White v The Queen [2003] HCATrans 435 (24 October 2003)

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White v The Queen [2003] HCATrans 435 (24 October 2003)

Last Updated: 6 November 2003

[2003] HCATrans 435

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P57 of 2002

B e t w e e n -

STEPHEN NEIL WHITE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.01 AM

Copyright in the High Court of Australia

MR N.J. MULLANY: May it please, your Honours, I appear for the applicant. (instructed by the Director of Legal Aid, Western Australia)

MR R.E. COCK, QC: I represent the respondent, your Honours. (instructed by the Director of Public Prosecutions for Western Australia)

GUMMOW J: Yes, Mr Mullany.

MR MULLANY: Your Honours, the acknowledgment that sentencing does not admit of a single and correct answer determined by application of some mathematical or mechanical process makes it all the more important, as your Honour Justice Callinan observed in Pearce at paragraph 46, “that proper principle be applied throughout the process” and it was not here. Two errors can be identified in the reasoning said to support the restructure of the sentence which, in our submission, give rise to two questions of principle. Your Honours find those errors at paragraphs 41 to 42 of the reasons of his Honour Justice McKechnie, which appear at application book page 36. They are to be read - - -

GUMMOW J: Just a moment, 36?

MR MULLANY: Yes, your Honour, paragraphs 41 and 42. What appears there is to be read with what appears at paragraph 46 through to the first line of paragraph 49. What appears, your Honours, was that 42 reveals the nature of the key identified by the Court of Criminal Appeal used to unlock, erroneously, in our respectful submission, the door to appellate review. Having stated at paragraph 40 at 36 that the only criticism to be levied of the sentence was the decision to make the sentences concurrent, error in relation to that issue of a character said to justify interference was inferred.

GUMMOW J: In practical terms the then outcome was 17 as against 13, was it not?

MR MULLANY: Correct, your Honours. We know that Justice McLure started from a figure of around about 17 years. We can say that with some confidence because of her statement that she applied a discount of between 25 and 35 per cent. Your Honours find the relevant structures of the sentence and the restructuring below at paragraphs 3(g) and (j), which appear at 44 and 45 of the application book.

CALLINAN J: Mr Mullany, your point is, is it not, that unlawful wounding, attempted murder and two counts of sexual penetration constitute one transaction?

MR MULLANY: It is, your Honour, but can I put it slightly differently.

CALLINAN J: It sounds a very unlikely proposition, I have to tell you.

MR MULLANY: Your Honour, can I come at it in a different way. What we say is that the issue of character was elevated to an all-determining feature in this case.

CALLINAN J: What do you mean, an issue of character? Character of what? Character of the offences?

MR MULLANY: Correct, your Honour. We know that because of what is said at 42. But for the issue of character the presumption of concurrency would have been allowed to run its course. What the Court of Appeal said was that the sexual assaults were of a character which was so distinct from the assaults which did not contain a sexual component that they ought not be characterised as a single criminal transaction, notwithstanding, your Honours, a number of classic features which can I suggest characterise properly what occurred as a single event. They are outlined - - -

CALLINAN J: What was the time involved?

MR MULLANY: One hour and 25 minutes on the evening of 18 June 2001, in the one location, in relation to the one victim. Your Honours, can I direct your attention to paragraph 12 of the outline where we set out what we say are the features which lead properly to a characterisation of what occurred as one continuing episode, that is at page 47. We say this, your Honours, one can hardly imagine a better illustration of a single occurring transaction. This is not a situation, your Honours, like that which occurred in the case of Hayward at footnote 14 at page 48.

GUMMOW J: Different minds can reach different views on these characterisation questions of transactions - - -

MR MULLANY: There is no doubt about that, your Honour, and we accept that unreservedly.

GUMMOW J: - - - as we have been hearing in the other appeal in the course of the week, but the fact that we might do it differently does not mean there is a special leave point.

MR MULLANY: We accept that immediately, your Honour. What occurred here really though - - -

GUMMOW J: What would be the relief you would have us give? Is it, in effect, set aside the success of the Crown appeal and reinstate the primary judge?

MR MULLANY: Exactly so, your Honour. We accept unreservedly what your Honour just put to me, but we say that what occurred here is properly to be - - -

GUMMOW J: Because there was an error of principle by the Full Court.

MR MULLANY: Correct. There are really two halves to the application we present, your Honours, the aspect which we have been discussing and a second aspect, the nature of the key which the Court of Appeal said unlocked the door to appellate interference. It should not be forgotten, with respect, your Honours, that this all occurred in the context of a Crown appeal.

GUMMOW J: Yes, we understand that.

MR MULLANY: Your Honours, can I return to the first of the two questions that we advance. This is a rule in relation to which courts and scholars are agreed. They agree that the content and application of it is difficult to discern. They agree that the application of it has led to irreconcilable outcomes. There have been an increasing number of seemingly inconsistent decisions. It has proved increasingly difficult to discern from the authorities precisely what it is which permits a court to characterise a series of offences as one transaction warranting accumulation - - -

CALLINAN J: It is certainly not decisive that it may have taken place over only an hour and a half in the one location and with the one victim.

MR MULLANY: That is not decisive, your Honour, but we do not put our proposition that way.

CALLINAN J: They are three key points that you want to make, are they not? What else is there to make one transaction?

MR MULLANY: Your Honour, we say all of the things that we have referred to at paragraph 12 are classic hallmarks of a single transaction and we know that the only reason that this particular series of events was dissected the way it was was because of the characterisation given to the sexual assaults. Your Honours, what we say about that really is this. There was an invasion here of one legally protected interest.

CALLINAN J: What was the legally protected interest?

MR MULLANY: The legally protected interest, your Honour, was the security or integrity of the person. One sees immediately a distinction between what occurred here and what occurred in cases like Hayward, where one is comparing a series of burglaries with a series of sexual offences.

GUMMOW J: All these are offences against the person.

MR MULLANY: Quite so, your Honour.

GUMMOW J: Right. So what?

MR MULLANY: It was a very big “so what”, with respect to the Court of Appeal, because what they said was that was the determinative “so what” and “but for” a division, ruled if you like between sexual and non-sexual assaults, the presumption of concurrency would have been allowed to run its course. We say an assault is an assault. A sexual assault is an assault of a different character to the extent that it involves that element albeit, but what has been invaded here is the security and the integrity of this particular complainant.

CALLINAN J: That is one of putting it. The other way of putting it is that the victim was assaulted with an intent to do grievous bodily harm, there was an attempted murder perpetrated on her and then there were two separate sexual offences; an equally appropriate way to put it - four quite distinct criminal offences, all of the elements of which were completed and discrete from the others.

MR MULLANY: Your Honours, may I say two things about that. Firstly, in doing so, can I refer to what we say at paragraph 12(f) at 47 of the application book.

CALLINAN J: I know you have some point about the uncertainty as to the order in which some of them may have occurred. Is that the point?

MR MULLANY: We do have that point, your Honour.

CALLINAN J: But they all occurred separately.

MR MULLANY: It is a point of significance, with respect, because it is not known, firstly, whether or not the offences involving a sexual component came first or last. Equally, it is unknown whether or not - - -

CALLINAN J: What does it matter whether they came first or last?

MR MULLANY: It matters to this extent, your Honour, it makes the characterisation employed by the Court of Appeal much more difficult. It makes the proposition we advance, that they were all properly to be seen as part of the one criminal transaction, much more easily able to be accommodated. If there is any doubt about that, particularly in the context of a Crown appeal, then in accordance with established principles, your Honours, the benefit should have lay in favour of the applicant.

GUMMOW J: Why, as a matter of interest, do we not know the order of events?

MR MULLANY: The only answer that I can give to that question, your Honour, is this. It was unclear – both the sentencing judge and the Court of Criminal Appeal I think said – even after the interview. The second thing I wanted to say about what your Honour Justice Callinan put to me was this, compare what occurred in this case - - -

GUMMOW J: I do not quite understand why your client gets the benefit of that at this level of the trial process?

MR MULLANY: He only gets the benefit at this level, your Honour, to the extent that it goes to illustrate that what occurred below was an error of principle, which we characterise as one of substantial importance for criminal law in this country. What occurred below, once that key was identified and unlocked that door, was quite at odds with what occurs normally on a Crown appeal. Whatever one might think of what the learned sentencing judge did, what one cannot do, in our respectful submission, is clarify that as clearly erroneous and thereby draw an adverse inference to the manifest disadvantage of this particular applicant.

The second thing I wanted to say in response to what your Honour Justice Callinan put to me is this. Compare what occurred here to what occurred in the came of Oldham, a case referred to by my learned friend, case No 7 on his list, which stands in stark contrast. That case also concerned a question of accumulation and concurrency. The Court of Criminal Appeal referred to it at 20 to 21 and at AB 32. Far from those decisions being compatible, they are uncomfortably at odds.

I say that because the sentence for the murder was ordered to be served concurrently with those for the sexual assaults. It was the sexual assaults which were ordered to be served cumulatively. Why is that relevant? It is relevant insofar as we would characterise the sexual and non-sexual assaults as part of the one criminal event.

Your Honours, if it is accepted that where two or more offences are committed in the course of one transaction all sentences should be concurrent and the question that arises is to what extent is the “one transaction” rule qualified by the issue of character of the offending. To urge this Court to clarify the matter is not, in our respectful submission - - -

GUMMOW J: How can we clarify it?

MR MULLANY: Your Honour, it is one of those difficult questions that we are always confronted with. It is like saying, “What is the content of duty?” The obligation or the necessity, I should say, to clarify something like this does not mean that if it is a difficult task it should not be embraced. One might say simply this, in a circumstance like the one that the Court of Criminal Appeal was confronted with, not one particular element, character, is all determinative. We know it was in this case because there was no other feature highlighted by his Honour Justice McKechnie which lifted it out of the ordinary into the class of exceptional.

By asking your Honours to entertain that appeal we do not seek the articulation of some hard and fast rule capable of application in every case to give a particular outcome. What we ask your Honours to do is to take steps now to eliminate, as best as one is able, the possibility of increasing inconsistent decisions and to provide some guidance to sentencing courts in relation to this matter.

As Auxiliary Justice Einfeld observed in Pieri at 49 of that case, referred to in the judgment of the Court of Criminal Appeal:

The authorities do not seem to address expressly the possibility of making some sentences partly cumulative and partly consecutive –

nor is it clear, your Honours, how the principles thought to be relevant apply in that particular context. The clarification that we seek we say, with respect, is overdue, lest matters be left in a state which is apt to mask what are in truth policy-directed decisions and which facilitate the production of inconsistent results.

Your Honours, can I move to the second of the two questions we identify? The inferential process by which error on the part of the learned sentencing judge was said to be discernable and the context in which it occurred are cause for concern, in our submission. Her Honour did not indicate why she had decided to order that the sentences be imposed concurrently. On appeal, that was said to be significant. In our submission it is not.

Your Honours, may we say two things. Firstly, the fact that her Honour did not state expressly why she adopted the course that she did does not give rise to the inference that she erred in that adoption. It is clear, in our submission, that her Honour viewed the circumstances of this case to be such that the presumption of concurrency should be allowed to run its course.

The second thing we want to say, your Honours, is this. That silence does not warrant the drawing of an inference on a Crown appeal to the manifest disadvantage of an offender who has already been sentenced to a very significant term of imprisonment. Inferential reasoning is, of course, employed in the courts every day. The difficulty, your Honours in this case, is that that was employed to the manifest disadvantage in circumstances which are at odds with clearly established principle.

The approach that was adopted below runs counter to that principle that in sentencing inferences contrary to offenders are not likely to be drawn. It also sits uncomfortably, in our submission, with the principle that the Crown is normally obliged to demonstrate very clearly on their appeals that error occurred and that appellate interference is justified.

What occurred below, that is at first instance, on any view cannot be characterised, in our respectful submission, as clearly erroneous. It is at odds with the traditional attitude of judicial restraint that is normally taken in these matters. In our respectful submission, your Honours ought intervene to confirm that and to resolve the tension which has now emerged between the principle employed below and the principles in relation to Crown appeals to which I have referred.

The last thing I want to say, your Honours, concerns the suitability of this case to ventilate the two questions that we have identified. We say that this is an ideal vehicle to do that and we say that there are a number of features which make that so. Save for the decision of the sentencing judge in relation to final structure, the exercise of her Honour’s discretion has not been impugned. The sole error identified was the decision to make all sentences concurrent.

The process employed said to illuminate that error is clear. There is no issue arising in relation to the length of the head sentence or in relation to any of the sentences imposed for each individual offence. No issue arises concerning totality. There was no criticism of the discounts applied. Your Honours have not had the opportunity to examine in detail the content and application of the rule to which I have referred in circumstances where there has been partial or full accumulation.

The structure of sentences is a vital component in the sentencing process. Clarification of the principles governing that aspect of the process would quite obviously have significant ramifications for the criminal law in
this country. For the reasons we have outlined we say that the point has now been reached where that is necessary.

So far as the second question that we have identified is concerned, what occurred there, your Honours, should be reversed. We say that because the ruling has worked an injustice in this case, it stands at odds with established principle concerning the determination of Crown appeals and it sets a precedent which is of some concern. Your Honours, those are the submissions we wish to advance.

GUMMOW J: Thank you, Mr Mullany. We do not need to call on you, Mr Cock.

Despite what has been said in support of the application, to us the decision of the Court of Criminal Appeal was correct and, accordingly, there are no prospects of success on an appeal to this Court. Accordingly, special leave is refused.

The Court will adjourn to 9.30 am on Monday, 3 November in Hobart.

AT 11.23 AM THE MATTER WAS CONCLUDED