Payne v The Queen [2004] HCATrans 109 (2 April 2004)

--

Payne v The Queen [2004] HCATrans 109 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P81 of 2002

B e t w e e n -

ROGER SIDNEY WILLIAM PAYNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 12.40 PM

Copyright in the High Court of Australia

MR J.R. NOBLE: May it please the Court, I appear for the applicant. (instructed by Jeremy Noble)

MR R.E. COCK, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J: Yes, Mr Noble.

MR NOBLE: Your Honours, this is an appeal against sentence, the material facts of which are set out at page 55 of the application book. I ought to seek to confirm at this stage that your Honours have in your possession the supplementary application book which was filed just within the requisite time, I think, on Wednesday morning.

McHUGH J: Yes.

MR NOBLE: It is submitted, your Honours, that this application ought to attract a grant of special leave on two prime bases, the first of which is effectively that the applicant suffered a significant injustice in the Court of Criminal Appeal affirming the sentence that was originally imposed by the District Court and, secondly, that this Court ought to give consideration to this issue as the High Court has not squarely considered the issue of mental illness as a mitigating factor in relation to sentencing of criminal offenders for some time.

If I can elaborate firstly on the first of those points which we say ought to attract a grant of special leave, that is that the applicant has suffered a significant injustice. Your Honours will be conversant with the facts of this appeal as set out in the application book. We say that whilst it is accepted that on its face this is a case where there was a difference of view between the majority and the minority in the Court of Appeal on a question of fact and discretion as I have indicated and submitted, that there was an error in the approach of the majority in arriving at their conclusion and that error was of significant importance so as to work an injustice against the applicant. Effectively, we say that the majority of the Court of Appeal, being Justices Anderson and Parker, in affirming the sentence originally imposed on the applicant, being a sentence of 12 years imprisonment, failed to give adequate weight to the mitigating factor being the applicant’s mental illness that he was suffering at the time he committed the offences in question.

Your Honours will no doubt be aware that the applicant in this case was a man of 55 years of age. Prior to coming to the attention of the courts he had no criminal record whatsoever before committing the offences in question and his character, which is outlined in references that are before this Court in the supplementary application book, it was of the highest order. This was a man who had received the Order of Australia, was an ex-military serviceman and had no history of the type of psychiatric illness that he ended up suffering from and committing these offences whilst suffering from, namely, manic depression or bipolar disorder.

This man suffered from depression in or around 1994, attended his psychiatrist and was medicated with anti-depressive medication. That seemed to stabilise him up until the time of commission of these offences when all the medical reports indicate he suffered a hypo-manic state and a heightened state of mania associated with the precipitation of bipolar disorder.

McHUGH J: Mr Noble, it is a tragic case. You have a man with an exemplary character, outstanding military service, references from General Cosgrove and he has the Order of Australia Military Division. We do not sit as a general court of criminal appeal. It seems to me at the moment that you are just saying that by reason of the mental condition that he had at the time that the sentence is manifestly excessive. Is there anything further that you have to say? That will not get you special leave to appeal in this Court.

MR NOBLE: Your Honour, we say in addition to that point that this Court has not squarely considered the issue of mental illness as a mitigating factor in sentencing criminal offenders.

McHUGH J: But how can we? I mean, what are we going to say? Do you take into account? That was what happened here. Both the primary judge and the Court of Criminal Appeal accepted that at the time of the commission of the offences the applicant was suffering from a mental disorder. You would say they just did not give it sufficient weight. What point of principle could we say, other than it is a matter that is to be taken into account?

MR NOBLE: We say that it is desirable that the highest Court in the land determine the relevant law that is to be applied by sentencing courts in sentencing offenders suffering from mental illness and it is - - -

McHUGH J: But what is the principle? How would you formulate the principle?

MR NOBLE: Well, the principle is effectively that the seriousness of the offence must be weighed against the state of mind of the offender by reason of the mental illness at the time he committed the offences. The primary mitigating factor in relation to mental illness is that it reduces the factor of general deterrence, and to a degree personal deterrence in operating so as to reduce the sentence imposed.

McHUGH J: Yes.

MR NOBLE: Now, the law on that point is largely governed by the case of the R v Engert, which is a New South Wales decision, and we say that this area of law warrants consideration by the High Court, simply for the reason that offenders suffering from mental illnesses are so prevalent in modern times that a definitive determination of the principles to be applied in sentencing such individuals ought to come from the High Court.

McHUGH J: But why? We only take cases on if we think that (a) that they are wrong and (b) that they raise some question of fundamental importance which the Court can make some contribution to.

MR NOBLE: Your Honour, we do also say that this case was fundamentally wrong in that inadequate weight was given to the mental state. This is a man 55 years of age, exemplary character, never suffered from a psychiatric disorder before in his life and no criminal record who ends up with a term of imprisonment for 12 years, or this set of offences, whilst it is conceded they are serious offences, they were matched by the seriousness of the mental disorder that he was suffering from at the time.

McHUGH J: Well, it is a question of judgment.

MR NOBLE: It is.

McHUGH J: The sentence is high. There is no doubt about that, given his mental condition. We do not sit here to grant special leave on sentencing matters unless there is some fundamental point of principle involved which requires us to take the case on to state the law for Australia.

MR NOBLE: Your Honour, we say that there is a fundamental error in respect of this case. Your Honour has correctly pointed out that it is a matter of discretion. We say the error in discretion here is such that it warrants the intervention of this Court. We say this man’s past was such, and the illness that he was suffering from at the time that he committed these offences was such that it clearly ought to have compelled the Court of Appeal to give higher regard to the degree to which this mental illness principally prevented this man from controlling his actions.

We say that this is a case where the body of material before both the inferior and superior court was so great that it warrants a revisiting of the discretion because we say the court got it that wrong. Your Honour, I am not going to labour on with my submissions.

McHUGH J: Yes.

MR NOBLE: It is a point that your Honours may well have formed a firm view of before I got to my feet.

McHUGH J: No, we never form a firm view. You would be surprised at the number of cases where a provisional view of a judge is changed because of some point that counsel is able to bring up.

MR NOBLE: If I can just end on this note. We say that this is a principle that warrants the intervention of this Court for the reason that the High Court has not dealt with the issue of mental illness and sentencing of criminal offenders. The case of Veen [No 2] was a decision principally involving proportionality of sentence and sentencing offenders to terms of imprisonment for reasons other than in relation to the seriousness of the offence. The leading authority on the question of sentencing of mentally impaired defendants is that of Engert, which is a decision of the New South Wales Court of Appeal, and we say that the issue is of such importance that it warrants this Court’s intervention. May it please the Court.

McHUGH J: Yes, thank you. We need not hear you, Mr Cock.

In this matter, both the primary judge and the Court of Criminal Appeal accepted that at the time of the applicant’s commission of the offences to which he pleaded guilty, he was suffering from a mental disorder. The applicant would seek to say in this Court that, having regard to that fact, the sentences upon him were manifestly excessive and that the learned judges did not give the mental illness element sufficient weight in the sentencing process.

No point of general application would arise. We are not persuaded it is arguable that there has been any departure from applicable principle, or any miscarriage of justice in the matter. Mr Noble, for the applicant, said the issue of mental illness was such an important factor that this Court should lay down rules for its application in sentencing convicted persons, but it is not the function of this Court to grant leave in any matter unless the case itself raises some point of law of general importance, or that there is otherwise a miscarriage of justice in the particular matter. Accordingly, special leave to appeal is refused.

The Court will now adjourn to reconstitute.

AT 12.53 PM THE MATTER WAS CONCLUDED