refused. Accordingly, the applications are dismissed.

AT 2.51 PM THE MATTERS WERE CONCLUDED