Carroll v The Queen [2009] HCATrans 64 (2 April 2009)

Last Updated: 2 April 2009

[2009] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S30 of 2009

B e t w e e n -

JOSH CARROLL

Appellant

and

THE QUEEN

Respondent

GUMMOW J
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 APRIL 2009, AT 2.18 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the appellant with MS G.A. BASHIR. (instructed by Legal Aid Commission of NSW)

MR D.U. ARNOTT, SC: May it please the Court, I appear with MS J.A. GIRDHAM for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Game.

MR GAME: Thank you, your Honour. When we were granted special leave we said we would be able to conclude this appeal within two hours and we intend to.

GUMMOW J: We have read your written submissions and those of the other side, which do not lack detail.

MR GAME: No, your Honour. Can I say that what I propose to do is to do no more than, as it were, put to you orally how we see the structure of our - - -

GUMMOW J: Perhaps before you do that, could you indicate to us the time scale of your client’s custodial position?

MR GAME: Yes. There is a chronology at the beginning of the material that we provided. His non-parole period expires on 1 November 2009. So he was serving a sentence by way of periodic detention with a head sentence of three years with a non-parole period of 18 months ordered to be served by way of periodic detention. That became a full-time sentence. So he continued to serve that sentence in full-time custody, with the credit – when I say, the credit, period of periodic detention treated as part of - - -

GUMMOW J: If the sentence of the primary judge was restored, what would his situation now be?

MR GAME: The situation is that he would continue to serve periodic detention until 1 November 2009 and then he will be released to parole subject to administrative arrangements in respect of how the periodic detention is actually served.

GUMMOW J: Thank you.

MR GAME: Now, I really do intend to be brief and there is - - -

GUMMOW J: We.....being brief, we hope you are being effective.

MR GAME: Yes, your Honour.

GUMMOW J: Let me just ask you this? You complain in effect, do you, that the Court of Criminal Appeal was performing what one might call a House v The King exercise and that they have erred in applying the last category, the residual category of House v The King?

MR GAME: Yes, your Honour.

GUMMOW J: That is what it comes to, that level of abstraction, does it not?

MR GAME: Yes, your Honour, exactly. In the context of a section 5D appeal, in the context where no specific error is identified.

GUMMOW J: That seems to lock into the last category of House v The King.

MR GAME: Yes, your Honour. So if one could look at the grounds at page 302 of the appeal book, one will see the first ground is really what might be described as a process of objectification, an identification of a kind by a series of what we would describe as re-castings and errors and then the bringing of the appellant within that kind. That is the first error and that comes really, as it were, second in place to the second but central error which is that the majority failed to identify error in the House v The King sense.

But as close as they got to it was the process that is the subject matter of ground 2.1. Ground 3 is a ground in which we bring together, as it were, two discrete but significant errors made by the Court of Criminal Appeal – one, a making of a finding about culpability at a high level, an unlawful and dangerous act, and the second by a rejection of provocation. Ground 3, as it were, feeds back into grounds 1 and 2 because it is by that process of recasting that the appellant’s case is brought within the type which is the type cast in ground 1. Then ground 4 is that the court, having announced that they had found the sentence to be manifestly inadequate, resentenced without engaging in any of the steps or processes that that requires.

GUMMOW J: I am not sure it is explicit, but is it implicit in your grounds of appeal here some consideration of how significant the frequency or infrequency of Crown appeals is?

MR GAME: Yes, your Honour, but where that comes in, essentially, is in the constraint that must be shown in the section 5D exercise which is ground 2, so it is brought in under ground 2, that is to say, within the demonstration of error in the context of section 5D is the high burden that is cast before a court intervenes in a section 5D Crown appeal.

HAYNE J: I am sorry, I do not follow that, Mr Game. What exactly are you trying to convey by that?

MR GAME: What I am trying to convey, your Honour, is that the principles are established that in order to intervene in a Crown appeal in a circumstance such as this, the cases – and I am thing of cases like Everett – say that in a case like this where it is the last category of House v The King you have to show that it is so far below the range, as they say, to be clearly demonstrative of error, that is to say, there appears to be accepted an additional burden in the Crown appeal. That is brought in in the idea that Crown appeals are a rarity to establish questions of principle.

HAYNE J: There are degrees of manifest inadequacy, are there? That is what it seems to entail and I just need to understand that.

MR GAME: Yes, your Honour. The language in Everett, which has been adopted in other cases, is that in a case such as this – and the words in the case are so far below the range as to be clearly demonstrative of error. So the answer is, it would appear that mere manifest inadequacy is not sufficient normally for the upholding of a Crown appeal.

BELL J: Mr Game, in that respect, when one goes to paragraph 18 of the Chief Judge’s reasons, he does speak in terms of the sentence that was imposed being so far from that appropriate for the offence that this Court must intervene, and then he speaks in the language of manifest inadequacy.

MR GAME: The words that are quoted that I had in mind, and I did not get them exactly right when I answered Justice Hayne’s judgment, but I think that the words in Everett at 299 are in Justice McHugh’s judgment, a reference to “definitely outside the appropriate range” and those words appear but that proposition was honoured, in our submission, in the breach in this case that there was no such demonstration of error.

BELL J: That is a different point, is it not? It is just that I must say that it seemed to me difficult to make good the proposition that there was not a finding of manifest - - -

MR GAME: No, I accept that, yes, but there was no demonstration of it in the sense that Dinsdale and Wong say there must be a demonstration, that is to say, something that can be articulated in clear terms and has been articulated. The only articulation of it in this case is that through that process of reasoning about types of offences which I propose to address shortly.

But may I say one more thing which is that in answer to his Honour Justice Gummow’s first question, if mere inadequacy – and I mean manifest inadequacy – was sufficient for the upholding of the Crown appeal, then we would say that case does not turn on that distinction, but if that were sufficient then Crown appeals would be – and they may well have become – as frequent and as easily upheld as appellant’s appeals, whereas it appears to be accepted in the jurisprudence of this Court that an offender/appellant comes to the Court on his or her appeal with a lower standard to establish before intervention is to be brought about, particularly in respect of manifest inadequacy or manifest excess, depending on who is positing that case.

GUMMOW J: There is a notion – it is not exact, but there is some notion of double jeopardy involved, is there not?

MR GAME: Yes, your Honour.

GUMMOW J: As a cautionary consideration.

MR GAME: Yes. Those words are used. They do not exactly catch the idea behind it, but they do catch the idea of the exposure of the higher penalty and what that means. In a case such as this, that may well be significant to a young man who has been serving effectively his sentence on periodic detention and puts further evidence before the court on appeal.

Before coming to the judgment of the Chief Judge, may I take the Court briefly to the judgment of her Honour Judge Flannery in the District Court. We would submit that this does bring in an additional aspect – I should mention straightaway – of consideration of what is at the heart of the last category of House v King, particularly in circumstances such as this involving a protean offence such as manslaughter, a hearing of evidence and a finding of questions of fact which are not challenged on appeal.

Whether or not one applies a Fox v Percy approach to findings of fact or whether or not one approaches it with a much higher level of requirement expressed in New South Wales cases which might be questionable which say the findings of fact were not open to a judge before the court will interfere – and I have in mind cases such as O’Donoghue – if one goes to her Honour’s reasons at page 262 we see her Honour making findings at 262 which really reflect what Justice Simpson describes at page 294 as a “momentary aberration”.

In page 262 findings are made about the appellant and what follows is a comment that the finding that what he did was inexplicable. Now, in the context of the findings about what kind of a person he is, that is tolerably, in our submission, a finding that what occurred was entirely out of character. That is a significant finding and it has to be understood that both in its statutory context and at common law a measuring of a man’s or a person’s culpability in circumstances as this very much includes a consideration of the nature of the aberration or the nature of the conduct in the context of the person that he is.

So, for instance, if a person who is a confirmed sociopath does such a thing, then in measuring the culpability for the offending one is looking at it through a very different pair of spectacles than a man who has led an exemplary life and his conduct on this occasion has to be understood in that context.

Secondly, at page 263 her Honour makes a finding of fact and the finding of fact is that there was some provocation from the victim and the blow was spontaneous and it was provocation against a finding of fact by her Honour that the deceased had said to, and heard by Mr Carroll, “I’m going to kill your whole family”. Those words are significant and they were not referred by the Chief Judge at Common Law and they are found at page 259 by her Honour.

BELL J: Can I just clarify this. The matter proceeded no doubt on the basis of an agreed statement of facts, did it not?

MR GAME: Yes, about that subject, yes, but Mr Carroll gave evidence on this subject and was not challenged on the saying of those words and the conduct coming immediately after them.

BELL J: But did her Honour make a finding on Mr Carroll’s evidence that is the subject of this submission?

MR GAME: Yes. The finding, I think, is at page 263, line 20, but the finding about what was said, “I’m going to kill your whole family” is a finding that does not merely come from the statement of facts. It is a finding that comes also from his evidence and an - - -

BELL J: But there is no issue about that, is there?

MR GAME: Your Honour, there is an issue because the Chief Judge at Common Law put aside altogether, in effect, the finding of provocation. So it is a significant question in this case because if you are applying a House v The King exercise to this, you are ultimately stuck with what her Honour found about provocation.

I wanted to make one further point about that before coming to the judgment and the further point is this. When one speaks about provocation here, this is a finding of provocation on the balance of probabilities in favour of the appellant and that is a very different thing, shall I say, to a failure to exclude provocation in a reduction of murder to manslaughter. It is a positive mitigating finding. I leave that then and come to the judgment of the Chief Judge at Common Law - - -

HAYNE J: Just before you do that, do you propose to return to House v The King issues at some later point?

MR GAME: I do your Honour. What I propose to do is to outline to you what I would submit are the appropriate steps to be taken, but all I propose to do before that is to put to you how we would see this exercise having unfolded in terms of our first ground about what I call “typification” and then I will feed in what we have to say about the House v The King error and how one would in fact approach this correctly in the context of a case such as this. If I may come then to the judgment of the Chief Judge at Common Law. At page 280 we see the single ground articulated, manifest inadequacy. That is at paragraph 6 and those matters that appear under it, just as in Dinsdale – and I have in mind the joint judgment of the Chief Justice and your Honour Justice Hayne – those are no more than particulars.

The specification of the ground manifest inadequacy is the last category of House v The King. Then we have a reference to KT at page 281 paragraph 8. What I propose to say about this case is by reference but without taking your Honours back through in detail, but KT was a very different sort of a case about a young man who threw eggs at a man and then came back and attacked him quite violently with two other people, and a very different sort of a case than this. All that KT stands for is that the sentence, six years with a non-parole period of four years, was not found to be manifestly excessive.

We disagree with our opponents that what is said about KT is either to distinguish KT or for no meaningful purpose in the judgment. It is not. It is a step along the way in his Honour attempting to articulate some reason for identifying error. At paragraph 9 is the sentence referred to in KT, the reference to a consideration of a number of cases. We have analysed those cases in our submissions and your Honours would have seen, we would submit, that all of them hardly have any connection with anything in consideration here. They are really all much more serious, this case, but they also include a substantial number of cases in which there was no sentence of full-time imprisonment.

GUMMOW J: Now, Mr Game, you mentioned section 5D. That does not have a leave requirement, does it?

MR GAME: No, your Honour, but may I say this. The leave cases in this Court, and I have in mind particularly Malvaso, which is from South Australia and is a leave case, if one goes back and examines those cases carefully one will see that they rely on earlier authorities of this Court, such as Griffiths, which is a decision of this Court in a Crown appeal from New South Wales where there is no leave requirement, so that although there is no leave requirement the – and the hurdle in those precise terms does not exist. The exercise to be conducted is, in our submission, very similar, if not the same.

HAYNE J: The victim of Justice McHugh in Everett, upon which you place special reliance, was a dictum about cases in which leave was required and drew a distinction between cases in which leave is required and those in which it is not, and the phrase upon which you fastened “definitely below the range of sentences” was said to be the test for leave cases in contradistinction to the test for non-leave cases where it is simply manifest inadequacy.

GUMMOW J: The relevant passage in Everett is 181 CLR at 306 to 307.

MR GAME: I am sorry that I have not come prepared to fully argue it, but may I emphasise that in this case we argue that manifest inadequacy is not demonstrated in itself.

HAYNE J: I understand that, but it is this rather deeper question of whether there are degrees which are relevant in a case such as this.

MR GAME: I think I knew that that was in Everett, but I do not think I remembered it at the moment that you asked me about it, but I do remember that Malvaso is very specifically a case about leave because leave was never granted in Malvaso, and I do remember that in Malvaso the cases relied upon included New South Wales cases such as Griffiths which was not a leave case. So that the considerations as a statutory matter may not be precisely the same but they are similar in – the language of 5D includes a discretionary aspect because in the third line the last words say, “may in its discretion” and that seems to bring back if not a leave requirement but a discretionary aspect to the exercise.

BELL J: In that respect in the joint reasons in Everett there was acceptance of the statement of the principle by Chief Justice Barwick in Griffiths which dealt with 5D in the same form as it now appears, and which referred to “an appeal by the Attorney-General should be a rarity” and the balance of that classic formulation.

GUMMOW J: Things have changed.

MR GAME: Things have changed, your Honour.

GUMMOW J: What is the significance of the change for those earlier authorities? We cannot go on intoning those passages if they are discordant with the present state of affairs.

MR GAME: Yes. Perhaps if I could put it this way – and I very much regret that once again I have come armed to argue something slightly different than I have found myself arguing about – mea culpa - but the question is of some significance because of, shall one say, a unified set of appellate provisions in this country relating both to appellants appeals and Crown appeals. It has not been perceived in the part - it may be statutorily difficult to defend but – and I will come back to that in one moment – there has been seen a need for approaching these what are called the common form provisions in a cohesive way. A leave provision is a doorstep beyond which one may not pass if not given leave, but leave is a question about, shall one say, getting to argue the case or getting to have the case concerned addressed beyond the door to the hearing of the appeal proper.

I must recognise that 5D does not have the same preliminary doorway through which one must move, but one will immediately come, in my submission, to another, which is the discretion in the words “may in its discretion”. The considerations may not be identical, but they are as close as could be for this reason, the reason being that jurisprudence about 5D itself recognises, and correctly, that a Crown appeal is an exercise which is brought for what might be described as special or weighty reasons, not merely to correct individual sentences in individual cases but to deal with questions of maintaining principle within the criminal law.

The emphasis on, as it were, obtaining a just result for an individual offender is cast in a very slightly different light. So my roundabout answer to the question that I was asked at the outset is, yes, there is no leave requirement but the discretionary aspect of a Crown appeal raises almost, not only, but very similar considerations.

GUMMOW J: The operative words in 5D(1) simply are:

and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.

That is the basis and there is this vast superstructure that seems to be directed upon it.

BELL J: Part of that, I think, historically is that going back to Whittaker v The King in about 1928 there were some statements made by some members of this Court that were suggestive of a view that the discretion in 5D meant that a Court of Criminal Appeal had an unfettered discretion to substitute a different sentence in relation to an appeal brought by the Attorney-General and it was that misconception that was dealt with in Griffiths and it was in dealing with that view that the Chief Justice spoke in terms of a practice having grown up of Crown appeals being brought with more frequency than should be the case, I think.

MR GAME: Yes. The words “impose such sentence as to the said court may seem proper”, in my submission, do no more than engage the court’s discretion having found error, if it finds error, to resentence according to law and to bring in all the of statutory framework and other factors that are relevant to that exercise. May I just draw your Honours’ attention to a passage in both Wong and Markarian, Crown appeals from New South Wales. In paragraph 9 in - - -

GUMMOW J: What is the citation?

MR GAME: Wong is at [2001] HCA 64; 207 CLR 584. At 592, paragraph 9 the Chief Justice again – it is not, shall one say, a statement made with recognition of the proposition that there is a difference of opinion or an issue to be determined but an acceptance that the principle enunciated by Justice McHugh in Everett is a - - -

GUMMOW J: That was a dissenting judgment.

MR GAME: Your Honour is correct. At page 605 one sees in the joint judgment at paragraph 58 – again it is about manifest inadequacy and I would accept it straight away. It is not a direct endorsement of the language of Justice McHugh in Everett and it is concerned with demonstration of error in the House v The King context.

GUMMOW J: At paragraph 58 there is a reference to the residual category.

MR GAME: Yes, your Honour, but it sets out what must be established in the residual category. It does not use – and I accept this – the language of Justice McHugh, but it accepts the need to both identify and demonstrate more than markedly different than other sentences, but the language – and I would accept – is the language of manifest excess or manifest inadequacy. I am not sure that that elucidates it further, but that passage itself is a central passage for consideration of this case because that is the territory that this appeal is in.

GUMMOW J: I wondered, that is why I thought that was the starting point.

MR GAME: Yes, your Honour. This case is in paragraph 58 of Wong and if one is looking at the joint judgment in Wong, if I could put it this way, the type aspect of the argument is in Wong at paragraphs 44 to 45 and the kind of problems – we would identify this case as a case that in terms of appellate principle it stands on all fours, correctly or incorrectly, but it stands on all fours with the approach taken in the joint judgment in Wong.

If I may come back to paragraph 9 of the judgment of the Chief Judge at Common Law on page 282. The number of cases sentenced to manslaughter – and we have analysed those and I will not take you to that. We have analysed them in paragraphs 24 to 26 of our submissions in-chief – they were cases similar to KT. Again that tells one nothing about cases that may have some relationship with the cases in this case, and significantly and contrary to our opponent’s submissions, there is no hint of a suggestion there that somehow or another the reader of that is to understand that the Chief Judge at Common Law was calling to account the fact that there were non-custodial sentences included in that.

Then one comes to the next sentence and it refers to the median sentence of manslaughter. This is something like 300 cases across all different kinds of manslaughter; voluntary manslaughter, which includes provocation, diminished responsibility, excessive self-defence; involuntary manslaughter which includes unlawful and dangerous act and gross criminal negligence.

But within “unlawful and dangerous act” one has the widest range itself of offending because one can move from acts that are almost felony murder right down to what are described by Chief Justice Spigelman as jokes gone wrong. But the median itself means nothing because the median is just the middle, it does not tell you – even if it could it does not tell you about a range of sentences, but even if it did all it would tell you was that there were a wide variety of sentences imposed in a wide variety of circumstances, and if one delves into that monograph one sees that sentences range from something like 18 months to 20 years.

Now, so the median does not tell you anything about a range, but the median itself buried within that is that that median is not for sentences, that median is a median for custodial sentences. Something like 11½ per cent have been excluded of non-custodial, full-time custodial, 15 per cent on pleas, and if you get to the District Court where you will be taken out of the voluntary manslaughters, it was something like a third.

HAYNE J: Well, we dealt with all this in Wong, did we not, in paragraph 66?

MR GAME: You did, your Honour, and we would submit this is absolutely squarely on paragraph 66 of Wong. But we say paragraph 9 is in there for a reason. It is to demonstrate, said to demonstrate, what this range is below which we are said to fall. However one approaches it, in our submission, the judgment found is at paragraph 9.

Now, what one comes to - still in paragraph 9 at the top of page 283, is the top of page “manslaughter committed by young persons”, “the appropriate sentence for a manslaughter committed by young persons”, and that is a typification, and the typification moves a little bit within the quote which is typification of – one sees the words “range of penalties imposed on young offenders who commit random acts of violence resulting in death may not have been sufficient”.

We bring in there the idea of the unilateral increase in sentence, but the point I am making here is a slightly different one, which is that we are moving along a typification of a case, none of which is the case of this offender, a point which is - - -

CRENNAN J: But is this not really a way of expressing the idea that the – which the Chief Judge has, that the sentencing judge failed to give enough weight to subjective circumstances - to objective circumstances?

MR GAME: Yes, but, your Honour, it depends what you mean by - - -

CRENNAN J: It is a way of describing that idea.

MR GAME: But, your Honour, in my submission, this is not a way at all of describing that idea because this is a process of objectifying something which has little to do with the actual findings made in this case with respect to what this offender did. The objective circumstances themselves include the factors relevant to the offender that explain “is offending”. One does not describe offending merely by reference to, shall I say, the physical attributes of it. That is clear both from the common law and from the sentencing provisions in section 21A of the Sentencing Act which exclusively recognise it in assessing the seriousness of the offence; you have regard to what I have just called the objective and subjective circumstances.

So, no, in our submission. What this is is an attempt to set up a target for general deterrence. The target for general deterrence emerges in these paragraphs. It has little or nothing to do with a proper assessment of the gravity of the offending, bearing in mind that none of the findings that her Honour made could be or were the subject of challenge, and I will come to how those are overturned shortly. We have gone from manslaughter committed by young men to random acts of violence resulting in death. Then at paragraph 11:

young men affected by alcohol who congregate in or near licensed premises are particularly prone to become involved in violence –

This is a Crown submission but this Crown submission is adopted. So the Crown is submitting that a deterrent sentence is needed to send a message to deter other young men from similar conduct, other young men who congregate in or near licensed premises affected by alcohol particularly prone to become involved in violence. May I pause here. For reasons we explain in our submissions in reply, alcohol and the appellant was not an issue and it was not an issue because it was not litigated as such by the parties and her Honour in accordance with that made no finding suggesting that alcohol played any part in what the appellant did.

If I put this submission in the context of Wong, this very approach is questioned in paragraph 44 in Wong where the idea that you pick out a category and then you pronounce that by imposing heavier sentences you will deter other people is a questionable notion, but it is a proposition, in our submission, that takes the very consideration away from the jurisdiction given by section 5D because we are moving away from a consideration of the merits of the appellant’s case. We are moving to the imposition of a standard in respect of deterring young men affected by alcohol who congregate in or near licensed premises, none of which, in our submission, has anything to do with this particular case because this particular case is a very particular and unusual one in its circumstances.

BELL J: Mr Game, accepting the very powerful subjective case that was made for this young man, it does remain that his evidence was that he had been at the hotel and he had consumed over some eight to 10 schooners. He said, I think in his accounts of it, that he did not endeavour to place blame for the offence on his consumption of alcohol. But to say that there is no relationship between the fact of the consumption of alcohol and the offence may be a different matter and I am not sure that that is anything to do with the Chief Judge departing from the facts found by the judge or agreed by the parties.

MR GAME: Your Honour, it is actually that number of schooners over I think something like eight hours, so it is a long day.

BELL J: I thought nine hours.

MR GAME: Nine hours, yes. But, your Honour, there is no finding and on that evidence there could be no finding that the appellant did what he did partly due to being affected by alcohol. That finding is not made and that finding, in our submission, could not be made having regard to the way in which the parties conducted the case. Yes, he had drunk a number of schooners over many hours - - -

HAYNE J: So that his conduct was not disinhibited because of alcohol. Is that what you say?

MR GAME: I am saying that alcohol does not play a part in the sentencing process in this case.

HAYNE J: That, as I say, seems to suggest that he is to be sentenced on the basis that there was no disinhibiting effect of alcohol.

MR GAME: Yes, but, your Honour, in a sense what is being done is that it is being treated as if the alcohol is an aggravating factor here. In my submission, the short point is that the alcohol was not an aggravating factor and it was not treated as such by the parties and you could not approach this case in that way. So, yes, he had drunk a number of schooners of alcohol. Nowhere, in our submission, could you on the strength of the evidence in this case make an aggravated finding about alcohol based on that evidence. The critical thing in that regard is the finding about the out-of-character nature of what occurred.

We have not put them on our submissions but there are two cases that deal with alcohol that we have referred to in our submissions. One is Henry and another is a case called Coleman and they both develop the principles and pronounce them as to how one approaches that question. Our submission at the bottom is that in line with those cases this is not such a case that you would find it to be so. That type of case would be a case, for example, where a young man had been, shall one say, habitually drunk or had known that he had a violent disposition when drunk, had some history in respect of criminality under the influence of alcohol or some factor that made it material. That is not, in our submission, in this case.

Then one comes to paragraph 14 of his Honour’s judgment. There is still, in the Crown’s submissions, the idea of type. The Crown’s submission – may I just pause here. When her Honour imposed the sentence of periodic detention she made it explicit that periodic detention she found was appropriate in all of the circumstances, including what she referred to as the objective circumstances of the offence. That is at pages 261 and 265. There is no need to go to it now but the actual passage is at 265. There is no warrant for saying that this was based on merely a consideration of subjective factors. It was not. But the Crown’s submission – and this is pigeonholing, in our submission – is this was yet another occasion when a violent act was committed by a young man significantly affected by alcohol which ended in the tragic death of another. Now, affected by alcohol has now become significantly affected by alcohol.

I will move forwards, but come back shortly to paragraph 18. In paragraph 21 the acts are now described as “Indiscriminate acts of violence of the type committed” and a reference to the “rare case where the appropriate punishment . . . does not involve a term of full time custody” and we have the type:

The community has a justifiable concern about the level of violence associated with young people and alcohol in our community.

Reference to sending a message. We have said it in our written submissions, but this is a proposition about prevalence, it is a proposition about general deterrents and it is a proposition about which the offender himself is not in a position, as it were, to meet, and all of the strictures of Wong apply to that paragraph.

In New South Wales now, as we say in our written submissions, there is a procedure by which a contradictor can be brought into existence and evidence can be put forward to the court in respect of issues like prevalence and the kind. In effect, that is how, in our submission, the typification of the case moves to a bringing about of a circumstance in which the Chief Judge finds himself able to give Mr Carroll a full-time custodial sentence for the purpose of satisfying general deterrence to cut down on the prevalence of this offence.

Now, just before coming back to paragraph 18, which I will deal with first, which brings in our third ground, before I return to how we would see the House v King exercise working in this circumstance, may I just go back to that reference to Dodd, and again Dodd was a very different kind of a case, but one has to be careful about the use of the word “proportionate” or “proportionality” where it is referred to, picking up Veen (No 2). What “proportionality” is a reference to there is what might be described as the most you can impose or not going beyond a limit. The context of that is that one cannot go beyond the limit, the punishment fitting the crime, in the Socratean sense. One cannot go beyond that because of proportionality, so that for preventative detention, which was the subject of Veen (No 2) “proportionality” meant something.

Proportionality cannot be reversed in the sense that it is done in paragraph 21. It is not a, “You cannot go below” in that same way because it is addressed to a different problem. What is happening, in our submission, at paragraph 21, is that the proportionality idea is being used, or the Dodd reference, to cut out what had been called the subjective circumstances but the circumstances that truly play on measuring the level of culpability of the offender that I mentioned at the outset.

May I return to paragraph 18 of his Honour’s judgment. It is put by our opponents that, shall I say, almost everything – not almost, everything in this judgment beyond the statement of manifest inadequacy is resentencing. Were that the case, there would be no identification of error in the articulated sense required by Dinsdale, Wong and Markarian, amongst others.

In paragraph 18 there are two propositions which introduce errors, and they are very significant errors. They are errors that provide his Honour with a basis upon which he brings Mr Carol’s case under the type as construed and re-construed in the paragraphs I took your Honours to. The first is the rejection of provocation:

Although her Honour found that the deceased made a threat to get a gun, this was an idle boast which could not have justified a violent response –

and so forth. That runs all the way through to the word “Although”. The Crown accepts in their submissions that his Honour has rejected provocation and, in our submission, that is inescapable that he has done so, and that was a finding that her Honour made on the evidence and it was a finding of fact. In addition, the critical thing, the threat to kill the whole family, has gone. It is now an idle boast about getting a gun.

KIEFEL J: Is that the central feature of the majority in the Court of Appeal’s approach to the objective seriousness of the offence from the sentencing judge?

MR GAME: Yes, your Honour, but there is one - - -

KIEFEL J: The sentencing judge approached it on the basis that there was a concession on the part of the Crown that there was some provocation and perhaps for that reason did not elaborate it too much and that seems to have been the point of departure of Justice Simpson from the reasoning.

MR GAME: Yes, your Honour.

KIEFEL J: The Chief Judge in determining the objective seriousness – and that seems to have been the principal basis for a conclusion of manifest inadequacy of sentence – appears to have denied provocation at all and moved to the other end of the spectrum, perhaps, to seeing it more as an intended totally unwarranted act.

MR GAME: A random act of violence almost, or something along those lines. May I add one more and it is very significant - - -

KIEFEL J: But is that the essential turning feature about objective seriousness?

MR GAME: Yes, your Honour, but there is one more which is in the last sentence of paragraph 18 and it is this.

KIEFEL J: The possibility of death?

MR GAME: Yes, and it is both the possibility of death and the severe injury clearly foreseeable. I will just expound that in a moment, but Justice Simpson described it as, I think she said, possibly the first point of departure. For unlawful and dangerous act manslaughter there has to be an appreciable risk of serious injury. Appreciable risk of serious injury in this case could be the injury brought about by the head butt itself to the face of the deceased. These are terms of art and they are used at terms of art, but the sentence reads:

Although a head butt delivered to another’s face may not be expected to lead to death, severe injury was clearly foreseeable –

Severe injury is the language of grievous bodily harm, or really serious injury, and we have shown though Wilson and Overall how that emerges through the cases in our submissions in reply. Severe injury is the language of really serious injury, not serious injury, and in Wilson the Court was at pains to distinguish between the two.

“Clearly foreseeable” was also rejected for the reasons we have extracted. But it was explicitly rejected by this Court in Wilson. But not only that, the idea of foreseeability was rejected, but the risk of serious injury was said to apply to a person in the position of the accused. In our submissions we have cited a judgment which, not in a hagiographical sense, but I notice that your Honour Justice Bell was a member of the court where an appeal was upheld because of the failure to bring into the direction a person in the position of the accused.

It is in our submissions in reply and I forgotten the name of the case, but it is not just that clearly foreseeability is not appropriate, but it must be a risk of serious injury of a person in the position of the accused, and that is in Wilson as well. Death at least a possibility. If one describes a possibility as an appreciable risk, we have moved from serious injury to very serious injury to death. Apart from what might be described as the Di Simoni problems, that is pitching the case at a much higher level of culpability than the offence and the plea and the evidence enabled. To use the language of Wilson, it goes perilously close to murder.

For those of your Honours that do not look at the Crimes Act (NSW) every day, murder in New South Wales can be established by “intent to kill or inflict grievous bodily harm” or by “reckless indifference to human life”. The words “reckless indifference to human life” are perilously close, if not the same, or very much the same as “serious injury clearly foreseeable”.

GUMMOW J: You are talking about section 18 of the Crimes Act?

MR GAME: Yes, your Honour. Those two errors, we would submit, are critical errors in the process which are used then to bring about the outcome of paragraph 21.

GUMMOW J: You said there was another paragraph?

MR GAME: No, the other sentence I was talking about. But all then one has is paragraph 19 in which one is told that the offence is serious. That, in our submission, does not expose error. I will come back to House v The King in one moment, but our fourth ground is encapsulated by the little that is said and occurs at paragraph 23, bearing in mind that there was a deal of material evidence put on on resentence before the court, including evidence about employment, evidence about an apprenticeship, evidence about his mental state and his treatment.

GUMMOW J: Where does Justice Simpson join issue with paragraph 18?

MR GAME: Paragraph 39 is the main one.

GUMMOW J: Thank you.

MR GAME: Although we have analysed it in the language of the elements of the offence, we would adopt everything that her Honour says in that passage. May I also mention that in the position of the accused in this context we would pick up the found provocation.

GUMMOW J: Were these reserved judgments?

MR GAME: Yes, your Honour.

GUMMOW J: It is a pity really that section 18 being somewhat compendiously expressed, paragraph 39 being forcefully and fully expressed, there was not further consideration in the majority judgment, but there we are.

MR GAME: Yes, your Honour. Well, the case that I had in mind that I could not remember was Cornelissen - that your Honour was one of the members of the court, and in our submissions in reply we have set out another case – this is at page 2 of our reply – where we have developed this argument. We have gone through and analysed the situation in the context of Wilson, Overall, Cornelissen and this other case of Mencarious, which is in footnote 9 on the second page.

So, in our submission, that which appears in paragraph 18 of his Honour’s judgment in the last sentence clearly, in our submission, misconstrues in an adverse way the level of culpability that is attached to unlawful and dangerous act manslaughter. It is that and the erroneous rejection of provocation which enabled him to move into what he found at paragraph 21. Now, there is something I just said - - -

BELL J: Can I just take up with you on this question of the provocation aspect of it? I do not read the appellant as having in any way put forward provocation as an explanation for what happened. He did not attribute significance to that, so it seems in his evidence - - -

MR GAME: But he mentioned the threat – he spoke of the threat, he gave evidence about the threat and he - - -

BELL J: Well, I think it is on page 26 of the appeal book.

MR GAME: Of the appeal book?

BELL J: Yes.

MR GAME: It starts on 25. Yes, your Honour, may I say this, and this is a slightly different territory, but a decision of Chief Justice Mason in a case, I think, called.....said that a person does not need to explicitly raise provocation in order to have it found, but in this case he has said “All that I was hearing was that he” – Van den Bemd – “would kill my brother and kill my family, that is about it”. So a finding of provocation is well warranted when you have got him saying that and then doing the act, regardless of what is put to him in cross-examination.

CRENNAN J: I think the top of page 49 you have the Crown conceding that there was some provocation.

MR GAME: Van den Hoek is the name of the case. There is something I said on the run a moment ago which may be relevant to all of this which is that in the position of the accused in terms of risk of serious injury the position of the accused is the position of a person who has been provoked in this way in these circumstances. I am thinking of cases like Green in this Court and Stingel, which is a very different case.

BELL J: But no one is in the Green or Stingel territory here. This is - - -

MR GAME: Absolutely not, all I am making is a proposition of principle that in the position of the accused here means in the position of a person about whom which there is a found provocation having an appreciation. That is the structure of the judgment and our argument. Now, one comes back to the question about how one identifies House v The King error in a case such as this. Whether I am right or wrong about - - -

GUMMOW J: House v The King is operating at two levels, is it not?

MR GAME: Sorry?

GUMMOW J: Is it not operating at two levels in a way? Assume you are correct and assume the Court of Criminal Appeal fell into error, what then do we do? Do you want us to simply dismiss the appeal to the Court of Criminal Appeal, do you not?

MR GAME: I do, your Honour, yes.

GUMMOW J: That would involve us in taking some view, would it, of the adequacy of what the primary judge had done?

MR GAME: Section 37 of the Judiciary Act enables you to make such orders as the Court of Criminal Appeal, so that puts you in the shoes of the Court of Criminal Appeal. So if you came to the positive conclusion that the Crown appeal should have been dismissed, that is to say that error of the kind asserted by the Crown has not been established, then you would make an order dismissing the appeal to that court. Were you of the view that the Court of Criminal Appeal fell into error but you did not come to the positive conclusion that the appeal should be dismissed, then you would uphold the appeal but remit the matter to the Court of Criminal - - -

HAYNE J: In particular, if we were to find specific error in the Court of Criminal Appeal but not last class House v The King, it would be a case of remitter, would it not?

MR GAME: That is true. Then we would have to get our running shoes on in terms of how one enforced that judgment. Implicit in that which I have said is that no House v The King error has been demonstrated and maybe, whether I say it well or badly, I will try to draw out some of the matters that will be necessary to establish the last class of House v The King error for the Crown appeal to have succeeded. Leave or no leave requirement, section 5D has in it a discretionary aspect. Section 5D has in it a discretionary aspect which enables or requires the Court to make a discerning judgment about whether a case raises a question of principle or whether it be markedly below the range but of such an order that the discretion should be engaged.

I should mention in passing that there is a New South Wales case of Wall, which we have referred to in our submissions, shortly to be reported, which sets out the principles on a Crown appeal and specifically adopts the language of Justice McHugh as one of the steps in a Crown appeal. It is a judgment of the Chief Judge at Common Law Wood. So that is the starting point.

The second point is to ask oneself as a question – one moves to the House v The King question. Has there been some misapplication of principle which, although not apparent from the reasons, can be deduced from the outcome? That is the House v The King last category question. The next step is to say and to recognise that this takes place in a statutory context and framework in which one has section 3 of the Crimes (Sentencing Procedure) Act and section 21A, which requires a series of steps and to ask oneself in that process about the way – sorry, and also the provisions that deal with, as a second step, the imposition of a sentence of periodic detention once satisfied that periodic detention must be imposed. So one then brings into the House v The King aspect the consideration of the structure of the reasons against the statutory framework.

Then, in our submission, one brings into the House v The King exercise the factual findings made by the sentencing judge. I have in mind here the clearly, in our submission, correct proposition that the Court of Criminal Appeal was not free to make findings of fact. There is no suggestion – and it does not matter for this case, but, in our submission, something like a Fox v Percy exercise would apply. There are New South Wales cases which say that a factual finding by a sentencing judge cannot be overturned unless it was clearly not open. That is to be left for another day. But this next step in the House v The King exercise involves an acceptance that the trial judge heard evidence and made findings of fact involving questions of nuance about the offender whom she was sentencing.

Next in the House v The King exercise is – because the ultimate question is whether or not the sentence is so low that it could not be appropriate for the found offending – the next step in this case in the House v The King question is a recognition of what is described as the protean nature of manslaughter, that is to say, the idea that – and it flows through his Honour the Chief Judge’s judgment in this case and in KT – what might be described as an overriding need to find consistency as somehow informing this House v The King exercise. That is, your Honours will have appreciated, another specific point of departure by Justice Simpson and as strong as the one I made before. So one then must recognise that.

GUMMOW J: Could you just repeat that again?

MR GAME: Yes, your Honour. The next step is that when one is dealing with an offence of manslaughter, one must recognise the protean nature of manslaughter and the difficulty of establishing any particular pattern or otherwise of sentencing, but the critical point is that there is in sentencing for manslaughter not an accepted, nor an acceptable overriding need to find consistency that could, as it were, drive a House v The King error. That also, for the reasons that we have given in our written submissions - and I have in mind particularly that case of Bloomfield - must inform the exercise of the House v The King exercise.

Then, were one, shall one say – had one gone through all those steps examining her Honour’s findings, were one to find House v The King exercise one might be informed by considering cases that truly were similar, truly were at the lower end of the range as put, but that is not for the purpose of lining up this case with that case in any direct sense. It is for the purpose of identifying whether or not the outcome in this case is demonstrative of error in the processes that were followed, so it is not a direct connecting up of results. It is an idea that looks to the process and the outcome in this case and then one looks at other cases which may inform the underlying process.

So, for example, in Dodd it involves a consideration of what actually occurred in that case, what actually was the criminality which was going and getting a gun and shooting the person’s husband. That last step then involves, if one is to demonstrate House v The King error in these circumstances, and we would submit that for the reasons I have given it is a very difficult exercise in a case like this at all, but would be to ask oneself, having found those facts by her Honour against the consideration by her of the statutory framework for factual findings in the common law requirements about what – I am sorry, that a common law – propositions about sentencing for manslaughter which I neglected to bring in but her Honour does that by reference to Hill v The Queen and similar cases.

One would then have to ask oneself the question. It is a very difficult question, in our submission, and in our submission could not be answered positively in this case that on the facts and circumstances found in this case, found as they were by her Honour at the lower end of what she means by the lower range of culpability, does consideration of other sentences of a similar kind lead one to, in sentences imposed for them, conclude that her Honour must have erred in the process of the reasoning that she adopted. That series of steps, in our submission, is all consonant with authority and it is ordered and orderly and that is the way in which it would be conducted in this case. In our submission, clearly it was not the exercise that was conducted by his Honour the Chief Judge. So I have taken a little longer than I thought but those are our submissions.

GUMMOW J: Thank you, Mr Game.

BELL J: Mr Game, if one goes back to the Court of Criminal Appeal’s judgment in MacDonald, the court - - -

GUMMOW J: That is 12 December 1995.

BELL J: The court in that case found that it was an error for the sentencing judge to have approached that most unusual case with very strong subjective features in a way that did not involve the imposition of a sentence of full-time custody. There are other statements in Alexander and elsewhere in which the Court of Criminal Appeal has expressed the opinion that a sentence of other than full-time custody is a rarity, or words to that effect.

Now, accepting that it is always acknowledged that manslaughter is a protean offence embracing widely differing culpability and that there will be cases in which it is appropriate to impose a sentence other than of full-time custody, what are the features of this case that put it into that class and that meant that the Court of Criminal Appeal erred in arriving at a conclusion of manifest excess – manifest inadequacy, sorry?

MR GAME: Yes, your Honour. May I say first that MacDonald is a case where there is a much higher level of culpability than here for the single reason that it involves the use of a knife, and the single reason that it involves the use of a knife involves a level of foresight, whatever you like to use, of possible consequences of a far higher order than involved in a single blow to the head in circumstances such as this, and it may be difficult to articulate with language how one goes beyond that. In particular cases it may be hard to find the language to describe it, but in the decision in MacDonald it is tolerably clear that it is the use of the knife which is the thing that marks that case out; that is on the last page:

Nevertheless, the respondent, by his deliberate act involving the unlawful and dangerous use of a knife –

In our submission that is at the heart of it. But before I come back to the answer there are subjective circumstances and subjective circumstances, and as I said section 21A of the Crimes (Sentencing Procedure) Act recognises that itself because it speaks of such, affecting the seriousness of the offending.

We are not talking here about subjective circumstances like one had three mouths to feed, or one had terminal cancer, or something like that. What we are talking about – and that is what, in our submission, Justice McClellan is – sorry, so much is apparent from consideration in cases like Way in the judgment of the Chief Justice of New South Wales, and that is tolerably accepted, in our submission, as a matter of principle.

But what one is talking about here is culpability for offending in circumstances where there is a finding which amounts to that which her Honour Justice Simpson found, which was that it was a momentary aberration for a man of otherwise exceptional character. So the character is not, shall I say, a subjective circumstance that sits over here. What kind of a person he was, just as if he was a psychopath, sits in the centre.

The second aspect is – sorry, and it is the single blow. It is the constraints of unlawful and dangerous act, manslaughter to that, that is to say, the risk of serious injury may apply to the blow itself. But if you add to that the finding at page 263, which I have mentioned more than twice, the finding of provocation – so it is those factors which – and the other thing is that if one looks at her Honour’s judgment, it is actually framed in very, very careful terms. If you look, for example, at page 261, about line 32:

The manifestation of this humanitarian tendency is necessary attended by the utmost caution . . . the taking of human life is a grave action –

Then one finds not anything remarkable, but at page 264:

whilst retribution and general deterrence remain of importance, that importance is reduced to an extent –

So it is a very, very limited – she is not making the kind of finding that is being attributed to her. Then she has regard to the statistics. She says they are “a blunt tool” and that is correct in principle. Then when one comes to page 265, her Honour is saying all factors are relevant to the sentence of imprisonment, all factors are relevant to the second step, which is the imposition of periodic detention. One need not look past Dinsdale for that proposition. So that is how I would answer your Honour’s question.

GUMMOW J: Just before you sit down, Mr Game, can you just look at page 303 of the appeal book? The only order sought there is dismissal of the appeal to the Court of Criminal Appeal.

MR GAME: Yes, your Honour.

GUMMOW J: You postulated an alterative position, did you not?

MR GAME: Yes. The alternative would be, if the Court is not minded to make that order, an order that the decision of the Court of Criminal Appeal be quashed, the matter be remitted to the Court of Criminal Appeal to further consider the Crown’s appeal against sentence. If you did make that order, we would be – I will not push it or anything, but we may have to make some other application as to what happens to Mr Carroll.

GUMMOW J: Elsewhere.

MR GAME: Possibly, yes.

GUMMOW J: Yes, Mr Arnott.

MR ARNOTT: Whilst we are speaking about that, your Honour – and I say this against myself, we have discussed this - if that was the view this Court came to, in fairness we consider that remitting the matter would be the fairest approach because he has spent considerable time in custody and the Court of Criminal Appeal could then reassess the matter taking that into account, but of course we - - -

GUMMOW J: I think you are being a little bit elliptical.

MR ARNOTT: I am not intending to be.

HAYNE J: Can you explain it to me, please?

KIEFEL J: Yes, and me.

MR ARNOTT: I am sorry. Well he spent a considerable time in custody already which means that if the orders of the Court of Criminal Appeal were simply dismissed and he returned to periodic detention until, I think it is about October or 1 November this year, he would have served periodic detention, a period of full-time custody which would really amount to greater punishment than was imposed by the sentencing judge.

BELL J: Because he would have served a period in full-time custody that would have been greater than the weekend detention requirements.

MR ARNOTT: That is right.

HAYNE J: Let us come to taws. Are you saying that were we to form the view that the appeal should be allowed that the Crown could, should or would give consideration to abandoning its appeal against sentence?

GUMMOW J: The appeal to this Court was allowed.

HAYNE J: If the appeal to this Court is allowed.

MR ARNOTT: I would need to get instructions - - -

HAYNE J: I understand that, of course.

MR ARNOTT: But, yes. I might say that prior to being sentenced he was also on bail, yes. Could I just warehouse the House v The King issue just for a moment because I know that is of - - -

GUMMOW J: “Warehousing” is a fairly loaded term.

HAYNE J: Usually associated with long firm fraud, but do go on.

GUMMOW J: It is probably about to become an even more ominous term.

MR ARNOTT: Could I just say this by way of a brief opening; that this case is not the case of KT, and most of the appellant’s submissions in this case have related to KT, which in our submission were not applied to this case, and a number of Crown submissions that were made to the sentencing judge were not taken up by the Chief Judge as well in the appeal. In Markarian, Justice McHugh referring to the error that Justice Hulme made, said that a judge of his experience would probably not have made the error he did had he had regard to the judicial statistics which indicated that the sentence being - - -

GUMMOW J: Where does Justice McHugh say this?

MR ARNOTT: He said this at page 389.

GUMMOW J: It seems to assume a knowledge of the “experience” of several hundred judicial officers throughout this country and in the absence of that, I do not see how you could single out one rather than the other of all those judicial officers, but, anyhow, where is the passage?

MR ARNOTT: Page 386, paragraph 70, just halfway through the paragraph there he says:

I think it very likely that a judge with the experience of Hulme J would have imposed a proportionate sentence if he had used the instinctive synthesis approach instead of the approach he followed.

He referred to the fact at the bottom of page 388, paragraph 79 that:

A further source of information about the sentences imposed by other judges is the sentencing statistics produced by (in New South Wales) the Judicial Commission. Hulme J referred to these statistics –

and his Honour said that had he had regard to those for a moment, it would have - - -

GUMMOW J: This does not represent any view of the Court, does it, in Markarian?

MR ARNOTT: The proposition I am putting does not depend on that, your Honour. If I could just develop this?

GUMMOW J: All right.

MR ARNOTT: He says that it would have indicated a danger lurking in the approach that he was taking. The submission I would make is this, that the Chief Judge commenced with a discussion by reference to KT in the monograph. He referred to the decision of KT for two reasons.

GUMMOW J: Is there anything you get out of Markarian from the joint judgment of four members of the Court?

MR ARNOTT: Not for the point I am making here, your Honour. The reason why the Chief Judge referred to KT was for two reasons. One was because he had a young person before him, a man of 20 years of age, and also because it indicated to him, that is, it enlivened his instincts that there was a danger lurking with respect to the sentence that was imposed upon this particular offender. The reason we say that is this, that when his Honour actually came to sentence the appellant, it is quite clear that he departed dramatically from both the statistics and the sentence imposed in KT. The sentence imposed upon KT was four and a half years, whereas the sentence that the Chief Judge ultimately imposed upon the appellant was a non-parole period of 13½ months, an effective sentence of 13½ months.

In other words, the submission I am making is that any guidance that he got from KT and the monograph by way of an enlivening of his instincts were completely divorced from the sentence that he ultimately imposed. In fact, the only statement of principle that the Chief Judge made was at page 287 of the appeal book at paragraph 21 where he says that:

It will be a rare case where the appropriate punishment for a manslaughter committed in these circumstances does not involve a term of full time custody. This was not such a rare case.

That equates precisely with what Justice Simpson said at page - - -

KIEFEL J: But the sentencing judge it was an exceptional case. In the reasons of the Court of Criminal Appeal in his Honour’s reasons is there an identification of what it is in the sentencing judge’s reasons to explain why his Honour said it was not a rare case?

MR ARNOTT: His Honour, at the bottom of page 286 at paragraph 20 took into account the subjective circumstances.

KIEFEL J: I appreciate that, they were a very important element here in the sentencing judge’s reasons, but you do not get to the consideration of the subjective circumstances until you have considered the object of circumstances. There was already a departure in the approach that the sentencing judge took to that taken by the Chief Judge not just in provocation, but also in the approach to the youth of the offender and the momentary aberration, matters which Justice Simpson brought out. Is it not that that basal platform of the view of the objective circumstances of the offence and the offender’s place within it which may permit you – if the sentencing judge was right in that approach and there was no error in that approach – would have permitted her to take rather more into account the subjective circumstances relating to his sense of remorse and his psychological condition. Is that an approach that you consider open or - - -

MR ARNOTT: We say that the Chief Judge took that into account. He was well aware of those factors.

KIEFEL J: But what I am trying is the Chief Judge departed from her Honour’s assessment of the objective circumstances of the offence and of the offender’s part in it. His circumstances objectively seem taking part in the commission of the offence. In doing that, was the Chief Judge required to identify an error of principle or of fact in her Honour’s approach?

MR ARNOTT: We say the approach the Chief Judge took was that he felt – whether this is a correct statement or not – if you turn to page 285, paragraph 16, about the last line, he referred to the fact that:

the respondent also accepted that the court will intervene to avoid manifest inadequacy or any inconsistency in sentencing where the sentence is definitely outside the appropriate range for the particular case –

The Chief Judge took the view that the sentence was so far from the appropriate offence and made even more so lenient by the imposition of periodic detention. He took into account the subjective features - - -

KIEFEL J: The difficulty I am having is, if it was so obvious that the sentence was so far out of range as to be described as manifestly inadequate, why his Honour went through the process of producing a different view of the objective circumstances of the offence, which differed from the sentencing judge? Should it not have been manifest inadequacy on the basis of the sentencing judge’s findings?

MR ARNOTT: It was. Your Honour is highlighting the issue of provocation. In our submission, the Chief Judge did not refine facts that were made. It was a question of weight to be placed upon that provocation. If I can just take you to the facts just to develop this a little.

HAYNE J: Before you do that, the starting point is to compare the sentencing remarks with what the Chief Judge says in the judgment, I would have thought. The sentencing remarks are at 263. A critical element of them is, is it not, there was some provocation from the victim?

MR ARNOTT: Yes.

HAYNE J: The question is – Mr Game says there is a difference – is there a difference between that conclusion, there was some provocation from the victim, and what is said at lines 19 to 20 through to 30 maybe, 29, is different from what the sentencing judge said, and we are not going to improve on that, I would have thought, by going back into the base facts.

MR ARNOTT: The problem was that to call it a finding of provocation is in some respects a misnomer. She refers to some provocation. What that was can be compared to what his counsel submitted on his behalf. Mr Bonnici said at page 15 of the appeal book:

I suppose the verbal threats, although idle and not excusing what’s happened, it had guns and shooting, though bravado to the family, certainly had an element of provocation -

The appellant himself - - -

HAYNE J: But the basic question you have to confront in your argument is the argument against you is that, as I understand it, it takes two steps. One, it says the sentence imposed was not manifestly inadequate, one chain of argument about that. Next separate chain of argument is the Court of Criminal Appeal majority erred in reasoning to its decision about manifest inadequacy, (a) because of what was said about provocation, (b) because of what was said about the objective gravity of the offence – compare paragraphs 18 and 39. Now, that is the territory for debate, I would have thought.

MR ARNOTT: Well, the difference between that rather elliptical finding by her Honour of some provocation, in our submission, was different to the finding of – or the assessment of that by the Chief Judge. What the Chief Judge does at paragraph 18 is firstly to state the House error, that it was manifestly inadequate, then at the rest of the paragraph what he is doing is reassessing and resentencing the offender. In so doing he is placing a different weight upon provocation than that which her Honour appears to have done.

Now, the difficulty is that when we get into the last limb of House v The King there is not really a limit to what you can say, and it is difficult to isolate facts. But what his Honour has done here – and this might be tied up with the comment that he made at page 279 of the appeal book where he says at paragraph 4:

The sentencing judge’s account of the facts contains one error which may have significance. Although the respondent had been about 15 metres in front of the group he had returned to them. He was about 1 metre from Mr Criniti when he brushed passed his brother to deliver the head butt.

Now, the appellant’s evidence in respect of that is to be found at page 26 where he says at line 20:

Q. So how close did you come to Mr Crinetti?

A. About the same distance my brother was.

Q. What’s that, about a metre or two?

A. A metre.

Q. Then is it the case that you heard him say something about a gun?

A. Yep.

Q. And at that point you stepped in, is that right?

A. Yes.

Q. And you decided to head-butt him, is that right?

A. Yes.

Q. Why?

A. I don’t know.

So his Honour could not know but it may well have been that the sentencing judge had placed emphasis on the fact that when there was mention about the gun the appellant was 15 metres away, but in fact he was right there beside his brother when this occurred.

BELL J: I must confess, I had understood when the Chief Judge noted that apparent error in the sentencing judge’s factual findings that he considered that her Honour’s findings were in that respect adverse to the appellant since they involved the notion that he had deliberately run back and charged at the deceased, whereas in reality he had been close by, and the incident had unfolded in a way that was not aggravated by any barging at the deceased or something of that character.

MR ARNOTT: Or there is another side to it which is that the appellant was under no threat at all, there was some provocation by the utterance of those words which was minimal, he was there with his brother. His brother, on the agreed facts, had pushed Mr Criniti and then gratuitously the appellant then head butted him. So, in other words, a worse scenario for the appellant.

KIEFEL J: In view of the comparison which Justice Hayne was encouraging you to undertake, some provocation, as you have referred to, in the sentencing judge’s reasons are joined with the circumstance there was one blow which was spontaneous and no weapon involved. They are also factors which I do not think appear to have been taken into account, except perhaps in a way to which Mr Game has referred when his Honour refers to offences in other circumstances involving other features. So, those features of the sentencing judge’s considerations appear to have been somewhat lost.

MR ARNOTT: The indiscriminate acts of violence which the Chief Judge refers to at page - - -

KIEFEL J: What does that imply “indiscriminate acts of violent”?

MR ARNOTT: What that means is to be found in paragraphs 18 and 19. His Honour means, at about line 22:

no suggestion that the respondent was under any immediate threat. Perhaps a dismissive word in response to Mr Criniti was justified but not a violent and aggressive act –

Then in paragraph 19, about 3 lines from the bottom:

without adequate justification intruded - - -

KIEFEL J: This implies a level of – “aggression” might not be the correct word – deliberate action which is somewhat removed, is it not, from the approach taken by the sentencing judge? I think that is really one of the points Justice Simpson makes.

MR ARNOTT: I do not know that it is re-casting, in our submission. They are the - - -

KIEFEL J: The sentencing judge refers to one blow which was spontaneous and his actions being inexplicable. That is not the approach that the Chief Judge appears to be taking.

MR ARNOTT: Inexplicable by the appellant, spontaneous. I think what he is doing is he is highlighting the seriousness of the offence but not re-casting the spontaneity of what happened.

KIEFEL J: He his highlighting the offender’s part in the circumstances; that is the focus. Do you see the difference that at least I see in the two approaches taken?

MR ARNOTT: Having found error in the fact that the objective seriousness was greater than found by the sentencing judge, he is then carrying out, as he is required to do, a reassessment of the circumstances of the offence.

KIEFEL J: I appreciate that he does that for resentencing, but this is both for resentencing and a consideration of what has gone wrong. Is that not right? Has there been any conclusion reached prior to paragraph 18 as to any problem in the reasoning of the sentencing judge?

MR ARNOTT: No, there is not, but what you get from his reassessment is the fairly clear indication that he has found that the offence was more serious than that painted by the sentencing judge.

KIEFEL J: By reference to its circumstances and the offender’s place in it?

MR ARNOTT: He has detailed that.

KIEFEL J: I mean, the inadequacy that his Honour is referring to is not one identified simply by saying this stands out so markedly on its own, without any other circumstantial references, as a case which must require custodial – a full-time custodial sentence, or is that what you say his Honour is effectively conveying?

MR ARNOTT: What he is conveying is this stands out as so inadequate he has, in paragraph – after stating the House error, he has then reassessed the matter and by so doing he has made it plain what the error is and that is her Honour’s obvious underassessment or overassessment of the provocation that was involved.

KIEFEL J: If I understand you then, what follows in paragraph 18 after the identification of the error as being a sentence which is manifestly inadequate, that what follows is not the reasoning leading to that conclusion. It is the following process of resentencing.

MR ARNOTT: That is right.

KIEFEL J: What do you say is the reasoning about manifest inadequacy? What reasons does his Honour provide towards that conclusion?

MR ARNOTT: Let me say this. It is difficult for him because he is in that last area of House v The King and there are limits to the specific - - -

KIEFEL J: Expression of this, I understand that.

MR ARNOTT: The specific factors that he can isolate.

KIEFEL J: But here a sentencing judge has provided reasons, but you say that the area that his Honour is in is that he is unable to express an error in that reasoning process? It lies simply within the realm of the sentence itself.

MR ARNOTT: No, I go further. I say that he has identified the issue of provocation as being one which, in his view, her Honour must have given too much weight.

KIEFEL J: So essentially we come back to the objective seriousness of the offence itself.

MR ARNOTT: Yes. Can I make just a number of things clear? We say that – if I can take your Honours to page 288 of the appeal book? The first line there:

In my view, the term of imprisonment which her Honour imposed was below the appropriate range for this offence.

I think that is one of the central planks to my friend’s argument. He says that that picks up the statistics and the monogram.

Now, our submission is that the Chief Judge’s reference to the statistics and the monogram, as I say, was just something which enlivened his instinct that there was something wrong about this particular sentence, that he did not use ultimately for the reasons that we have set out in our written submissions the vast difference between the sentence that was imposed and KT, the vast difference between the sentence that was imposed and the monogram, beyond enlivening his instincts. So at paragraph 23, in our submission, it is to be read in these terms:

In my view, the term of imprisonment which her Honour imposed was below the appropriate –

We emphasise the word “appropriate” – discretionary –

range for this –

case in hand. If your Honours were to read it in that fashion we say as a matter of construction, reading the judgment, that that is how it should be read.

MR ARNOTT: We entirely agree that the statistics and the monogram do not create a range. Can I just say a number - - -

HAYNE J: Just before you do that, can I take you back to your answers to the questions you were being asked by Justice Kiefel? Understanding the decision of the majority in the Court of Criminal Appeal as to manifest inadequacy as being fourth-class House v The King, and not admitting of development of reasons, is it open to argue - which I understand to be the essence of Mr Game’s argument in this respect - that the reasons of the majority in the CCA show that the court has mistaken the objective circumstances of the offence which form the necessary foundation for its conclusion of manifest inadequacy. There are two errors - I think only two errors - that are alleged: one, the treatment of this subject of provocation; and, second, the identification of the objective seriousness of the offending conduct. As I say, I invite attention to a comparison of 18 and 39 of the reason. But that is the argument as I understand it – in part, at least, that is being advanced against you. What is the answer?

MR ARNOTT: Yes. The short answer we give to this is in resentence in the way in which his Honour reassessed the matter.

HAYNE J: It seems to me that is a rather difficult position you put yourself in because, how do you determine manifest inadequacy without some understanding of the objective circumstances of the offending with which you are dealing? And if you are saying that the objective circumstances of the offending with which you are dealing are not those as

found by the trial judge, that is a case of specific error. It is not a case of last class House v The King. I think you are putting yourself in what should be referred to as no person’s land.

MR ARNOTT: We say that the judge has not refound facts, but he has found that the judge has put too much emphasis on the issue of provocation.

HAYNE J: Can I be blunt with you. Do you accept that what appears after the first two sentences, that is, from line 19 through to 31, is a different factual platform for sentencing from that used by the primary judge?

MR ARNOTT: No, we do not accept that. Can I just say one last thing?

GUMMOW J: Of course you may. Counsel can always say one last thing.

MR ARNOTT: That is, there was a neat point raised by my friend in his submissions that, does the fact that the Court of Criminal Appeal imposed the same length of sentence indicate that it was within the range and reference was made to Dinsdale and the judgment of Justice Kirby of that. Firstly, Justice Kirby referred to the fact that that was conventional rather than a mandatory thing which he has done, but, secondly, if your Honours look at the case of Dodd, and I am not asking you to take it out, in fact that is the very thing that was done. A sentence of three years full-time custody was converted to three years periodic detention and, in fact, backdated in the same way that the Chief Judge did in this case to take account of time already spent in periodic detention. They are my submissions.

GUMMOW J: Thank you. Yes, Mr Game, any reply?

MR GAME: I will be brief. If Mr Arnott is correct, then up until line 2 on page 286 one has just a recitation of submissions and some comments about KT and some other cases that enliven an instinct and then - - -

GUMMOW J: The heading “Consideration” is indicative.

MR GAME: I am sorry?

GUMMOW J: The heading above paragraph 18, on page 286 “Consideration”, is indicative of his Honour’s process of thought.

MR GAME: Yes. Then the finding of error is made and concluded after five lines under “Consideration”. Then, although one would not know it, everything that follows is an exercise in resentencing, including, as Mr - - -

GUMMOW J: Everything that follows from what particular point?

MR GAME: The word “inadequate” in the fifth line.

HAYNE J: Line 19, appeal book 286.

MR GAME: Yes, your Honour. Yes, everything from line 19 is resentencing, even, although, his Honour does not express himself in the language of resentencing at all and even, although, he has just been reciting submissions until consideration. So, our opponent’s argument really collapses and, in our submission - - -

HAYNE J: Well, assume that that submission were to be accepted for the purpose of debate, what is the difference between what is said about the subject of provocation there with what the trial judge said, other than the adding of some editorial comment, it was an idle boast which could not have justified a violent response?

MR GAME: Your Honour, as Mr Arnott himself put, was that at the least – and he did not use the words “at the least”, but he did use the words giving provocation too much weight by the sentencing judge. We would say more, that his Honour is putting to one side altogether the finding of provocation. But the language, your Honour, one has to look at the detail. The threat that was found was a threat to kill the whole family.

The question of justification is not what one is looking at when one is looking at provocation; people in provocation always do things which are not justified. That is not an articulation in a meaningful way of a difference of opinion about her Honour’s found facts. It is a rejection of them.

Now, we would submit that – sorry, I have said this, but the structure of the judgment just does not support the approach that our opponents take to this case. Now, what we say about the question of demonstrating in a House v The King – I am sorry, I should add to that that in anybody’s book, identification of House v The King error in the fourth sense, as your Honour Justice Hayne has put it, does not admit of simply stating a conclusion and then without extracting in a careful way in the way in which I have put to the Court should be done, how that error is articulated. As Wong and Dinsdale say, you have to demonstrate there and not simply state it.

Now, once the factual findings can be – and it does go – his Honour is – there is one other aspect which has emerged which is significant, obviously, and I have brought that out in her Honour’s findings, but I did not draw it out enough perhaps in the approach of the Chief Judge, which is that the spontaneity of the activity is not being – it is being sidelined or rejected by his Honour, the Chief Judge.

But what I wanted to say centrally is this, that once you reinstate her Honour’s factual findings, and once you take away the erroneous characterisation of unlawful and dangerous act, then the foundation for paragraph 21 falls away and you are no longer able, and the Crown is no longer able, to demonstrate a range, as they would put it, outside which this offence sits.

What her Honour says at line 30 on page 263 stands where it should always have stood, her finding on that material that the offence stood towards the bottom of the range of objective seriousness. Then if one does seek and obtain elucidation from the many other sentences, as her Honour did, it is impossible, in our submission, for the Court to demonstrate error. So that the approach that this Court should adopt is an acceptance of that which her Honour, Justice Simpson, said, which was, namely, that error had not been established. So, that is why the first order we seek in our submissions can and should appropriately be made.

BELL J: Her Honour’s findings in that respect were that the sentencing judge was not in error because this was a case in which there was an exceptional subjective case.

MR GAME: Yes, your Honour, but when she says accepts subjective case, she means everything. For example, at paragraph 44, single momentary aberration. That is not just a comment about a subjective subjective; it means those personal factors that are relevant to the commission of the offence. It means all of that. Her Honour talks about a correct identification of the objective gravity, and she is bringing in all of the factors that are relevant.

KIEFEL J: That is at paragraph 39.

MR GAME: Yes. Tantalisingly, Mr Arnott referred to particular orders, but I am not absolutely clear what was being said except that Mr Carroll cannot go back to the original position on which he stood if the appeal is upheld.

We would be content for an order, if that is what he is advocating, that if we succeed the appeal to the Court of Criminal Appeal be dismissed. I am not sure whether he was offering us more than that, but we would be content, if that is what he is offering as a concession, if the Court is minded to make such an order, for such an order. If the Court pleases.

GUMMOW J: We will take a short adjournment to consider the course we will take.

AT 4.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.32 PM:

GUMMOW J: The Court will consider its decision in this matter. We will now adjourn until 10.15 am tomorrow.

AT 4.32 PM THE MATTER WAS ADJOURNED