Adams v The Queen [2004] HCATrans 11 (13 February 2004)

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Adams v The Queen [2004] HCATrans 11 (13 February 2004)

Last Updated: 23 February 2004

[2004] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S120 of 2003

B e t w e e n -

DEBBIE MARIE ADAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2004, AT 9.50 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MS S.E. PRITCHARD. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Mr Game.

MR GAME: If the Court pleases. The argument I wish to put is basically the argument which appears in the written submissions. Could I take your Honours first to the judgment on the fixing of the limiting term of Justice Sperling at application book page 56. Page 56, paragraph 7, in the second half of the paragraph his Honour said:

I am, therefore, to make a determination having regard to the objective gravity of the offences and the subjective circumstances of the offender . . . The considerations include the offender’s mental state at the time of the offences and since.

On page 58 his Honour referred to the evidence of Doctors Westmore, Wilcox and Brown which he had heard on the special hearing into whether or not, on the evidence available, Ms Adams has committed the offences. Then in paragraph 12 he said:

The offender had limited capacity to control her behaviour in this respect.

On our case, that is a finding which is reflected at page 60 of the application book, paragraph 24. His Honour makes a finding that there is a:

very low level of moral culpability involved in either offence by reason of the offender’s mental state.

GLEESON CJ: It has been said in some cases, has it not, Mr Game, that the incapacity of an offender to exercise self-control against violence is one of those factors that points both ways in a sentencing exercise?

MR GAME: Your Honour, that is no doubt correct and we say that is the problem that cases like this raise. There is no doubt that this particular applicant, in our submission, has very low moral culpability because she cannot control her actions. At the same time it is fair to say that she has presented and, at the present, presents a danger to herself and others.

GLEESON CJ: It is the Veen problem, is it not?

MR GAME: It is the Veen problem, but we say that the Veen problem cannot work if the level of culpability is very low and the reason why it cannot work is this. We say that objective gravity must be a measure of culpability and it is a very simple argument. A measure of culpability must be based on the physical and mental elements of the crime so, in a sense, it is a measure of culpability. We say that proportionality, which is the limiting principle expressed in Veen [No 1] and Veen [No 2], means that you cannot fix a longer sentence than the longest sentence justified for the crime actually committed, having regard to the culpability.

We accept, naturally, that protection of the community is relevant in fixing a sentence, but we say that there is a fundamental problem in the application of the proportionality principle when you come to a case like this because we say, in effect, that logic must demand that proportionality is constrained by culpability. If culpability is very low and you bring in protection of the community, as it were as a freestanding principle, then you have actually thrown away the principle of proportionality and maybe there is some other principle at work but it cannot be the proportionality principle.

In one sense, Veen was not a difficult case because the Court was able to say that the level of culpability was high in Veen. So, in a theoretical sense, you might say that the collar or cap either way was fairly wide, whereas in this case, where you have a specific finding by the sentencing judge that the level of culpability is low, then you cannot accommodate the Veen principle.

GLEESON CJ: Where did the sentencing judge deal with the need to protect the community?

MR GAME: He dealt with it in several places, but I regret to say what I have marked up is the passages in the Court of Criminal Appeal where they accepted that he had had regard to it, which appears at page 74, line 30. I will just get my junior to give the actual reference in a moment but page 74, line 30, the Court of Criminal Appeal accepted that his Honour was alive to the issues of “protection of the community”. Then at page 78, after quoting the two relevant passages and we will just find the relevant page in a moment, but at page 77 the two relevant passages - - -

GLEESON CJ: Just a minute. What the Court of Criminal Appeal quoted from on page 74 was some exchange during the course of evidence between a judge and a witness.

MR GAME: Sorry. What the court said is at page 78. It said:

It cannot be fairly said that the judge did not consider the issues of the protection of the community and her dangerousness.

So the court has not proceeded on the basis that the sentencing judge did not have regard to protection of the community and dangerousness. The court proceeded on the basis that, in effect, there was a House v The King latent error but actually, if you go on in the judgment of the Court of Criminal Appeal at page 79, you see at paragraph 42 that the court said that the third category of House v The King was unreasonable.

My opponent has given me the references. At page 58, line 45, at paragraph 16, and then the discussion of it continues. Then you see on page 59 a reference to the “balancing exercise”. So we would say that it is clear that his Honour was alive to the Veen [No 2] problem. I think those are the passages.

If I could come back to the Court of Criminal Appeal, when the court said the judge could not have adequately taken into account the objective gravity of the offences, if we are talking about culpability, that flies in the face of what the judge said. If we are talking about the physical elements of the crime, then that does not fully answer the question about how you apply proportionality in a case such as this. Likewise, we see similar comments at paragraph 47 on page 80 and likewise, page 83 at paragraphs 54 and 55.

Then there was evidence that her situation had, in fact, deteriorated - she had, over time. Your Honours may appreciate she was 16 at the beginning of these events. She went from Yasmar Juvenile Justice Centre to Mulawa Psychiatric Unit to a segregation unit and now she is in segregation in a male gaol, although she is a forensic patient under the Mental Health Act and she is liable to stay in the custody of the Mental Health Review Tribunal as a forensic patient because unless they conclude that she is not unsafe, they are bound to, in effect, keep her as a forensic patient, as a continued-treatment patient.

GLEESON CJ: That is while she is subject to the sentence, the limiting - - -

MR GAME: No, your Honour. When the sentence is over, when the 13 years have passed, she will remain, in effect, under the jurisdiction of the Mental Health Review Tribunal because she can only be released if they are satisfied, in effect, that she does not present a danger to the community, that is to say, there is a regime under the Mental Health Act which will apply to her as a person suffering from mental illness, as is defined under the Mental Health Act. So, in effect, she is a forensic patient now but she is in a gaol but she will eventually be effectively a forensic patient, being a continued-treatment patient, after the 13 years have passed.

GLEESON CJ: Where, in custody?

MR GAME: In custody, but not in a gaol.

GLEESON CJ: What in?

MR GAME: They will have to find a place for - - -

GLEESON CJ: Morisset, or somewhere like that?

MR GAME: She is currently in the segregation unit in Parklea because for some reason there is no place in New South Wales for housing female prisoners who have this kind of problem. If the limiting term was eight years or six years she would still be dealt with as a continued-treatment patient by the Mental Health Service.

We appreciate that this case raises difficult problems in sentencing, but we would say the Court should not be deterred by the difficult and imponderable nature of dealing with cases such as these. If I could take your Honours briefly to Veen [No 2] [1988] HCA 14; 164 CLR 465, and only for the purpose of, as it were, demonstrating how difficult the problem is, the relevant passage that starts on page 473 and I will not read that, but if you go to 474, the first paragraph, it speaks in terms of:

protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.

Then in the next paragraph there is the sentence:

No judgment would have given support to a sentence exceeding what was truly proportionate.

Then if you go to page 477 there is a discussion of the problem that your Honour the Chief Justice pointed out to me immediately and is clearly the most obviously pressing problem in a case such as this. The problem pointed out by Baroness Wootton, and I will not read it out to your Honours, but if you just read those couple of sentences, that is the problem.

In effect, the level of responsibility is at a minimum. She verges on mental illness and incontrollable impulse and yet those are the factors that
make her dangerous. We say that as a matter of logic and principle that cannot be accommodated within the proportionality principles enunciated in Veen [No 2]. We say that it is a question of the utmost importance in sentencing and if Veen [No 2] has to be revisited or refined, even possibly in a way adverse to the interests of this applicant, we would submit the case is clearly one that raises a question of general importance.

GLEESON CJ: On one view of the matter Veen [No 2] was a revisiting of Veen [No 1].

MR GAME: Well, pushed into more extreme circumstances. We say this case is the hard case. This case is where culpability really is at rock bottom and dangerousness is high. I could go on but that, in substance, is our argument and we say it does warrant a grant of special leave.

GLEESON CJ: Thank you, Mr Game. We do not need to hear you, Mr Smith.

In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

We are going to adjourn for a short time to reconstitute.

AT 10.03 AM THE MATTER WAS CONCLUDED