PP v The Queen [2004] HCATrans 207 (18 June 2004)

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PP v The Queen [2004] HCATrans 207 (18 June 2004)

Last Updated: 29 June 2004

[2004] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M260 of 2003

B e t w e e n -

PP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 10.59 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC: If the Court pleases, I appear with my learned friend, MR L.C. CARTER. (instructed by Haines & Polites)

MR R.A. ELSTON: If the Court pleases, I appear with my learned friend, MS R.J. ORR for the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Richter.

MR RICHTER: If the Court pleases. The issues of general public importance that are raised are of fundamental significance to the sentencing of children, technically so-called, and without any emotional connotation to the word “children” as defined in the legislation, when they are sentenced for serious offences. In this particular instance the charge was initially murder. The applicant was acquitted of murder, convicted of manslaughter. The sentencing proceeded on the basis both in front of his Honour Justice Nettle and in the Court of Appeal that this was a situation in which it was manslaughter by unlawful and dangerous act. So that this is not a matter that needs to - - -

HAYNE J: What was the unlawful and dangerous act?

MR RICHTER: Assault with a knife.

HAYNE J: Stabbing the victim twice?

MR RICHTER: Yes, your Honour. In fact, having the knife, running after the victim for about 50 metres and stabbing the victim twice. There was some discussion and some evidence about the possibility of – self-defence was run by the applicant. The jury obviously failed to accept self-defence, but ultimately in terms of fact finding for sentencing purposes, his Honour Justice Nettle took the view that he would not sentence him on the basis of voluntary manslaughter but rather involuntary manslaughter in the sense of an unlawful and dangerous act.

So far as that is concerned, both his Honour Justice Nettle and the Court of Appeal, of course, make the point that manslaughter is a serious offence. It is and there is no gainsaying it. In fact, so far as the Court of Appeal is concerned, at one stage it characterises this as a serious case of manslaughter. I ask the rhetorical question of when is a case of manslaughter not a serious case involving the loss of life? If one looks at the circumstances of this case, it would hardly be possible to categorise it as being at the upper ranges of manslaughter as a manslaughter given what happened.

There was a previous case in front of the High Court recently, GAS, involving two appellants who were at the time technically children, which involved a horrific home invasion, horrific beating up with possible sexual overtones of an elderly woman and killing her. This case involved a boy of 15 of exemplary background who was working at a fish and chip shop who is beset by a group of people intent on doing him harm for a reason which is not valid, as it turns out. They think he had done something which he had not done at some dance.

He sees his brother being assailed by those people outside the fish and chip shop where he works two nights a week in what one might be considered circumstances of considerable merit in terms of paying his way through the world even at the tender age of 15. He sees his brother assaulted by those assailants. He picks up a knife which is a knife with which he works. It is not as though he brings a weapon. He picks up the knife and he goes out. The melee looks like it is dying down but through some episode it tends to revive. He chases the deceased who is slightly older than him and in the course of the melee, a struggle which the jury found did not include self-defence, he stabs him. The stabbing is such that it produces a rupturing of the aorta from the side, which is a bit unusual – it is not straight on – and the victim dies.

In these situations it is difficult to consider that a 15-year-old is a person who in the circumstances of his background is a person who will either constitute a danger to the community or is a person whom I described in submissions to the Court of Appeal as a wicked person in the sense of there has to be a judgment formed that there are evil tendencies in the child which require treatment other than the prima facie treatment that we say is appropriate in the case of a child even though it be a case of homicide.

HAYNE J: That is, do you say that prima facie any young offender guilty of homicide should receive youth training? Is that the bottom line?

MR RICHTER: No, your Honour. There is a distinction between a young offender and a child - that is for one thing – nor do I say that any child – and we are dealing with a child here both at the time of offence and sentence – must receive a young training centre, not at all. But I make the distinctions here that because of the sentencing considerations which inhere in the treatment of children as spelt out in the Children and Young Persons Act, those considerations, one would need to have something significant to shift the prima facie position.

You start off with what in computer language might be called the default position. The default position is that deterrence is not an issue for a child. On the other hand, the protection of the public as a matter of high public policy is. The protection of the public is recognised in the cases to be achieved in the case of children by rehabilitating them. Therefore, it is a matter of high public policy that they should be treated in a way that returns them to the community as citizens who are not dangerous. On the other hand, you may get a case of a 14-year-old who kidnaps a child, tortures the child, does all sorts of appalling acts and kills the child. Whether it be murder or manslaughter, in those situations there is the contra indicative consideration for the protection of the public, if nothing else, that raises the notion that this is a particularly evil child.

So that we do not say that whenever a child commits homicide, that child goes to a youth training centre. What we say is that the prima facie default position is that the considerations in the Young Persons Act which do not include deterrence apply. Those automatically apply as the mandatory considerations when the case is dealt with in the Children’s Court but are engaged in the right case which is dealt with in the superior courts. In this case, of course, those principles were in fact found to be engaged.

So that the notion of deterrence, in my respectful submission, when it is dealing with a child even in a homicide and when dealing with the child in a superior court, which is where it has to be dealt with because the Children’s Court has no jurisdiction over homicide, where the Sentencing Act provides that the powers of the Children’s Court and the considerations in the Children’s Court may apply, once they are said to apply, once they are said to be engaged, you deal with the child on the basis that general deterrence takes a backseat. That is a good proposition both in terms of good sense and good public policy in the interests of the law and not only in the interests of the law but obviously in the interests of the child.

What happened here, in our respectful submission, is that there are errors in the approach which occurred which are of considerable significance. Those errors really, in my respectful submission, emerge from the sort of muddled thinking that is involved in some sort of determination of how long a person ought to be detained for a particular offence. If one says for this crime the detention period really should be more than three years, therefore youth training centre is out and a term of adult imprisonment is in, is the wrong approach, in my respectful submission.

For a child, the first thing that you consider is whether or not that child, if it is considered that the child should be detained, should be detained in a youth training centre unless there are serious contra indicta to considerations such as danger, such as background, such as tendency. In this case it is a unique case in the sense that everyone says these considerations simply do not apply. Indeed, one of the arguments in our learned friend’s response indicates just how absurd the situation would be if their position was adopted, because as an alternative argument they say this young man, as he is – child, as he was – is obviously such a perfect specimen, he does not need rehabilitation. Therefore, the principal consideration for dealing with children does not apply to him.

That seems to be an alternative argument in the answer by our learned friends. In my respectful submission, that is an absurd argument, with the greatest respect. The fact that a child has been rehabilitated and is safely considered to be safe for the community and safely rehabilitated and safe for restoration to the community militates, if anything, towards making it a non-detention disposition altogether. In front of his Honour Justice Nettle, of course, what happened was that Mr Bourke, who appeared for the applicant, in fact sought probation, not a detention disposition. The bottom line was that if there was to be detention – and granted in homicide one has a feeling of saying the community would not really like even a child not to be detained for a period for a homicide, so the fall-back position is youth training centre.

What happened in this particular case was – and we go and give details in our outline of submissions in relation to that – that the decision for some reason which, in my respectful submission, is derived from an analysis of the wrong cases, culpable driving cases usually involving people who are not children, people of the age of 19 and so on, or the one case, GAS, which involved particularly brutal and appalling conduct by children, led to the conclusion that for this manslaughter, a period of detention greater than three years was appropriate – not for reasons of public policy in terms of deterrence, because deterrence really is not significant for children in the way that they act and the way that they perform, but for reasons of looking at the notion of what happens to people who are charged with culpable driving, for which very different considerations apply, in my respectful submission, because young persons over the age of 17, for example, who drive cars and commit offences of culpable driving are not in the same category as children. By definition it is young people who drive with licences, not children.

Once the decision has been reached that three years is not enough - and there is not, in my respectful submission, a legitimate basis for taking that as a conclusion – then it follows from there that one scraps the whole treatment of children in relation to sentencing and one says, “Although you were 15, you’re a child and you’re still a child in terms of sentencing. I’m sending you to an adult prison”. So there has to be a framework of principle, in my respectful submission, dealing with children as to when it is that the decision is made to sentence someone as an adult as against sentencing someone as a child. That matter has not had the attention of this Court and it is time that it did, in our respectful submission. It is a vital and important matter on which courts need guidance.

The interesting thing in this case, of course, is that the Court of Appeal once again, although not clearly espousing the view, what they actually did indicate that the notion that they took the view that a period of detention of three years was not sufficient and, therefore, it was appropriate to deal with the applicant as an adult offender. But they were wrong in a sense. What they obviously felt was that Justice Nettle erred in his own assessments. In other words, when Justice Nettle fixed a sentence of six with a minimum of four, they thought that was manifestly excessive, or rather the four was manifestly excessive. They did not proceed just to alter the minimum of four. They proceeded to resentence the whole thing and did so on the basis of fixing a sentence of five years with a minimum of two and a half.

When one analyses what they did, in my respectful submission, they, I hate to say it, failed to grasp the nettle properly because what they were saying was that this child should be locked up for at least two and a half years in an adult prison. If that is the appropriate view of the child, then what is wrong with a sentence of three years youth training? In fact, that is the sentence that ought to have been applied upon the setting aside of the sentence imposed by his Honour Justice Nettle.

In our respectful submission, the Court of Appeal exhibited error and exhibited error of principle going to the very important considerations. They, in fact, inverted the prima facie position, if I could say so, as far as children are concerned. I will take the Court to page 119 of the application book. It is paragraph 11 of the judgment of Justice Callaway. What his Honour says is this:

As to the first issue, I agree with the reasons the judge gave for rejecting the option of detention in a youth training centre. His Honour said -

and I will not read the whole passage because I will go to the last three lines which encapsulate what we say is, in fact, the reversal of the inquiry re the starting position, namely a prima facie position for youth training centre, where his Honour Justice Nettle said:

Consequently, I have given a great deal of thought as to whether it would be appropriate to make a Youth Training Centre order instead of sentencing you to imprisonment.

That has to do with a reversal of the notion of not having to give thought to whether it is appropriate to make a youth training centre order, but the process of thinking has to be, “Prima facie it ought to be youth training centre and I have given it a great deal of thought as to whether I should instead sentence you to imprisonment”. There is a philosophical inversion there which is a matter of high principle and it is a matter of high principle that this Court ought to grasp.

In the next passage which is adopted by Justice Callaway with approval, once again if we go to the bottom of that paragraph, the last three and a half lines, his Honour Justice Callaway says this:

I do not consider that a head sentence of only three years detention is adequate to punish you to the extent which is just in all the circumstances.”

That error compounds the earlier error. It shows an underlying tendency to think of dealing with children and youth training centre as a punishment. Punishment there is in the sense that a deprivation of liberty is always a punishment, but the object of youth training centre is not punishment. The object of youth training centres as established is rehabilitation.

So that that compounds the reversal of the course of thinking and demonstrates for a second time that there was error. That was not corrected in the Court of Appeal. Indeed, Justice Nettle’s error of approach was not corrected. Indeed, the Court of Appeal perpetuated it, in my respectful submission, and in doing so created a situation where hereafter in Victoria, and, indeed, to the extent that what the Court of Appeal said will be referred to in other States, and it seems to go contrary to some of the statements of principle in New South Wales, for example, although I hate to go to New South Wales because a comparison of the figures tends to demonstrate that there is an arithmetic leap in New South Wales as against Victoria in terms of sentencing. Be that as it may, the uttered principles in terms of the prima facie presumption against imprisonment for children would be undermined by this judgment and are undermined by this judgment because it turns it topsy-turvy, in my respectful submission.

The other matter of error is this, and it comes at page 120 of the application book. His Honour Justice Callaway says:

The difficulty was that all the relevant purposes of sentencing could not be achieved by three years’ detention in a youth training centre.

That is a reason for not awarding a youth training centre sentence. The fact is no one can ever achieve all the principles, all the purposes, but the principal purpose in this case would have been achieved and is acknowledged to have been achieved by the sentencing judge and the Court of Appeal. I see the red light, your Honours.

GLEESON CJ: Thank you, Mr Richter. We do not need to hear you, Mr Elston.

The Court is of the view that this case does not raise an issue of principle suitable to a grant of special leave to appeal, and we are not persuaded that the interests of justice require such a grant. The application is dismissed.

AT 11.20 AM THE MATTER WAS CONCLUDED