Killick v The Queen [2004] HCATrans 79 (16 March 2004)

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Killick v The Queen [2004] HCATrans 79 (16 March 2004)

Last Updated: 23 March 2004

[2004] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S401 and S402 of 2002

B e t w e e n -

JOHN REGINALD KILLICK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 MARCH 2004, AT 2.14 PM

Copyright in the High Court of Australia

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

GUMMOW J: Mrs Killick, come forward to the Bar table if you wish. Will you sit down? We will call on Mr Smith first and then if you want to add anything do so, if it is relevant.

MRS G. KILLICK: Yes, your Honour.

GUMMOW J: Yes, Mr Smith.

MR SMITH: If the Court pleases, in our submission - - -

KIRBY J: Mr Smith, I will not repeat what I said in the case of Dudko, but my views are the same and they apply to this case as well.

MR SMITH: Thank you. In our submission, the Court of Criminal Appeal found some technical errors in the original sentencing, in which there had been gaps apparently left in between the period of the head sentence, without the non-parole period, and the commencement of the next sentences. As a result of that, they reduced the sentences to a total of 23 years 6 months total head sentence, commencing on 4 March 1999, expiring on 3 September 2022. At page 158 of the appeal book - - -

KIRBY J: Can I mention a matter that concerns me, as you have explained what has happened in the sentence, and it is this. Did the Court of Criminal Appeal, in its application of the totality principle, do what I understood to be the requirement of that principle, that is to say, that at the end of achieving the mathematics, look back on the entirety of the sentence and ask, “Is the sentence that comes from the mathematics a crushing sentence such as should not imposed, or should be reduced in order to deal with that aspect of totality?”

Now, I could not find where the court looked at that issue. There is a problem in the sum of the parts and the mathematics, producing a result which intuitive commonsense ultimately suggests is crushing, and, therefore, unsuitable, looking at the totality of the criminality. Now, has that been specifically addressed by the Court of Criminal Appeal or not?

MR SMITH: Pardon me, your Honour.

GUMMOW J: Take a minute, Mr Smith.

MR SMITH: In relation to the question of totality, your Honours, there is a discussion, commencing at page 94, of Pearce and Mill, which are two decisions of this Court, at paragraphs 70 and 71, and they then looked at the problems they said arose out of section 55 of the Crimes (Sentencing Procedure) Act.

KIRBY J: Well, it is true, as you point out, that in quoting what Justices McHugh, Hayne and Callinan said in Pearce, they specifically address the question of totality. Similarly, Mill deals with the principle of totality, which is specifically mentioned at 94. It is just a question of whether or not their Honours having noted the point, then, as it were, applied it. I suppose you would say, well, they noted it just before they did the mathematics on the next page and referred to the total sentence on the page that followed, that is, 95 and 96 of the application book.

MR SMITH: Yes, your Honour.

KIRBY J: What is your submission on totality? Assume we were in the Court of Criminal Appeal. What would you be saying to a suggestion that the net result, whilst the product of mathematics, is a crushing sentence which is out of proportion to the totality of the criminality?

MR SMITH: I would submit, in that situation, your Honours, that this is an applicant who, firstly, has a very poor criminal record, so he is not, in a sense, going to get the benefit of good character or any of those matters in the past, and that these particular offences are of quite severe criminality and that the number of the sentences that he was given in relation to this matter were considered manifestly inadequate, or, certainly, light by this court, the Court of Criminal Appeal, in this matter.

KIRBY J: Would you explain to me a little the offence of shooting in the direction of the police constable. Was there any risk at all that the police constable’s life or limb were put in danger by that?

MR SMITH: As I understand it, there was not evidence that – well, there is, if you aim straight, or if the shot ricochets, or matters of that sort. I do not think there was specific evidence that he had to evade it or something, otherwise he would have been hit - - -

KIRBY J: Judge Mahoney accepted that he did not intend to kill the police officer. I think that is correct?

MR SMITH: As I understand it, yes, your Honour.

KIRBY J: But he could have been charged with an offence that was more serious than the one he was charged with.

MR SMITH: Yes.

KIRBY J: I mean, the fact is, if you shoot, you have to be aware of ricocheting bullets and - - -

MR SMITH: There is the offence, of course – I think it may be a 25 year offence – of using a weapon to avoid arrest. He was not charged with that offence, as I understand it.

KIRBY J: And it is a serious offence. It always has been looked at by courts as a serious offence – shooting at law officers.

MR SMITH: It certainly is, your Honour. In fact there has been – dare I say it – a guideline judgment given on actions against police in recent years, because of the regularity of those types of offences and the need, perhaps, to publicise the need for deterrence of such things. In legislation that has been passed by the New South Wales Parliament, if a policeman is the subject of being shot or injured there is a minimum sentencing regime which is aggravated in such a case. It is a circumstance of aggravation. So that these are certainly taken by the law of this State to be very serious matters. I do not think, your Honours, that there is any particular consideration of that matter that your Honour Mr Justice Kirby has - - -

KIRBY J: It is just the total amount. It is equivalent to very serious homicide punishment.

MR SMITH: Well, yes, but when you look at it, there are a number of separate incidents involved, of a very serious nature: armed robberies, shooting at people, the actual escape itself, the use of violence, the joint criminal enterprising, as it were, pirating a helicopter and getting it to land away from its path, endangering the life of the helicopter pilot and perhaps others if the helicopter had crashed. It was a dramatic matter, but they were also very serious offences, and when somebody has the previous record of a man like this, it tends to lead to a larger sentence. This is - - -

GUMMOW J: Now – I am sorry, go on.

MR SMITH: I am saying, your Honour, I know it is comparatively a heavy sentence, but there are very serious offences there. The armed robbery offences carry 20 years, I think it is, and some of the others carry quite significant sentences. He did not get the maximum. It was not near the maximum, really.

HEYDON J: The trial judge did say – going back to one of Justice Kirby’s earlier questions – that the off duty Police Constable Rostrom:

deserves special commendation for having put his own safety at grave risk –

So there must have been some danger arising from the shooting.

MR SMITH: Yes, your Honour.

KIRBY J: As Justice Heydon reminds me, he was off duty at the time, which is greatly to his credit that - - -

MR SMITH: That he did something, yes.

KIRBY J: - - - he intervened.

GUMMOW J: Now, an extension of time is required here. Do you oppose that?

MR SMITH: No.

GUMMOW J: And there was also an extension of time required in the Dudko matter. I took it you did not oppose that.

MR SMITH: I did not oppose that either.

GUMMOW J: Yes. Well, the order in the Dudko matter will be preceded by an order granting the extension of time, but dismissing the application.

MR SMITH: If the Court pleases.

GUMMOW J: Is there anything you want to say, Mrs Killick?

MRS KILLICK: From what - - -

GUMMOW J: With particular reference to what we have been discussing with counsel.

MRS KILLICK: Justice Kirby mentioned at the beginning of his address about prisoners should be given an opportunity to be here or to be in camera, and arising from that may I just tell the Court, on behalf of Mr Killick, that he did make application to be here, and it was rejected outright by the Department of Corrective Services. So I make that comment, your Honours.

This might seem a rather insignificant question, but in the court below the Crown mentioned that it was the responsibility of the applicant to put before the Court all the documents on which he relies, and I have - - -

KIRBY J: But they did give forewarning, did they not, of their reasons? So that would have given Mr Killick the opportunity to correct any factual matters that he thought were significant.

MRS KILLICK: Yes, your Honour, but - - -

KIRBY J: That was an unusual thing for the Court to do. I have never heard of it being done before, but I think it is commendable that they did it, as he was not represented.

MRS KILLICK: Your Honour, and because of that, because the Crown has said that the onus is on the applicant, I have taken that on board, your Honour. Because I am representing Mr Killick, I would like to ask your Honours – and, as I say, it is a question that is probably not all that necessary, but I will ask it. Do your Honours have before you, as well as the application book, the supplementary application book, the applicant’s affidavit, with annexures A to E, filed on 17 February 2004 and the list of authorities?

GUMMOW J: Yes. The Registrar makes sure we get these materials.

MRS KILLICK: Thank you very much. I ask you because of what I have just said, your Honour.

GUMMOW J: I understand that.

MRS KILLICK: May I ask a further question?

KIRBY J: The material on Mr Killick’s health condition - - -

MRS KILLICK: Yes, your Honour.

KIRBY J: I read it carefully, and I have seen that many of the prison officers found Mr Killick quite an agreeable person to be with. I have read all of that, but, by the standards of the cases we see over the years, it does not seem as though he is really in a life-threatening condition. He has a heart condition, but many of us have heart conditions and take various pills and potions for that purpose.

MRS KILLICK: Yes, your Honour.

KIRBY J: That would not be a relevant factor for sentencing or for management, as far as a court was concerned. It may be something that can be put up to prison authorities, but once courts have sentenced they have done their part, and then it is the Executive Government and the custodial services body that has to manage the prisoner’s health. I was not really struck by that material, as sometimes one is, if you have a prisoner with HIV, or a prisoner who has a really life-threatening condition. It does not seem to me that it is in that class at all. I have to tell you that is my reaction, though I do have to say that Mr Killick, whilst in prison, has lost his liberty but he has not lost other aspects of his personality. I do not, myself, see why he should not be working in the library or doing things of that kind - - -

MRS KILLICK: Yes, your Honour.

KIRBY J: - - - but that is a matter for the prison authorities, it is not a matter for courts. Maybe with a little time, that point will be understood by the prison authorities.

MRS KILLICK: It could, your Honour. So, your Honour, you will not hear me then on the fact that Mr Killick’s blood pressure goes through the roof at times, fluctuates up and down? You are telling me, from what I have heard you say, you are not going to deal with that and you do not want me to comment on that at all. Right, very well, your Honour.

KIRBY J: Courts do not manage prisoners in this country.

MRS KILLICK: Yes, I understand, your Honour.

KIRBY J: Sometimes in the United States they appear to do so, but in Australia courts decide on issues of guilt and sentence.

MRS KILLICK: Yes.

KIRBY J: Once they have done that, they lose control. The prisoner is then in the hands of the Executive Government.

MRS KILLICK: Right. So, your Honour, just one more question that I feel obliged to ask you. Your Honours, will the decision of this Court take into account all the documents before you?

KIRBY J: Yes, and all the points that have been raised: the points concerning the erroneous discretion to constitute the Court of Criminal Appeal by two, which was not raised by Mr Killick when the matter was there; the point concerning the suggested lack of procedural fairness; the so-called points of the ill health; the totality point, which I raised with the prosecutor; and the suggested missing pages. All of those matters and all the others mentioned in the document have been read and considered by the Court.

MRS KILLICK: Thank you, your Honour.

GUMMOW J: We will take a short adjournment – yes, do you want to say anything, Mr Smith?

MR SMITH: Your Honour, I am sorry. Just in relation to Mr Justice Kirby’s question about the shooting of the off duty police officer, at pages 87 and 88 of the application book there is a summary by the Court of Criminal Appeal of the evidence in that regard.

KIRBY J: The point I was making to Mrs Killick concerning management of prisoners is correct, is it not? I think Sir Laurence Street said that in the Court of Criminal Appeal in a leading case that - - -

MR SMITH: It is the prison authorities that seem to have the last say, your Honour, but I think they do take note of things that are said in Court.

KIRBY J: It does appear, though, that some of the material that has been put before us – I do know if it is at all relevant in the special leave, but I suppose an escapee is not the most popular person within a prison.

MR SMITH: No, your Honour.

KIRBY J: But one would certainly hope that that is not a cause for treating a prisoner differently, on their merits, within the prison system.

MR SMITH: That is right, your Honour, I agree.

KIRBY J: Indeed, there may even be administrative remedies if a prisoner is not treated according to merits by administrative authorities in prison - - -

MR SMITH: Yes, I am sure there are.

KIRBY J: - - - but it is not relevant to the special leave application.

MR SMITH: No, your Honour.

GUMMOW J: We will take a short adjournment.

AT 2.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.34 PM:

GUMMOW J: The outcome of the sentencing appeal to the New South Wales Court of Criminal Appeal was that the applicant for special leave here will be serving lesser sentences overall and a lesser non-parole period. Whilst the sentences imposed still may appear somewhat harsh, the Court of Criminal Appeal had proper regard to the totality principle and to what was said in this Court in Pearce v The Queen (1998) 194 CLR 610 and Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. There are no prospects of success with respect to the other complaints made in the applications, including the composition of the Court of Criminal Appeal. Accordingly, the necessary extensions of time are granted, but the applications for special leave are refused.

AT 2.35 PM THE MATTERS WERE CONCLUDED