Way v The Queen [2005] HCATrans 147 (11 March 2005)

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Way v The Queen [2005] HCATrans 147 (11 March 2005)

Last Updated: 29 March 2005

[2005] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S226 of 2004

B e t w e e n -

COLIN JAMES WAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 12.02 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR A.C. HAESLER, SC. (instructed by Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC: If it please the Court, I appear for the respondent with my learned friend, MS A.M. MITCHELMORE. (instructed by Director of Public Prosecutions)

GUMMOW J: Yes, Mr Odgers.

MR COGSWELL: Your Honours, this application involves new and radical sentencing legislation which introduces the concept of the standard non-parole period, which is defined in section 54A(2) of the Crimes (Sentencing Procedure) Act, which will be found at page 39 of the application book, to represent:

the non-parole period for an offence in the middle of the range of objective seriousness for –

the particular specified offence. Section - - -

GUMMOW J: Now, what would we be doing if we got engaged in this enterprise?

MR ODGERS: Your Honours would be giving guidance - - -

GUMMOW J: We do not give guidance, we decide cases.

MR ODGERS: You would be deciding in the particular circumstances whether or not the Court of Criminal Appeal erred in its interpretation of this legislation and its application of the legislation to this applicant. Your Honours are obviously familiar with the legislation, so I will not summarise it.

GUMMOW J: What, we would send it back for resentencing, would we?

MR ODGERS: Yes, your Honour.

GUMMOW J: We would have to, would we not?

MR ODGERS: Yes, your Honour, that is what we would be submitting would be appropriate.

GUMMOW J: In the Court of Appeal?

MR ODGERS: The Court of Criminal Appeal, your Honour.

GUMMOW J: Yes.

MR ODGERS: Your Honours, the Court of Criminal Appeal held that - - -

GUMMOW J: And what proposition of law would we be espousing in order to base our judgment as to the construction of this legislation?

MR ODGERS: Your Honours would be interpreting the construction of the words in section 54A:

the middle of the range of objective seriousness –

so there would be the question of what those words mean, and there are two aspects that the concept of “the middle of the range” - and your Honours appreciate that our argument is that the Court of Criminal Appeal has put a gloss on that which is not justifiable - and then there is the question of what “objective seriousness” means in this legislation. Again, your Honours will appreciate that we have contended that the interpretation that has been adopted is too broad.

This has important consequences because it depends on what the error is. There are two significant errors. They have adopted a too broad approach to the determination of “objective seriousness” and they have converted the statutory language of “offence in the middle of the range of objective seriousness” into “offence in the mid or middle range of objective seriousness”.

In a moment your Honours, I will turn to why those are errors, but it is important for these reasons. If you adopt a relatively broad middle range, then that will mean a relatively large variety of different types of offence will fall within that middle range. So that necessarily a larger number of cases will be caught by the standard non-parole period, including cases that fall just within the middle range, which of course was the present case, because the Court of Criminal Appeal held that the objective seriousness in relation to this applicant - that the offence he committed fell just within the middle range.

The Court of Criminal Appeal appears to envisage that this range may be quite broad, and it also considered that it was appropriate to imagine an abstract midrange offence. The very approach of imagining an abstract midrange offence will broaden the middle range for the reasons that Justice Adams gave in the case of Pellew [2004] NSWCCA 434 which we have put in the materials. And I can take your Honours to that just briefly if I might. In Pellew at page 21 in paragraph 44, Justice Adams said:

Quite apart from the difficulty of constructing a middle of the range abstract offence to which ss54A and 54B refers, arising from its absence of content, since it would be possible – indeed, likely – that a number of hypothetical circumstances of the “abstract offences” could be supposed, with quite different objective features, both aggravating and mitigating, the collective effect of which would nevertheless result in a number of the hypothetical cases falling within the middle of the range of objective seriousness despite their differing circumstances –

And if I just stop there, the point is that his Honour is indicating that the very difficulty with the concept and the introduction - - -

GUMMOW J: But he went on to talk about this case, did he not?

MR ODGERS: He talked about this case, yes, your Honour, and pointed out the problems with the very concept of an abstract offence, which is – this Court adopted that approach of saying that you should imagine an abstract offence or offences in the middle of the range, and his Honour has pointed out the difficulties with that approach and, with respect, your Honours, we adopt his analysis, particularly at paragraph 43 where he said about ten lines from the bottom:

The decision whether the objective seriousness of the particular offence falls within the middle of the range –

this is what he said should be done –

becomes a matter of judgment by comparing, not the circumstances themselves with those of some “abstract offence” but by intuition and experience, placing the particular offence in an appropriate continuum of seriousness.

His Honour was bound by the decision of the court in Way, to adopt the concept of “a middle range” which we are challenging here, but he felt it appropriate to say the words he did about this idea of an abstract midrange offence, and we respectfully adopt what his Honour said there.

The second reason why this all matters, your Honours, is that even though the Court of Criminal Appeal considered that it was appropriate to have a second step to look at whether there are aggravating and mitigating factors in section 21A which would justify reducing the non-parole period, what is clear is that if you have taken into account some factor in assessing objective seriousness, you are precluded from then taking into account under this second stage. So, given the broad definition of “objective seriousness” which included, for example, mental disability of the offender, if that is taken into account in respect of the objective seriousness, then you cannot bring it into the equation to determine that you should nonetheless reduce the non-parole period.

Your Honours, in the written submissions we have spelt out why it is we say that there are those two important errors, but if it is of assistance to your Honours, I can just quickly summarise why we say there are these errors. The first error relates to the idea of a midrange. Firstly, it ignores the language of the provision which simply says:

the middle of the range of objective seriousness –

Secondly, in the second reading speech, the Attorney-General specifically used the word “midpoint”. Your Honours will see at page 46 of the application book at the bottom of the page:

The new sentencing scheme proposed in the bill introduces a further important reference point, being a point in the middle of the range of objective seriousness for the particular offence.

We call that in aid to support our contention that the Court of Criminal Appeal has created something which is not to be found in the legislation.

The third reason we say it is an error is because to adopt this idea of a midrange, which necessarily will import a larger number of cases falling within the middle of the range, will reduce sentencing discretion because of course, if it is in the middle range, you have no discretion, you have to impose the standard non-parole period unless the 21A factors permit you to do otherwise.

So that, we say, is inconsistent with what the legislation says, and more importantly, there is no suggestion in the legislation or in the second reading speech that judicial sentencing discretion should be reduced in this way. It was specifically rejected by the Attorney-General in the second reading speech. He at a number of points emphasised the importance of retaining sentencing discretion. The primary goal of this legislation was not to interfere with sentencing discretion, it was to promote consistency and transparency, and we respectfully submit that the approach the Court of Criminal Appeal has adopted is not consistent with those goals.

Finally, we say in respect of this point that the interpretation of the Court of Criminal Appeal will necessarily increase sentences significantly. Even though there is no support for such an increase in the remarks of the Attorney-General, there is no hint in his second reading speech that he contemplated that the legislation would lead to an increase in sentences for the various offences specified. That matter was accepted in the Court of Criminal Appeal that there was no hint of that in what he said, and yet the Court of Criminal - - -

GUMMOW J: What do you say about point 3.6 at page 102 of Mr Cogswell’s submissions?

MR ODGERS: Your Honours, we accept that when one sentences, you cannot reduce sentencing to a simple or precise calculus, that is precisely what Weininger stands for, but that is a different thing to saying that you should - when you are applying this legislation and asking the question “what is the objective seriousness of this offence, where does it fall on a spectrum?”, we say that that requires a very simple analysis, that is, an intuitive judgment. How objectively serious is this on a spectrum from least serious to most serious? And intuitively, a judge will say, “Where do I think it falls, corresponding to a midpoint, a midpoint of somewhere in the middle between least serious and most serious?” You do not create an abstract idea of what a midrange offence is, you come to an intuitive judgment just as you do in respect of the maximum penalty. When a judge sentences, he or she does not say, “What is an abstract worst case?”. Rather a judge says, “Intuitively, bearing in mind that the maximum penalty is reserved for the worst case, where on the spectrum of objective seriousness and all other factors do I think this offence falls?”

GUMMOW J: Now, you said this was going to lead to longer sentences.

MR ODGERS: Yes, your Honour, and Pellew supports that.

GUMMOW J: What happened in this case?

MR ODGERS: In this case, the non-parole period that was imposed of seven years was the highest non-parole period - - -

GUMMOW J: What was it before?

MR ODGERS: The sentencing judge would have indicated that but for this legislation, he would have imposed a non-parole period of five years and three months. The relevant judicial - - -

GUMMOW J: What did he impose?

MR ODGERS: He imposed ten years because he felt he was bound by the legislation to do so. He believed he had no alternative. The Court of Criminal Appeal said that was wrong, he fell into error in a number of ways, but then they proceeded to resentence and imposed a sentence of seven years. But in terms of what the Judicial Commission’s statistics reveal, your Honours, you will find those referred to at page 38 of the application book at line 22:

that in a population of 62 cases –

who had been imprisoned –

89% had resulted in the imposition of full-time custodial sentences –

80% of the head sentences were in the range of 2 to 6 years, and then the last sentence - - -

GUMMOW J: This is all looking backwards.

MR ODGERS: Well, your Honours, it is a conventional sentencing approach to look at how other judges sentence.

GUMMOW J: I know it is, but from time to time it changes.

MR ODGERS: Quite, and if the legislature unambiguously or clearly signals that the range should go up as they do conventionally by increasing the maximum penalty, then it is necessary for judges, sentencing courts to reflect that an to increase the range; we accept that. However, there is nothing in the legislation itself in this case, nor in the second reading speech - - -

GUMMOW J: What was its objective?

MR ODGERS: I have read it out to your Honour: to encourage consistency and transparency. The objective was that when a sentencing judge comes to sentence, he or she is required to specifically advert to the objective seriousness of the offence. That is the first thing. You must refer to it. Secondly, you must come to a view as to where it falls on a spectrum from least serious to most serious. If you conclude that it is lower than the middle of the range, that may be a reason for imposing a lower non-parole period, but you would nonetheless keep it as a guide point or a reference mark or whatever term you use, and similarly, if you conclude it is more serious than a middle of the range objective offence.

GUMMOW J: What did Justice Simpson say, if anything, in Pellew on the points you are making?

MR ODGERS: Pellew concerned a different offence which was not this offence, it was an offence - - -

GUMMOW J: Did she complain of the difficulties that Justice Adams was highlighting? She is a party to both.

MR ODGERS: She was shocked by what she understood to be the consequences in terms of resulting in a much higher level of sentencing. She felt that the result of the standard non-parole period in respect of that offence would mean that there would have to be a substantial increase in sentences for that offence. That is to be found, your Honours, at paragraphs 36 to 37 in the judgment of Justice Simpson, particularly at paragraph 37:

In my opinion, the legislature having fixed 60% of the statutory maximum as the standard non-parole period for s66A offences, it is inevitable that sentences for these offences will increase.

Your Honours, that raises an important issue which is that where you have decided that there are reasons for not imposing the standard non-parole period, what is the significance of that standard non-parole period? The approach of the Court of Criminal Appeal in the present application and in Pellew gives reasons to believe that the Court of Criminal Appeal considers that it is required to generally increase the sentences imposed for these offences, which we say involves error because it involves giving too much weight to objective seriousness, it involves danger of the very kind of danger of a two-stage approach, looking at objective seriousness and then looking at other factors which carries with it a danger of giving too much weight to the objective seriousness or giving too much weight to the standard non-parole period itself.

Your Honours, it is very important to appreciate that the standard non-parole period is a figure based only on objective seriousness. It leaves out of the equation all the kinds of subjective mitigating factors which are commonly prevalent in respect of offences. So that one reasonably could expect that there would be a significant reduction in non-parole periods below the standard non-parole period. It ties in with the point I made earlier that there is no reason to believe that the legislature did intend that there would be an increase in sentencing as a result of this legislation. I have taken you to the second reading speech, and yet the courts, because of the way they are interpreting this legislation, believe that they are bound to substantially increase sentences.

The applicant in this case, his sentence was one third greater than it would have been but for this legislation. That is clear from what the sentencing judge said initially. That is consistent with what seems to be emerging as a general across the board increase in sentencing patterns for these types of offences. Pellew is an extreme example of that, but Way is
consistent with that. In Way they did not say that we have to increase sentences but they said that they may need to be. The result in Way demonstrates that is precisely what happened because, as I have shown, the sentence was at least substantially higher than what the sentencing judge would have imposed and substantially higher than what the statistics revealed as to the pattern of sentencing.

So, your Honours, we say there are very important issues here about what is unique legislation, it is radical legislation, it introduces a new concept for sentencing which is new in Australia as far as we are aware. There are real questions of statutory interpretation which we say arise from it. The decision has important implications for sentencing for a very large range of very serious offences in New South Wales. There are good reasons to believe that the Court of Criminal Appeal has erred in a number of respects, and we submit that in all the circumstances there should be a grant of special leave.

GUMMOW J: Yes, Mr Cogswell. What do you say about the suitability of this case as the occasion to consider what is said to be these matters of statutory construction?

MR COGSWELL: Well, they are matters of statutory construction and it is unique and perhaps, as my learned friend says, radical legislation, but basically there are two points of statutory construction which my learned friend isolates, and they are both contained in section 54A(2).

One point of statutory construction focuses on the word “middle” in 54A(2). The other point of statutory construction focuses on the words “objective seriousness” in section 54A(2). My learned friend, taking the first point, “middle”, says that the Court of Criminal Appeal was in error in selecting a range rather than a point. And my learned friend in respect of the second issue, “objective seriousness”, says that the Court of Criminal Appeal took into account too wide a number of factors, instead of narrowing it to the simple physical acts.

Can I look first at the “middle” point, your Honours. The CCA here was construing a statute dealing with sentencing for instances of human behaviour. The behaviour apart from certain essential elements can vary widely, and it could be said indeed that no two sentences were alike. But the Court of Criminal Appeal was not interpreting a statute to do with mathematics or statistics or something like that. It was interpreting a statute which regulates human behaviour. It was, we say, open to the CCA to interpret the word “middle” as middle ground rather than middle point, and my learned friend is seeking to - - -

GUMMOW J: What is the difference?

MR COGSWELL: The middle ground allows more scope, a greater area, so to speak. My learned friend’s point is that the literal interpretation of the “middle of the range” is a point in the middle. We say that lends itself to a mathematical calculation or something like that, whereas the Court of Criminal Appeal interpreting a criminal statute regulating the - - -

GUMMOW J: Well, you say “middle” takes some colour from the word “range”.

MR COGSWELL: Yes, and middle in a range can be yes, a middle point if it were – well, if it were a range of numbers or a range in statistics, perhaps that is one thing. So the colour really comes not so much from range as from the nature of the statute which the CCA is interpreting, and it is a statute to do with regulating human behaviours. So “middle” in that context, we say, needs to be a- - -

CALLINAN J: Flexible.

MR COGSWELL: The point being the CCA has not erred in interpreting this word “middle” as meaning a band within a range rather than a point, because it is dealing with this sort of statute.

GUMMOW J: And the second point?

MR COGSWELL: And the second point is that - - -

GUMMOW J: Objective seriousness.

MR COGSWELL: Once again, the CCA has taken upon itself to – well, it is dealing with a unique point and it says as much at 56 in the application book, your Honours, at paragraph 84 of the judgment, your Honours:

The sentencing case law is replete with references to objective features of the offence and subjective features of the offender. It has not hitherto been necessary to classify a factor as one or the other. It is now necessary to construe the words “objective seriousness” of an offence.

And the CCA then embarks on a process of construing or filling in the meaning of those words, and it selects two criteria or points of reference, causation and consequences. So it looks at factors which might be contributing to the causation such as motivation or mental state, and consequences sequelae to the offence. And it says that - - -

CALLINAN J: Why should not the relationship of the parties also be relevant to objective seriousness in an appropriate case?

MR COGSWELL: In an appropriate case, your Honour, and one can think of an example of a person who murders another person in circumstances which do not amount to a legal basis of provocation, but where provocation might be a relevant factor because of the relationship between the person shooting and the deceased person, and perhaps a third person involved on the one hand. On the other hand, there is no relationship between the person, for example, if a person is paid to lie in wait and plans for weeks to kill someone.

We say that the Court of Criminal Appeal, over pages 56 to 59 of the application book in developing its reasons for filling in the meaning of “objective seriousness”, simply has not fallen into error. It has chosen, with respect, appropriate and workable points of reference for a sentencing judge approaching the meaning of the words “objective seriousness”. For those reasons, your Honours, we say there has simply been no error on the part of the Court of Criminal Appeal on the two statutory construction points raised by my learned friend.

GUMMOW J: Thank you. Yes, Mr Odgers, anything in reply?

MR ODGERS: Yes. Your Honours, there is an important point of statutory interpretation here which is raised by this case. It may be that the Crown’s contention is right, but it is at the very least arguable that we are right, that it should be treated as a midpoint and not an idea of the middle range. It is important in this particular case because at page 75 of the application book, your Honours will see that they concluded the objective seriousness of this applicant’s offence fell “just within” the middle range. Now, your Honours, can I ask you this. What does that mean? It depends on how big the middle range is. What if the middle range covers 20 per cent of offences or 30 per cent of offences? If you fall just within the middle range, you are, statistically speaking, way below the middle of the range but nonetheless you have fallen just within the middle range.

CALLINAN J: Mr Odgers, the adoption of a range rather than a precise midpoint has this attraction, that it does allow some flexibility to the sentencing judge, which I would have thought would very often be in the interests of the convicted person anyway.

MR ODGERS: Your Honour, we would say to the contrary, that if you adopt a midpoint, you have enormous flexibility because you just simply come to a view where it falls – is it above it? Is it below it? That is the discretionary judgment, the intuitive judgment you are going to come to.

CALLINAN J: I am not too sure that the adoption of a precise middle point would not be an artificial exercise anyway. It would be very, very difficult to do.

MR ODGERS: Your Honour, we say it is entirely comparable to the idea of the maximum penalty, the worst case. It is difficult to compare one case with another, but intuitively as a judge you say, “I think this is significantly less serious, let us say, than the worst case, or something different”. Equally, there would be no difficult for a sentencing judge saying, “I intuitively come to the view that this is below the middle of the range” or, alternatively, “above the middle of the range”. That is all a judge would need to do under this legislation to do that. A judge would not need to contemplate an abstract middle range offence, which is what the Court of Criminal Appeal requires a judge to do now, would not need to compare this case with such an abstract middle of the range offence, would not need to say how big the middle range is in order to determine whether or not this particular offence fell within it. With respect, your Honours, this legislation as interpreted creates much more difficulties for a sentencing judge than what we contend is required by a straightforward application of the words of the provision.

But in any event, your Honours, it is a question of general importance and we say it should be considered by this Court and that this is an appropriate vehicle because of the fact that the sentencing judge said that but for the legislation he would have imposed a significantly lesser sentence, and because the Court of Criminal Appeal accepted that the sentence imposed was significantly higher than what the previous range had been.

Your Honours, as for objective seriousness, it is not as simple as the respondent puts it. That term had to be interpreted within this legislation, and there are numerous reasons as a matter of statutory interpretation why the Court of Criminal Appeal got it wrong. If you go to the argument, the written submissions at page 96 - I will not bore your Honours with all of the arguments, but at page 96 can I take you to the most obvious argument, and it is this. The interpretation – this is (b) at line 20 - the Court of Criminal Appeal has given to “objective seriousness” makes the word “objective” superfluous, because they have said it includes every factor, every consideration personal to the offender, which has a causal connection with the offence. So it includes things like whether or not he is drug addicted, whether or not he has a mental problem - - -

GUMMOW J: That could cut both ways.

MR ODGERS: Your Honour, it can but that ties in with the - - -

GUMMOW J: You say it can only cut one way. I am not sure that is right.

MR ODGERS: No, your Honour, but it ties in with the problem of the middle range, because if you say, “I am going to take into account mental instability, let us say, a serious problem, that is factored into objective seriousness, and it reduces the objective seriousness but it just squeaks into the middle range, there is no discretion, I must impose the standard non-parole period and I can’t then thereafter reduce it because of the mental instability”.

So the very combination of a broad interpretation of “objective seriousness”, which we say is not justified by the legislation at all, combined with the idea of a middle range and just squeaking in, just falling within it, has the effect that the discretion is removed, the judge has no option but to impose the standard non-parole period which is significantly higher than what the previous range was. I see the red light, your Honours, I cannot say any more.

GUMMOW J: We will take a short adjournment.

AT 12.33 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

GUMMOW J: We consider that on any view of the construction of the legislation there are insufficient prospects that on any resentencing the result would differ from that already reached in the Court of Criminal Appeal in this case. Accordingly, special leave is refused.

AT 12.39 PM THE MATTER WAS CONCLUDED