P v The Queen; Ex parte Attorney-General of Queensland [2003] HCATrans 350 (12 September 2003)

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P v The Queen; Ex parte Attorney-General of Queensland [2003] HCATrans 350 (12 September 2003)

Last Updated: 17 September 2003

2003] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B74 of 2002

B e t w e e n -

P

Applicant

and

THE QUEEN

Respondent

Ex parte –

ATTORNEY-GENERAL OF QUEENSLAND

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 11.46 AM

Copyright in the High Court of Australia

__________________

MR M.J. BYRNE, QC: May the Court please, I appear for the applicant. (instructed by Hemming & Hart)

MR M.J. COPLEY: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Byrne.

MR BYRNE: May your Honours please, the offences to which the applicant pleaded guilty occurred some 27 years ago. In the intervening period, the applicant had not only not reoffended, but he had demonstrated by the time he fell to be sentenced in the District Court full rehabilitation. He had also demonstrated remorse over and above what was reflected by his plea of guilty. In other words, he had subjected himself to the justice system and a judicial officer and that judicial officer taking all of the relevant considerations into account, including the seriousness of the offence, imposed a sentence in accordance with law.

Then on a Crown appeal, the Court of Appeal, without stating or identifying any error by the primary judge, substituted its own what in my respectful submission is opinion as to the appropriate sentence.

McHUGH J: When you say it did not identify any error, is it not plain that it regarded the sentence as manifestly inadequate and that in itself is sufficient, is it not?

MR BYRNE: That is sufficient if there is a proper basis established for that, but what the court did, and may I take your Honours to page 45 of the application book - - -

HAYNE J: Let us, just before we go there, start, do we not, at page 15 of the application book with the grounds of appeal with which the court was dealing, a ground being manifest inadequacy.

MR BYRNE: Yes, I understand that, your Honour.

HAYNE J: Yes. Page 45.

MR BYRNE: Page 45. In the paragraph between lines 10 and 30, her Honour the President, with whom the other members of the court agreed, referred to the case of Gerhardt and then went on at about line 21 to say:

I am persuaded that interference is warranted in this case and that the respondent must serve a term of actual imprisonment because of the serious nature of these offences, despite the many mitigating factors in his favour.

Now, those two matters seems to be the identification of error, an identification of why, in the Court of Appeal’s opinion, the sentence was manifestly inadequate.

The difficulty, in our respectful submission, is that the learned primary judge explicitly took into account the serious nature of the offences, the fact that the Court of Appeal of Queensland had said that in normal circumstances such offences would result in actual imprisonment. His Honour had also taken into account what was there described as the many mitigating factors.

What the Court of Appeal did, and we reiterate the submission, is that they simply substituted their own opinion as to the adequacy of the sentence. Now, the submission is that despite the grounds of appeal which your Honour Justice Hayne has pointed out to me, there still needs to be identification of error. The case - - -

HAYNE J: By that do you mean that in a case of manifest inadequacy, the Court of Appeal must point to specific error? That seems to me to be a combination of different and conflicting bases for the court to act.

MR BYRNE: Can I answer that in this way, your Honour. The court in the passage I referred to at page 45 seemed to reach its conclusion by referring to what were seen as similarities in Gerhardt and then going on to say that there were serious features and mitigating features and that that leads to an appropriate sentence.

But the court, in my respectful submission, should have found instruction in the decision of a differently constituted Court of Appeal in Gerhardt. If I may take your Honours briefly to that decision, it should be part of the material. Gerhardt had similarities in the sense that it involved rather old offences and subsequent rehabilitation. Paragraph [16] of the judgment of the court in that case, their Honours considering similar grounds of appeal, namely, alleged manifest inadequacy, based the decision to intervene upon what was set out in paragraph [16] and following, namely, that the primary judge had made errors of fact and law. Importantly as to fact in paragraph [16] there is mistake as to the age. In paragraph [18] there was error as to what the maximum penalty prevailing at the time was. In paragraph [24] it was found that his Honour improperly took into account the possibility of a compensation order. In [25] his Honour, it was found, improperly took into account a provision of the Penalties and Sentences Act (Qld). At paragraph [29], the court there held that:

in this case the number of legal and factual errors leads us to the view that the sentencing discretion miscarried and, when these are corrected, the sentence is manifestly inadequate having regard to the serious nature of the sexual acts –

et cetera. What the Court of Appeal did in this case was not to identify any such errors of fact or law, but simply to go to the conclusion based on the exact material before the primary judge without saying why the primary judge was wrong.

McHUGH J: Sometimes you cannot. In other fields of law involving a discretion, as Justice Kitto once said, although you cannot identify any particular error, the result may be so manifestly unreasonable that error is presumed, and so it is with sentencing appeals. Sometimes you cannot point to any factual or legal error in the judge’s reasoning but, just given the very facts, it is obvious that the sentence is manifestly inadequate or manifestly excessive and, therefore, there must be error lurking there.

MR BYRNE: That, of course, is accepted but the submission here in the particular case is where there was this fine balancing exercise involving many factors, the primary judge concluding that a wholly suspended sentence was within the appropriate discretion available to a primary judge, then it was not open to a Court of Appeal applying the same factors to conclude that there was such a manifest error, saying that whilst the sentence was correct, namely, two years, the inadequacy was failing to have the applicant serve four months actual imprisonment. That difference, in my respectful submission, is not such as it would without more, that is, without identification of some error or some mistake, be such as to justify a
Court of Appeal as interfering in what is, as your Honour has pointed out to me, a discretionary process.

HAYNE J: But a sentence requiring actual incarceration is radically different in its effect on the offender from a sentence that does not require time inside, is it not?

MR BYRNE: Quite so, quite so, and we can only respond to that by saying when one looks at the circumstances here, the actual term of imprisonment required to be served, though there is the radical difference that your Honour points out to me, is not such as to show on the test that there was manifest inadequacy. Unless there is something further, those are the submissions.

McHUGH J: We need not hear you, Mr Copley.

We are of the view that an appeal would have insufficient prospects of success to warrant the grant of special leave to appeal. Accordingly, the application - - -

MR BYRNE: Before your Honours stand the matter down, may I ask this. The Court of Appeal, pending the determination by your Honours today, has ordered the Bench warrant in respect of the applicant to lie in that registry.

McHUGH J: Yes.

MR BYRNE: May I ask if your Honours are minded to allow it to remain in that registry until Monday, 15 September, that is next Monday?

McHUGH J: It is a question whether or not we have any jurisdiction in relation to the matter. I think the appropriate course for you, Mr Byrne, would be to make an application instanter to the Court of Appeal or to a judge in the Court of Appeal to extend the warrant.

MR BYRNE: Thank you, your Honour.

McHUGH J: After all, a special leave application is an application to commence proceedings in the Court and although we have power to grant bail once an application is lodged, I have real doubts if we refuse an application whether we have jurisdiction to do something about some order of another court.

MR BYRNE: Very well, thank you, your Honours.

McHUGH J: Yes. Accordingly, the application for special leave to appeal in this matter is dismissed.

AT 11.56 AM THE MATTER WAS CONCLUDED