Harris v The Queen S64/2001 [2002] HCATrans 80 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 2001

B e t w e e n -

MATHEW JAMES HARRIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 10.59 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with MR G.P. CRADDOCK for the applicant. (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC: May it please your Honours, I appear with MS B.K. BAKER, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the point, if there be one, of our application is the manner in which the Court of Criminal Appeal, apparently under the residuary category in House v The King, set aside what remains on our researches, the longest, that is, the most severe, determinative or specified sentence within the meaning of section 21 of the Crimes (Sentencing Procedure) Act 1990 , which has been passed for offences of this kind.

HAYNE J: But the question is, the primary question - the first question to be answered would be whether this was a case for a determinate sentence, would it not?

MR WALKER: Yes, that was the question which pervaded beginning, middle and end of the debate before Justice Bell and the renewed debate, as we would characterise it, before the Court of Criminal Appeal, and there is, in our submission, the nub of the matter.

GLEESON CJ: And this sentence was imposed under the legislation that I think was characterised as "life means life".

MR WALKER: Yes. I am going to come back to that, because of the very important, or telling, postscript, as we would call it, with great respect, by Justice Wood in the reasons he supplied for the judgment of the Court of Criminal Appeal about life meaning life without the possibility of parole. May I come back to that point, because it is of significance in addressing the issue of the appellate process undertaken where, as I have just said, in effect, debate was merely renewed in the Court of Criminal Appeal about precisely the same factual matters, precisely the same judgmental matters and precisely the same discretionary factors as informed the debate before Justice Bell.

HAYNE J: And is that not at the core of the third class of House v The King? That you look at the answer, you say this cannot be right and you cannot identify where it went wrong.

MR WALKER: Yes. The residuary category eschews because it has not been able to find any misdirection as to law, any taking into account of irrelevant factors - I need to come back to that one because it has an afterlife in the reasons of the Court of Criminal Appeal - any failure to take into account relevant factors and any error of fact. Those cannot be identified and one way to read House v The King residuary category is that the fact that it is unreasonable or plainly unjust - that is the connotation of words which stand as the title of the residuary category - leaves the appellate Bench with the view that for the purposes of the good administration of justice there must be intervention, whether because there was an articulated error of the specified kind, or whether there is simply, what we might call, a miscarriage generally.

Now it is when one looks at the most severe determinate sentence that researchers show has been ordered, 40 years for a 30-year-old at the time of the offences, 31 when sentenced, that one questions, with great respect, whether, in light of the reasons advanced by Justice Bell, careful to-and-fro weighing of all the factors taken as a totality without an artificial sequenced but with a correctly statutory informed approach and her Honour came up with the very severe specified term of 40 years.

At the outset one must, for this applicant, confront the fact that the offences were remarkably awful. The victims can be described as physically and socially vulnerable and, at least as to the second and third, selected on that account, it would appear, according to the findings. Those matters were taken into account by her Honour in literally gruesome detail. What one therefore finds is that notwithstanding her Honour's reasons set out as much detail as one could wish in order to isolate error, both as to the matters of law, the appropriate matters of sentencing discretion at common law, which continued to have an importance and, on the facts of the case, no error of the specified error kind in House v The King terms is identified in the Court of Criminal Appeal.

One finds rather the following disturbing, as we would submit it, passages suggesting that there was simply a re-hearing with a simple, and we would submit, illegitimate substitution of a different view. At page 70 of the application book, paragraph 71, plainly correctly, with great respect, Justice Wood notes that Justice Bell had taken several matters into account consistently with the provisions of the Procedure Act and with authority. They include matters which are of high importance, we submit, in this case, bearing in mind the issue which we would seek to have this Court hear. Those are the matters concerning the bringing to light by reason of the prisoner's co-operation of matters which may well, might probably, never have come to light otherwise.

GLEESON CJ: What was that case in the Court of Criminal Appeal in which a man, many years after the event, as a result of some religious advice he was given, came along and confessed to what was otherwise an unsolved manslaughter?

MR WALKER: I am sorry, your Honour, I know of the case, but I cannot recollect the name.

GLEESON CJ: That was a case in which in terms of the Ellis principle and other considerations of leniency it was a most extreme case in favour of the accused.

MR WALKER: Yes, your Honour.

GLEESON CJ: And a Crown appeal against leniency was allowed, the Court of Criminal Appeal saying there are cases in which the objective circumstances must outweigh all those considerations.

MR WALKER: That language, your Honour, very similar to that, is at the heart of the reasoning against which we seek special leave in this case. If that reasoning elevates itself above what I will call simple disagreement and is to be read as a residuary category House v The King finding, then my task is made even more difficult that it would otherwise be, because we accept that the residuary category House v The King must be available in cases where there have been a heavy sentence, but there should have been so much more a heavy sentence as to leave the present sentence unreasonable or plainly unjust; language that needs to be adjusted to the criminal context and sometimes is done - - -

HAYNE J: House v The King was a sentencing case, Mr Walker, a fact usually forgotten.

MR WALKER: No, I am going to say, hence the adjustment of that language, with some conceptual adjustment as well by use of expressions such as manifestly inadequate or manifestly excessive, but it is appropriate, in our submission, for the language to employ House v The King as the authority because in this Court House v The King is employed as a point of departure for the appropriate appellate reticence or appellate approach to discretions including sentencing discretions and House v The King is inter-woven with the sequence of cases in this Court concerning, amongst other things, special leave to appeal in relation to sentences.

Your Honours, having observed at application book page 70 the propriety of Justice Bell taking into account those matters, what one is left with, in light of what your Honour the Chief Justice has raised, is the question whether, as a matter of proper exercise of discretion as opposed to simply an aspect of a particular exercise with which other minds may differ, it can be said that this case or, indeed, perhaps, any case represented an impossibility for the discretion properly to be exercised by taking them into account in such a way as to reduce a life sentence to something less on its face than life, and I need to come back to that notion.

HAYNE J: But it is more complex than that, is it not, Mr Walker? Once a determinate sentence was passed a non-parole period could be, and in this case was, fixed, so that it became a complex sentence of 40:25, but on appeal it becomes life without.

MR WALKER: Yes. May I come immediately then to the question of the postscript. It is possible to contemplate an approach which detects a residuary category House v The King error, where a remarkably long determinate sentence is given, as in this case, 40 years for a 30-year-old man - that is 40 years possibly in a prison - it is nonetheless theoretically possible to contemplate a House v The King residuary category error by reason of not merely the potentially duration difference, but also the symbolic difference, the retribution difference, between the message, "You will stay in prison for the rest of your life" and the message, "If you survive for 40 years and have not had parole in the meantime, you will get out in 40 years", but we know from the postscript where, for example, at page 83 of the application book, paragraph 123, at the end of a long, and with great respect, learned disquisition on the question of the availability of parole under the New South Wales new legislation, the Chief Justice goes out of his way to remark upon, as a matter of policy, the high desirability in permitting parole notwithstanding life means life.

That means that the reasons which precede that cannot possibly be read - and, indeed, one does not find this explicitly anywhere - as indicating that there was a difference between any specified sentence, virtually however long, and life, symbolically or in terms of, "You will never be free" - - -

GLEESON CJ: Have you a copy of that decision in Garforth that is referred to on the bottom of page 83?

MR WALKER: I do not have it here, no, your Honour. Your Honours, it is because of that that one then comes back to the question whether there could be that kind of error detected when a 31 year old or a 30 year old is sentenced to 40 years, albeit with non-parole at 25, and that is altered to life. Can there have been such a fall in short of an acceptable range of outcome where the difference can be seen to be one depending upon - - -

GLEESON CJ: Is that Garforth there?

MR COGSWELL: It is a marked copy, your Honour.

GLEESON CJ: That is all right. Yes.

MR WALKER: Where it can be seen that the difference depends exceeding the biblical span and in prison. Where the difference can be seen to have been imposed by a court which virtually goes out of its way in the postscript to indicate the desirability of a parole period possibility, so that life meaning life is not the reason which drives the decision.

HAYNE J: Well now, there have been cases in other jurisdictions, have there not, where courts have imposed life sentences and explicitly declined to fix non-parole periods on the grounds that the crimes committed were of such a kind that no parole period could or should be fixed?

MR WALKER: Yes, and one of the strengths of our argument, in our submission, is that this case was not a case where it could be observed by the sentencing court, for example, even if non-parole determination had been available we would have declined for the same reasons as have led us to the view that her Honour committed an error by finding a specified sentence at all, and that very contrast between cases where the capacity existed, but the exercise of discretion was refused, is one upon which we draw in order to demonstrate that this should not be seen, properly understood, as a residuary category House v The King disagreement at all. This was a question of a disagreement as to the weight to be given to a concatenation of matters, including so-called subjective factors, as well as what might be called the view of the culpability of the offence. Her Honour after all - - -

HAYNE J: But in this sentencing task the subjective features of this offender were of such a kind, were they not, that they would weigh slightly in the balance against the objective features of what was done and why it was done.

MR WALKER: And how it was done, yes. First of all, those three matters as to culpability, as I have conceded, must be taken as being quite remarkable.

GLEESON CJ: What do you have to say about the second sentence in the last paragraph on page 13 of Garforth?

MR WALKER: That that approach is clearly the approach being taken, for example, on page 79 of the application book at paragraph 105, but that the fact that such cases exist as possibility does not mean that whenever there is a change by an intermediate appellate court of a sentence of this kind that it necessarily falls within that category. In our submission, it becomes always a matter of weight to be given to a number of factors starting with what section 61 calls the culpability and moving, as your Honour the Chief Justice said, not necessarily in sequence, because it can all be done at the same time, to the matters called subjective circumstances.

HAYNE J: Do you accept that in fixing a head sentence the sentencer must proceed from the assumption that the offender will serve every day of that head sentence?

MR WALKER: No, but to proceed on the basis that the offender will never serve every day of that head sentence would equally be in error.

HAYNE J: Yes. Does not the fixing of a determinate sentence of 40 years by the trial judge itself in this case bespeak the error which the Court of Appeal discerned?

MR WALKER: No, nothing said by this Court should, in our respectful submission, ever send the message that high specified sentences bespeak error where life is a possible sentence.

HAYNE J: But 40 years for a 30 year old seems to inject a degree of artificial computation into the assessment of punishment of crimes that are properly described as awful.

MR WALKER: If that were so, your Honour, one would not expect subsection (3) to appear in section 61, which, as your Honour's know, derives one to section 21, which, as your Honour's know, is a contemporaneous indication of a renewed parliamentary intention that courts may provide specified terms and, in our submission, it goes without saying that in cases of this kind those specified sentences would need to be relatively severe. For those reasons, it does not and could not automatically bespeak error to impose a heavy specified sentence, which is after all the potential maximum by which somebody's liberty can be constrained, particularly when there is the possibility of the rehabilitation to which all four judges subscribed in this sentencing exercise for this person. It could only be described as prospects which were virtually theoretical for this offender, but their Honours, with great respect, correctly directed themselves that that was a matter for the future to tell and not for irrefragable predictions at the time of sentencing.

For all those reasons, in our submission, what can be seen on pages 78 and 79 of the application book is a disagreement about weight, albeit weight of a fundamental and threshold kind, namely, was the culpability of this offender for these offences, such as to fit the sentence to which your Honour the Chief Justice has drawn my attention in Garforth, a sentence which is not unique to Garforth and quite plainly informs, as a matter of principle, the approach taken on those very pages to which I have drawn attention. In our submission, when it is proper to take subjective circumstances into account, it will be a rare case, of which this case is not an example, where they become, having been fleetingly relevant, completely irrelevant. That, after all, was one of the argument's against my client in the Court of Criminal Appeal as recorded at paragraph 102 on page 78 of the application book that the matters have become irrelevant.

In our submission they were matters to be accorded such weight as the sentencing judge in her discretion thought appropriate, eschewing idiosyncrasy, properly directing herself and coming up with a result which over all did not shock in the sense of striking a reviewing court as unreasonable or plainly unjust or, to use other language, the slightly different area of discourse manifestly inadequate. Forty years, in our submission, partly for the reasons that your Honour Justice Hayne has put against me for other purposes, could not strike, in our submission, a reviewing court as manifestly inadequate when added to 30 years and taking into account ordinary expectations of life.

For those reasons, in our submission, and not least because of the factors referred to by the Chief Judge as to be unavailability of the non-parole period, this is a case where both the individual justice of the case and an important review of the manner in which severity appeals by the Crown ought to be determined and approached should be taken by this Court. May it please, your Honours.

GLEESON CJ: Could I have that Garforth judgment back again for a moment. Yes, we do not need to hear you, Mr Cogswell.

In R v Garforth, (NSWCCA, unreported, 23 May 1994), the Court said:

There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty.

That proposition, in our view, is applicable to the present case.

The sentences passed on the applicant upon his pleading guilty to three counts of murder were manifestly inadequate. The Court of Criminal Appeal rightly recognised that this was so and made no error in quashing the sentences passed by the primary judge and in resentencing the applicant as it did. That being so, special leave to appeal is refused.

AT 11.20 AM THE MATTER WAS CONCLUDED