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High Court of Australia Transcripts |
Last Updated: 8 June 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S137 of 2011
B e t w e e n -
JIHAD MAHMUD
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S121 of 2011
B e t w e e n -
DEREK MULDROCK
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON
J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 8 JUNE 2011, AT 2.15 PM
Copyright in the High Court of Australia
__________________
MR A.W. STREET, SC: May it please the Court, in the first matter I appear with my learned friends MR G.D. WENDLER, MR A.L. TOKLEY and MR A.K. FLECKNOE-BROWN for the applicant. (instructed by John Hertz & Associates)
MR C.K. MAXWELL, QC: I appear for the respondent in both matters with my friend, MR A.J. ROBERTSON. (instructed by Solicitor for Public Prosecutions (NSW))
MR R.G. ORR, QC, Acting Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MR A.M. DINELLI for the Commonwealth Attorney-General intervening in the first matter under section 78A of the Judiciary Act. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friends, MR R.M. MITCHELL, SC and MS C.L. CONLEY, on behalf of the Attorney-General for Western Australia intervening, and I also have instructions to appear for the Attorney-General for Queensland intervening. (instructed by State Solicitor (WA) and Crown Law (Qld))
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney-General for New South Wales who intervenes in the first matter. (instructed by Crown Solicitor (NSW))
MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, on the instructions of the Attorney-General for South Australia intervening in the first matter in support of the respondent. (instructed by Crown Solicitor (SA))
MR M. THANGARAJ, SC: Your Honours, I appear with my learned friend, MR D.P. BARROW. (instructed by Catherine Hunter Solicitor)
FRENCH CJ: Yes, now, Mr Street, we would be assisted if you would confine yourself initially to the question whether a grant of special leave is warranted in the first matter.
MR STREET: Your Honours, can I, in that regard, deal with the questions that we seek to advance in respect of the two grounds on which we say that there is an interference with the integrity of the courts within the Kable doctrine. Those two grounds are, first, in respect of an interference in the judicial function by reason of the impact on the core function of discretion in sentencing and, secondly, your Honours, in relation to the impact on the distortion of fundamental sentencing principles.
Your Honours, if I can, I would seek to deal, consistent with the outline of propositions, with the first issue which is, in essence, raising the point of the interference, in essence, with the exclusive function of sentencing in criminal matters. Your Honours, in that regard what we would seek to do is, first, touch very briefly upon the history. If I may - - -
HAYNE J: Before you do that, is the premise for this branch of the argument the first sentence at paragraph 27 of your written submission:
It is no function of the legislature to fix the custodial sentence for a criminal offence.
Is that the premise?
MR STREET: Yes, your Honour. In that regard, your Honours, can we just start with the proposition of dealing with, first, the content of the power in section 73 and the inclusion of the word “sentence”. As your Honours would well appreciate, in terms of history, the term - - -
GUMMOW J: In terms of history, the punishment for indictable offences was death.
MR STREET: Your Honour, to the extent that that was the punishment, it was controversial. That controversy is summarised in the passages we referred to in the history of criminal law in New South Wales. That controversy was one in respect of which the mandatory punishments that were being imposed gave rise to considerable disquiet. Can I just take your Honours very briefly - - -
GUMMOW J: Maybe it did, but so what?
CRENNAN J: May I ask you a more current question if I can? In relation to what is put in paragraph 27 what do you say about section 54B(2) of the Act, which is accompanying your materials?
MR STREET: Your Honours, we say in that regard that the discretion has been one that is materially adversely interfered with by the mandatory non-parole period starting point because what one has at the outset is a predetermination of the matter, and this is at the heart of both limbs of attack in respect of the provisions. What is involved in the application of a standard minimum sentence being imposed at the outset is a predetermination in respect of those proceedings.
If, for example, the trial judge came on the bench and announced at the start of the case “I intend to fix a 15-year term in respect of this offence” without having heard from the parties and without having heard any evidence in relation to the question of sentence it is clearly one of prejudgment. That goes to the very heart of the issues which are protected within Chapter III in terms of impartiality and independence.
So having such a predetermination, in our respectful submission, creates an immediate problem in respect of the application of this division quite apart from, your Honours, the fundamental distortion of sentencing principle identified in Wong by, in essence, what is a clear two-stage approach and by an approach which must have an impact distorting ordinary principles of sentencing. So that, your Honours, can I come back to the first issue which we are seeking to touch which was - - -
FRENCH CJ: You would not complain that a maximum sentence in any way impermissibly interfered with the judicial function.
MR STREET: Your Honour, if it is a mandatory maximum sentence - - -
FRENCH CJ: A maximum sentence, a sentence beyond which the judge cannot - - -
MR STREET: No, your Honour, of course, I did not and I - - -
FRENCH CJ: You get one offence with a maximum sentence, A, and another offence with a maximum sentence, A plus B. The second greater maximum means that the judge is obviously looking at a – is required to look at a larger range of possible dispositions. It is a more serious offence.
MR STREET: Your Honour, inherent in a maximum is that that is the identification for the worst kind of criminal case in respect of that offence and if it carries with it a discretion to fix a lesser sentence, in our respectful submission - - -
FRENCH CJ: Well, how does that differ conceptually from the standard non-parole period?
MR STREET: Your Honour, here we have a predetermination which, in essence, amounts to a fixed determination of what the sentence is that is to be set. Parliament has purported to enter into the judicial arena. When one looks at the second reading speech, what one sees is that Parliament has purported to set the standard non-parole period, taking into account matters that are within the domain of the judiciary, taking into account the maximum punishment, taking into account the so-called principles of comparative sentencing, taking into account what is said to be the severity of the offence.
Now, they are factors identified in the second reading speech in setting the sentence and the legislation purports to set a sentence that is to be imposed. It does not identify, in our respectful submission, what your Honour the Chief Justice identified, which was simply a discretion to depart from a maximum. It goes much further than that. In our respectful submission it founders both at the outset in interference in the judicial function in respect of sentencing - and one comes back to look at the line of country we have sought to start with in relation to Palling, and if I can come back to that - - -
BELL J: Before you take us to the history in New South Wales where for about one year there was a grid-style matrix approach to sentencing in relation to a number of offences, and that having been enacted by the Parliament and having been found to be unsatisfactory one presumes the Parliament repealed that legislation, nonetheless up until about 1990 there was the mandatory penalty for the offence of murder.
MR STREET: Your Honour is quite right but the controversy identifies potentially - and this is why I went back to history - the reason why, on the Hawkesbury, the initial Inglis Clark draft was varied and departed from and we had inserted the word “sentence”, and if we stand back at that historical time that your Honour has identified, your Honour Justice Bell will recall that there were limited rights of appeal in terms of sentence and conviction at that time, and the significance of that is this, that when section 73 was drawn it was drawn in circumstances where it was intended to have work to do in ensuring consistency, parity, in relation to Australia generally, because the courts that were picked up, the Supreme Court and the Federal Courts through section 73 in respect of the sentencing power, would permit consistency and parity throughout Australia.
It was a sentencing power which, in our respectful submission, properly understood, in terms of the appellate power concerning sentences, properly understood must have in its core function some content. It cannot be something that he is simply rubber stamping a determination of sentence by Parliament and inherent in Palling v Corfield is, in essence, that the judicial function can be simply one of imposing the sentence in a way in which that somehow translates into giving it the cloak of judicial authority and impartiality and independence. In our respectful submission, when one stands back and looks at the history, and the history is important to identify the content of the appellate power given in relation to sentences, that appellate power in relation to sentences was something that was intended to ensure, in relation to the integrity of the court system, a power to deal with sentences throughout Australia.
GUMMOW J: You say the word “sentence” in section 73 is all about crime, do you?
MR STREET: Your Honour, section 44(ii) - - -
GUMMOW J: No, section 73 of the Constitution.
MR STREET: I understand that, your Honour. It must at least include custodial punishment. Whether it goes to monetary penalties or whether it goes to forfeiture are matters that one does not necessarily have to decide today, but, your Honours, it clearly must - - -
GUMMOW J: It was put in there to deal with Admiralty, was it not?
MR STREET: Your Honour, to the extent that there is a reference in that regard, it cannot be the content of what is in section 73 because section 44(ii) clearly identifies “sentence” in the Constitution in the context of custodial imprisonment. So the disqualification in respect of members of Parliament who are serving a sentence in excess of one year, or exposed to such sentence, clearly gives content in section 73 to the work being done by including this term as intended to embrace custodial imprisonment and, in answer to your Honour Justice Gummow, must include also punishment of death, capital punishment. So “sentence” at least includes that. If it includes that, and now one turns to custodial imprisonment, as was said by the Chief Justice in Totani, this is the area of criminal - - -
GUMMOW J: It is a false debate, is it not, because it is an order, is it not?
MR STREET: No, your Honour. It is one of considerable importance because it was one extending the scope of the appellate power for a particular purpose and it cannot be, in relation to applying ordinary principles of interpretation of the Constitution, that one would give the word “sentence” no work and treat it as being subsumed by judgments and orders. It has very special work to do. It has special work to do because of the special place of the criminal law and the special place of the criminal law recognised in the Constitution not just through section 73 and the use of the term “sentence”, but also through the work done in relation to section 80.
The symmetry between section 80 and section 73 may be one that is yet to be fully worked out, but, nonetheless, section 80 is dealing with the conviction side of the criminal law. Can I take it further than that. External to Chapter III within the Constitution we find in section 120, not involving a judicial power, the very detention exercise as a result of imprisonment addressed, in respect of Commonwealth offences, being dealt with in relation to where those sentences are to be carried out or those punishments are to be carried out.
So the criminal law and the application of the criminal law in relation to the Constitution was at the forefront of the forefathers minds, in our respectful submission, when on the Hawkesbury River on the Lucinda the world “sentence” was inserted and the word “sentence” was intended to ensure that there was a real power for this Court to ensure, through its appellate power, consistency in respect of sentences throughout Australia.
GUMMOW J: Section 120 talks about “convicted”, does it not?
MR STREET: It does, your Honour, and in that regard it is important, we would respectfully submit. It is outside Chapter III. It is outside Chapter III, but it is also dealing with the same issue of importance of criminal law which was touched on by your Honour the Chief Justice in the start of Totani v South Australia in paragraph 1 of your Honour’s judgment. So that what one has at the outset in identifying the work to be done by section 72, we have content given to the term “sentence” by section 44 that must mean custodial imprisonment, we have section 73 informed by section 72 in terms of independence and impartiality entrenched through section 72.
Those principles of impartiality and independence, in our respectful submission, are of material significance when it comes to the work done by the term “sentence” because if sentence was to be a hollow power, one which was to be circumscribed by the Parliament, which is what occurs on a mandatory sentence or on a sentence in which, in essence, the discretion is taken away such as suggested in Palling, the content of the appellate power in respect of sentence is removed. Can I take your Honours back to House v The King [1936] HCA 40; 55 CLR 499 in relation to the content of sentence. The relevant passage, your Honours, is on page 504. At about point 9 of the way down the page in the joint judgment of Chief Justice and Justice Dixon, Justice Evatt and Justice McTiernan there is the proposition:
But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it.
In our respectful submission, a core function of sentencing power - - -
FRENCH CJ: That is according to law, is it not? To talk about constraints upon the sentencing discretion, in a sense, begs the question whether the law interferes in some way with what you call, in paragraph 25, that:
“institutional integrity which is guaranteed for all State courts by Chapter III of the Constitution”.
The function of a State court in imposing sentence is to impose a sentence according to law. The question is, does a law which prescribes, whether it is a mandatory minimum sentence or a standard non-parole period with a discretion to vary, impair or distort the institutional integrity of a State court? I have great difficulty in seeing how that proposition works.
MR STREET: Your Honour, can I use what we would have said is the litmus test in that regard, it is whether or not that legislation is capable of bringing the courts into public – at least undermining public confidence, and in that respect, the key feature - - -
FRENCH CJ: Well, I do not know that you get much comfort from the public in this one.
MR STREET: But the key feature, your Honour, in that regard, if I may, is the independence in impartiality of the court. If the fetter on discretion is one that impairs the impartiality and independence of the court, a State court, then it offends, in our respectful submission, that doctrine and just standing back from that test, what we say here is you have a direct interference in that impartiality and independence because you have got predetermination, predetermination in an area where the individualised consequence of sentencing is fundamental, where identifying the nature of the offence and the circumstances and determining what sentence is appropriate for that particular offence requires an approach, in our respectful submission, that requires discretion as a core feature.
FRENCH CJ: So, does your proposition amount to this, that a law prescribing punishment for an offence can do no more than prescribe the maximum punishment that can be imposed?
MR STREET: Yes, your Honour, and that is entirely consistent, in our respectful submission, with the significance of the inclusion of the term “sentence” in section 73, entirely consistent with the symmetry that I sought to identify in Chapter III between section 73 and section 80 and, in our respectful submission, when one looks at the consequence of what occurs if that is not the position, it is an interference in the core feature of discretion that is required in order to ensure that the punishment fits the crime.
BELL J: Just going back into matters of history, at the time of Federation, was there a jurisdiction in Australia that did not prescribe a mandatory penalty for murder?
MR STREET: Your Honour, I am not certain of the answer to that, but what I would have said, your Honour, is it suffices that there was enormous public controversy about mandatory sentencing and if there was public controversy, what was being done when the word was inserted to provide for this power to appeal when there at that stage were limited powers of appeal against sentence and against – at least sentence in respect of the State courts. What was being done was something that was trying to ensure for the future a mechanism of providing for certainty and, in our respectful submission, parity by this Court having a real and substantial power to interfere and ensure throughout the common law of Australia consistency of sentencing and there is every reason why that should be so, and notwithstanding that it may have been that there were - - -
HAYNE J: How would that have worked, Mr Street, in the days when, for example, up to at least the mid seventies, I think, capital punishment was the only sentence available on conviction for murder in Victoria? Life imprisonment was, I think, the mandatory sentence in a number of other jurisdictions. The notion of uniformity across the country is getting a bit hard to create.
MR STREET: But, your Honour, the mere fact that there may have been earlier legislation that does not accord with principle is not a reason why one does not have to go back and look at the work that is intended to be done by section 73 and whether in its content permitting mandatory sentencing or minimum sentences or a standard non-parole period, in essence, is impairing a most important judicial function that is reposed under section 73 in this Court and that is why I was seeking to go back to what is the content of it. There in House v King the core content of the sentencing power is discretion and the core content of a power of appeal to deal with sentences must be to deal with inadequacy, to ensure parity and to deal with excessive sentences. That means, in our respectful submission - - -
FRENCH CJ: Or non-compliance with the legal rules under which sentence is to be prescribed, in other words, non-compliance for statutory requirements.
MR STREET: Your Honour, within the Constitution and, your Honour, there one has the question, the issue, and, in our respectful submission, that issue is a real issue that has not been dealt with in Palling, has not been deal with in Fraser Henleins and it is one where, when one comes back to look at the work done - which is why I sought to identify the significance at the time of Federation of the inclusion of the word “sentence”, what is the work that was intended to be done, and what is the power that is provided and is that power in respect of imprisonment and here, in our respectful submission, that must be at least part of the function caught by sentences, is that appellate power one which is at the implied limitation of State or Federal Parliaments.
Why would one read in words of limitation in respect of that appellate power? Why would one approach that appellate power as being one which was hollow and subject to simply giving the imprimatur to executive acts? That does not sit with judicial power found in Chapter III and if that is so, one then comes back to address the position from a matter of principle and starting, if I may, in that regard, having identified what we say was the content, one comes to what was said in Palling v Corfield [1970] HCA 53; 123 CLR 52, but before I take your Honours through that decision, can I just point out that in this case the issue that your Honour the Chief Justice has raised in terms of Parliament fixing a sentence was not actually even raised and run. Page 53 in the argument, Mr Pannam about point 2 of the way down the page, made a concession:
The Parliament can fix an automatic sentence without giving the court any discretion –
So the concession was made upfront, that concession is repeated at pages 67 and 68 in the judgment of Justice Walsh and I think Justice Owen on pages 67 and 68, at 67 at about point 5 of the way down the page it was conceded that:
Parliament could validly make a law which would require a court to impose a particular penalty –
So the argument was not raised. Go over the page into the judgment of Justice Walsh. At the top of the page, 68:
It could not be disputed, and was not disputed, that the Parliament may make a valid law by which no discretion is given –
Your Honours, just pausing - - -
FRENCH CJ: But this is not such a law. Why are we talking about Palling v Corfield?
MR STREET: Well, your Honour, because I am starting to deal, if I may, with the first ground of - - -
FRENCH CJ: Yes, but why are we talking about the question of law imposing a sentence in respect of which there is no discretion when the law we are concerned about, in fact, provides a discretion to fix a non-parole period which is longer than or shorter than the standard non-parole period?
MR STREET: Well, your Honours, partly because the first argument against the applicant is the proposition that on a comparator test Federal Parliament could do what the State Parliament has done and we say, on a comparator test, it patently could not.
CRENNAN J: But that is not an answer to section 54B(2) which his Honour the Chief Justice was putting to.
MR STREET: But, your Honour, our answer to 54B(2) is, in our respectful submission, one in which two things have occurred. The first thing, which is interference with judicial function, is purporting to set a sentence. It is no function of the State Parliament to purport to set a sentence. It is no function of the State Parliament to take into account the maximum punishment and identify a standard non-parole period for the commencement of the executive act or eligibility for parole. It is no function of Parliament to take into account sentencing principles in setting non-standard non-parole period. So that, your Honours, the first issue that arises is what Parliament has done and on the second reading speech it is very clear Parliament has purported to enter into the judicial arena engaged in sentencing. The second ground of answer that we have to your Honours is the distortion of sentencing - - -
FRENCH CJ: There is nothing about the proposition which you are touching on, that Parliament cannot impose a non-discretionary penalty which the court has to fix, there is nothing about that that is germane to the proposition we have to deal with here which is a law which allows for a discretion in the court. Now, if cannot address that question, you are really wasting time. This is not a case about a mandatory sentence in respect of which the court has no discretion. That is a case for another day.
MR STREET: If your Honour pleases. Can I focus on section 54B and identify that the first ground that we seek to attack that on is, as we have identified, that it is one in which – going to the legislation your Honours will see in subsection (2) the language “the court is to set”. That is a purported direction by the Parliament in a function that is part of the judicial function as to what the court is to do. It is identifying what the court is to do at the outset in respect of the offence before it.
It is purporting to do so in circumstances where, in our respectful submission, for Parliament to enter into the sentencing arena in a way in which it is purporting to set the eligibility date for parole, is, in our respectful submission, entering into a matter which is the preserve of judicial function and by permitting Parliament to do so, what one does is immediately entrench a predetermination for that particular prisoner. That prisoner is met with a position where, at the outset, one is starting with the predetermined position, I am going to set a non-parole period of 15 years, the head sentence follows as a matter of this legislation, State legislation, as a second step and in that regard that is the starting point.
CRENNAN J: But it is not predetermined when you read the balance of subsection (2). It is just a reference point, really.
MR STREET: Your Honour, if in fact the language was not one in which the court is to set and it was simply identifying a principle by which a sentencing court was to be guided of the kind identified in Wong, then it would not offend fundamental principle and it would not interfere with the judicial function. But here it is a direction to do something at the outset, to do something in which there is then, if one comes to the second way in which we put it, the interference and distortion of sentencing function, there is then an immediate relieving of the Crown of the burden of proving that this offence is one in which the aggravating features are such that it is in the midway point. One starts at that standard non-parole period, whatever the content of section 54A is, in terms of:
the middle of the range of objective seriousness for offences -
One has a position where the Crown is relieved of any burden to prove that it is, in fact, in the middle of the range of objective seriousness for offence and the burden is shifted to the prisoner to prove either mitigating facts in that regard or why it is not in that middle of the range. Your Honours, once one has that level of interference in what we respectfully submit is a fundamental sentencing function - fundamental sentencing principle, one has an interference that again runs into bringing the court into disrepute and undermining public confidence in the court.
HEYDON J: Why is that so? In what way?
MR STREET: Because, your Honour, in essence one has had this prejudgment, the predetermination of the outcome in circumstances where the facts have not been heard.
HEYDON J: But why should people think worse of the courts for that? They might think worse of the legislature?
MR STREET: Your Honour, it is one where, to the extent that the court is required to adopt a position where it comes into court and starts with a predetermination that is impairing the independence and impartiality of the court. It must be.
HEYDON J: You are not challenging the impartiality of the District Court of New South Wales, are you?
MR STREET: Your Honour, inherent in predetermination, if it occurs, is a want of impartiality and what we - - -
HEYDON J: I just do not understand that. Impartiality is a subjective state of mind – or partiality is a subjective state of mind.
MR STREET: Your Honour, it can be actual or in terms of one which is simply by way of appearance. In that regard for a judge to say at the outset of a case - and we will assume this legislation did not exist and one was back in the ordinary area in which sentencing was taking place - one would find an immediate reaction and application if the judge announced at the outset, not having heard any evidence on sentence, “I intend to set a punishment of 15 years non-parole period unless you can persuade me that there are reasons why I should depart from that non-parole period”.
HAYNE J: Well, Mr Street, that proposition simply does not grapple with the way in which the section is structured because the provisions are structured – see 54A(2) – by an identification of the standard non-parole period as representing the “period for an offence in the middle of the range of objective seriousness”. Now, the objective seriousness of the crime is surely to be determined by the circumstances of the offending in question, having regard to the verdict of guilt returned by the jury or such further facts as are found by the judge. There is no question of predetermination of the kind you identify.
MR STREET: Your Honour, can I just deal with what your Honour Justice Hayne has raised. There are many sentencing trials that take place but where there has been no jury trial, where there has been a plea of guilty and in circumstances where, at the outset, this is the first time the accused, or prisoner, is before the court. To have the court at the outset, before it has heard any evidence from the accused, pronounce that it is going to set a particular judgment - - -
HAYNE J: That is not what the court does, Mr Street. There is no - - -
MR STREET: No, your Honour - - -
HAYNE J: You will listen to me.
MR STREET: I am sorry, your Honour.
HAYNE J: There is no point in your putting up such a fanciful example.
BELL J: Mr Street, the court approaches the standard non-parole period in relation to offences where an offender has entered a plea of guilty upon the basis that it does not apply according to its terms and that for the reason that elsewhere in the sentencing statute one finds provision for the court to take into account by way of reduction of the otherwise appropriate sentence the circumstance of the plea of guilty. The two fit together in the way the New South Wales court has to date approached the matter by an acceptance that the standard non-parole period does not apply to an offence including one in the mid-range of objective seriousness in the case of a plea of guilty but serves as a guidepost. Does that make some difficulty for you in establishing this as a suitable vehicle to ventilate the point you seek to raise?
MR STREET: Your Honour, in that regard, the exceptions – it would if it took the case out of the application of section 54A and 54B, and it clearly did not and, secondly, the Court of Criminal Appeal clearly purported to apply that standard non-parole period in its approach.
BELL J: The court had regard to the circumstance that the legislature had fixed both a maximum penalty and that this was a table offence to which a standard non-parole period applied. It did not approach it, as I read the court’s reasons, on any basis inconsistent with the decision in Way’s Case.
MR STREET: Your Honour, our proposition is one where, to have a requirement – and perhaps I expressed it in a way which was not sufficiently clear – that the court is to set something, which is identified in 54B(2), without statutory exceptions of the kind that your Honour has identified – if, for example, one found excluded, as one finds someone under 18 years, in section 54D, the entry of a plea of guilty – what your Honour has said would be quite right in the sense that these provisions would not have applied. But they did apply; they were applied.
The point I was trying to get to – and to this extent I apologise to your Honour Justice Hayne if I did not put it clearly – and what I was seeking to do was to test the effect by analogy of what the legislation is doing and to test the effect by analogy by postulating that the effect of the legislation was translated into an independent judicial act and the problem it would face. If it cannot comply with or be done as an independent judicial act, how can it be that Parliament could require the judiciary to perform that act?
So the argument I was seeking to develop, your Honour, in relation to the question of what would occur if the court at the outset purported to declare what it was going to set was to try and identify the work that was done by section 54B(2) because what section 54B(2) does is identify at the outset what the court is to do and the scenario I was trying to provide as an analogy to test its validity was to assume for a moment to test whether it gives rise to prejudgment that this is something that the court was trying to do and if it was, would it pass that test? In our respectful submission, if one looks at it through the eyes of, could a judicial officer engage in the same conduct that is identified in section 54B(2) at the outset without the legislative regime, it throws up the problem in terms of impartiality and independence and the problem that arises in terms of Kable.
FRENCH CJ: All the judge does when addressing section 54B(2) and, as it were, explaining the court’s function to the convicted person is to say, “The law requires me to fix a standard non-parole period of X years in respect of this offence unless I determine that there are reasons for setting a longer or shorter non-parole period and now I will hear you and the other side as to the reasons for my doing one or other of those things.” Now, that does not have any impact on impartiality or independence. The court is simply stating, is it not, that it is applying the law?
MR STREET: Your Honour, there are two issues there, one whether it is a valid law, but the first issue is, is that something in terms of function that it is appropriate for Parliament to direct the court to do and could the court do it on its own, and if one stands back from that – that was the proposition I was seeking to develop before, that if it was the case that one was as a court to pronounce at the outset the intention before hearing evidence in language of the kind found in 54B, that is, “That I will set”, not tentative – and, as your Honour the Chief Justice identifies, it would be a marked difference if it were simply, “Why should I not fix a custodial sentence?” being raised at the outset. This goes much further than that proposition. This goes to the proposition, “Why should I not set X”, not having heard from the parties, not having evaluated the seriousness of the offence - - -
FRENCH CJ: Well, speaking for myself, I really do not find that analogy helpful. I think we are in a different ball park here.
MR STREET: I am sorry. Your Honours, can I then turn to the next way in which we respectfully submit that it founders on Kable, and that is the impact it has then in distorting fundamental sentencing principles, because the work it does is, in essence, to identify at the outset a matter for focus which is the eligibility of the prisoner for an executive act. It is not engaging in the task first required of imposing punishment. It is addressing a completely different purpose, a purpose in respect of when one is to be permitted to seek the executive indulgence of being allowed to serve a sentence away from prison. That criterion of determining when the standard non-parole period might be fixed is something very different from determining the punishment.
At the outset we have a distortion of sentencing principle by being required to address the eligibility date for executive act, a requirement by the Executive of the court to address that issue first, and identifying a set sentence in terms of that standard non-parole period that is then going to distort, in our respectful submission must distort, ordinary sentencing principle in terms of - - -
HEYDON J: What case holds that that is an illustration of the Kable doctrine.
MR STREET: I am sorry, your Honour, I did not - - -
HEYDON J: What case holds that a change in the common law or the received law, which one observer might say distorts those received principles, offends the Kable doctrine?
MR STREET: Well, your Honour, in our respectful submission, if the distortion is one which - - -
HEYDON J: What is the name of the case?
MR STREET: No, your Honour, I do not suggest that there is a case to date and the argument I am seeking to advance is that there is such a consequence that would flow if the distortion in essence impacts on impartiality and independence of the court.
HEYDON J: That takes us back to proposition 1 then.
MR STREET: Yes, your Honour. If it is legislation that impacts on impartiality and independence of the Court then, in our respectful submission, it then falls within that Kable doctrine and, your Honours, here, what we respectfully submit is that to have such a fundamental departure from sentencing principle where the legislature has purported to set the sentence, where the legislature has taken into account the maximum punishment, must give rise to a distortion of a kind that is likely to undermine the appearance of impartiality and independence. So, your Honours, in identifying the work done by 54B, the requirement to set, in our respectful submission, goes a lot further than what might be a yardstick or a principle to be taken into account. It is purporting to direct the manner of exercise of judicial power in relation to the setting of the standard non-parole period.
Your Honours, can I come back, if I may, to the outline of topics and propositions? Can I take the Court briefly to the decision in Wong [2001] HCA 64; 207 CLR 584 in relation to the distortion of sentencing principles and if I could take the Court to paragraph 74 of the joint judgment. On page 611, one has identification of a two-stage approach distorting, or at least departing from principle. In paragraph 75:
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis”. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
Just pausing, your Honours. One does not even start to engage in balancing the features of the case when one starts from a position that there is a presupposed objective – a middle of the range objective seriousness for the offence that is to be applied. It departs from addressing the particular facts in which the offence has occurred. Your Honours, at page 612 in the joint judgment, after the passage quoted from Chief Justice Gleeson in R v Gallagher:
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.
Here, what the judge must do is take into account somehow this artificial – we call it phantom offence – in the middle of the range objective seriousness, identify its content, seek to determine whether the content of that is in some way an applicable standard from which there are reasons for departure and, trying to identify whether that middle of the range objective seriousness for offences in a table is a sentence that should be set, does not reflect an application of the principles identified in Wong. It does not identify - - -
BELL J: In Wong, the Court was concerned with the primacy that had been given to a factor in the view of the Court of Criminal Appeal with respect to sentencing for offences of this character. The Court drew to attention the provisions of the statutory regime governing sentencing for this offence, noting that all the factors in section 16 were to be taken into account. There is no suggestion in Wong that if the Commonwealth Parliament had chosen to specify a particular factor was to be given particular weight that the Court would not give effect to that command. What is the value in taking us to the criticisms in Wong of the approach of the New South Wales Court which had, as it were, a legislative character in giving particular significance to a matter contrary to the tenor of the statute?
MR STREET: Your Honour, the significance is to identify the individualistic nature of sentencing and the difficult task involved in determining whether the punishment fits the crime being weighed now, in light of what was said in Wong, against a legislative regime that takes into account some unidentifiable middle of the range objective seriousness for offence concept, seeks to have that applied in addition to the facts that might be found and says at the outset that that is the sentence to be set. It bears no relationship to the punishment fitting the crime. It bears no relationship to the actual objective seriousness of the actual offence. It is a starting point which is set and it is a starting point, in our respectful submission, that is an anchored starting point and identified in that way, it is distorting the sentencing process that is undertaken.
Your Honours, in our respectful submission, to include, as is here done, a requirement to take into account something described as the middle of the range objective seriousness for offences as identified, is requiring the court to engage in a task in which the artificial phantom offence is left to be determined without any foundation but apparently as a result of the legislature engaging in part in the sentencing function for the court. Having engaged in part in that sentencing function, the legislature then has, in our respectful submission, created a distortion that means that giving effect to
such a provision is likely to undermine public confidence and is one, in our respectful submission, that falls within the Kable doctrine.
Your Honours, in relation to the second reading speech impact, I did refer in my written submissions to the relevant provisions in terms of setting and how Parliament took that into account. Your Honours, in relation to the reason why Parliament cannot pass such legislation and the attack I sought to advance on Palling in light of the observation of your Honour the Chief Justice, I do not seek to take the Court back through Palling, but, your Honour, we respectfully submit that by way of analogy, if the Federal Parliament cannot pass legislation of this kind, it could not be passed in the present case by a State Parliament. For the reasons we have sought to identify, it is one where there is an interference and a very real interference, first, in the judicial function to be performed of sentencing and, second, by way of the distortion that takes place.
Your Honours, can I just touch on one further aspect. The reasoning that is advanced against the applicant in relation to why this legislation could be passed by the Federal Parliament, in essence, turns on Palling. Your Honours, we respectfully submit that it is not a decision in respect of which the reasoning in terms of the removal of judicial discretion can accord with the content of section 73. If that is so, then the foundation for the comparator test falls away and if that is so, then one is in a position where one starts from the proposition that sentencing is something in respect of which it is a core function for the court to determine without impermissible interference. If that be the position, one then looks at this legislation and, in our respectful submission, to have predetermined a set standard by the legislature is first interfering with judicial function and, secondly, distorting fundamental sentencing principle.
Your Honours, can I turn to the second ground. Your Honours, in terms of the decision in this case, it is one where if, in fact, the Court is of the view that the constitutional issue is not one that appropriately arises, we nonetheless respectfully submit it is one where the Court of Criminal Appeal erred by interfering in this case in circumstances where the trial judge gave reasons for departing from the standard minimum non-parole period having given reasons to do so and having taken into account the standard minimum non-parole period, there is no error that could warrant interference by the Court of Criminal Appeal. If the Court pleases.
FRENCH CJ: Thank you, Mr Street. The Court will adjourn briefly to consider what course it should take.
AT 3.10 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.17 PM:
FRENCH CJ: We will not need to call on the respondent or the interveners.
This application for special leave to appeal against a decision of the Court of Criminal Appeal against New South Wales raises two questions for consideration. One, a constitutional question, whether provisions of the Crimes (Sentencing Procedures) Act 1999 (NSW) specifying standard non-parole periods to be imposed in respect of various classes of offences are invalid and, two, whether the Court of Criminal Appeal erred in allowing an appeal by the Crown against sentences imposed upon the applicant in the District Court of New South Wales.
The application for special leave was referred to an enlarged Bench of the Full Court of this Court by order of Justice Hayne made on 18 April 2011.
As to the validity of the standard non-parole provisions of the Crimes (Sentencing Procedures) Act, the applicant contends that those provisions create a rule for the determination of non-parole periods in fixing sentences that impermissibly interferes with a judicial discretion. He contends that the provisions distort, “The institutional integrity guaranteed for all State courts by Chapter III of the Constitution.” However, the relevant provisions fix a standard non-parole period for each of a number of specified offences and provide that the court may set a non-parole period that is longer or shorter than the standard non-parole period. The characterisation of the impugned provisions advanced by the applicant is not sustainable.
The applicant otherwise complains of a decision of the Court of Criminal Appeal in increasing head sentences imposed upon him and non-parole periods fixed in respect of those sentences. No question of principle warranting the grant of special leave is disclosed in relation to that ground. Special leave will be refused.
The Court will now adjourn briefly in order to allow the representatives for the parties in the Mahmud matter to withdraw.
AT 3.19 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.23 PM:
FRENCH CJ: Yes, Mr Thangaraj.
MR THANGARAJ: Your Honours, could I just briefly deal with ground 2 before I get to the important ground 1. Ground 2 deals with the question of significant intellectual disability and I just propose to follow the outline of oral argument that we provided earlier today. This was a Crown appeal and a severity appeal into the Court of Criminal Appeal and there was no ground of appeal stating that the finding of the sentencing judge of significant intellectual disability was, in fact, an error. It has only arisen since the matter was dealt with by the Court of Appeal. The matters that pertain particularly to this appellant are found in our written submissions at paragraph 11 – it should be 11, not 111 – and our reply at 17. I do not propose to take your Honours through that. Your Honours have read that. I do not think I need to go through each of the facts.
HEYDON J: Mr Thangaraj, I am having a bit of trouble hearing you.
MR THANGARAJ: I am sorry, your Honour, I will speak up.
HEYDON J: You were saying paragraph 11 to - - -
MR THANGARAJ: Yes, your Honour, it says 111, it should say 11. So in paragraph 11 of our written submission and paragraph 17 of our reply we detail a list of important considerations that go to the question of significant intellectual disability. I do not think I need to read those out for the Court, but they are all there as to the matters that were before the sentencing judge in the various reports. Importantly, two of the reports were tendered by the Crown and it was never suggested nor has it been suggested since that the matters found in those reports either tendered by the Crown or by the appellant’s then representatives were in any way inaccurate. So those findings have been the basis upon which he has progressed through that court and then into the Court of Criminal Appeal.
HAYNE J: Where can I find the sentencing judge’s finding on the matter?
MR THANGARAJ: Your Honour, the sentencing judge’s findings were unduly brief, I have to accept that. I am not sure if there were time issues. The matter had been before him on a number of occasions in Lismore and presumably his Honour had read some of the material before the final day. But it is correct to say when the Crown complained below that there were inadequate reasons, it is fair to say that his Honour could have and perhaps, with respect, should have detailed the reasons further. He simply said that looking at exhibit 1 and exhibit A, which was effectively the material tendered before the District Court, that on that basis he concluded that it had been accepted that the appellant had a significant intellectual disability. His Honour did not go any further than that to explain.
GUMMOW J: Which particular paragraph?
MR THANGARAJ: It is appeal book 66, your Honour.
BELL J: About line 15. It is not in issue that his composite IQ was 62.
MR THANGARAJ: No, and none of the testing that Professor Hayes or Ms Daniels conducted seems to have ever been challenged by anyone.
BELL J: So that his Honour’s reference to significant intellectual disability is a lay reference to what in former times might have been described as the condition of being mentally retarded.
MR THANGARAJ: Yes.
BELL J: The reference to “mild intellectual handicap” is in medical terms which embraces that lay concept.
MR THANGARAJ: Yes. The other medical terms do not include “significant”.
GUMMOW J: Where do we see the “62”?
BELL J: You refer to it at paragraph 11g, page 3 of your written submissions. It is a reference to Dr Hayes’ report.
MR THANGARAJ: Yes, I am just trying to find that in the appeal book, your Honour, the actual report - page 45.
HEYDON J: Line 30.
MR THANGARAJ: About line 30, yes.
GUMMOW J: Thank you.
FRENCH CJ: So the reference to exhibit 1 is a reference to that entire bundle of material, is it? Yes.
MR THANGARAJ: It would the Crown’s bundle that would have been handled up, and then exhibit A, or perhaps the other way around, would have been the report from Professor Hayes.
FRENCH CJ: Exhibit A was the Crown bundle according to the appeal book, and exhibit 1 is the defence bundle, and that is what his Honour is referring to.
MR THANGARAJ: Yes. Can I just very briefly take your Honours to this part of the judgment that deals with that. It is found at appeal book 122 and 123. At about line 15 or so:
The Crown does not submit that the respondent is not suffering from a mental disability and accepts this was a relevant factor when he was sentenced. In particular the Crown accepts that in the circumstances general deterrence was of less significance than would be the case in relation to a person who was not suffering a similar disability.
Then below on the same page at line 49 his Honour the Chief Judge said:
However, it is necessary in each case to consider all of the circumstances, including whether a low level of intellectual functioning of an offender is of any particular significance when considering the appropriate sentence.
Could I ask your Honours to go then to our written submissions at paragraph 11.
GUMMOW J: Paragraph 27 uses these labels, as it were. What the expert said was that your client functions at a level lower than 99 per cent of the population. Whether he has managed to get a driver’s licence, may not determine very much.
MR THANGARAJ: With respect to his Honour, Professor Hayes knew full well that he had a driver’s licence and that he had had a series of jobs. The evidence before the sentencing judge was that he was incapable of keeping of jobs and had had about 15 jobs which puts into a different light the finding that – and the critical word there is “although”:
Although Professor Hayes in her report dated 25 September 2008 expressed the opinion that the respondent suffered from “a mild intellectual disability” he has sufficient capacity to have obtained a driver’s licence –
With respect, it seems that his Honour is setting aside the finding of the expert with what follows. Then in the next - - -
HAYNE J: Just as to that setting aside, before you come to develop it, the Crown appeal paper is at 71 of the appeal book, is it?
MR THANGARAJ: The notice of appeal, yes, your Honour.
HAYNE J: The notice of appeal and where do I find the grounds?
MR THANGARAJ: The grounds are within the judgment at appeal book 115.
HAYNE J: That is the statement of the submissions. Is that to stand as the grounds advanced by the Crown in support of its appeal, is it?
MR THANGARAJ: If your Honour can accept from me that there was a notice of appeal filed with four specific grounds that has not found its way into the appeal book, but it is those four grounds.
HAYNE J: I see.
MR THANGARAJ: There was some issue at that time as to the Crown in Crown appeals needing to be more specific than simply asserting and so it was filed a bit later than the Crown appeal itself had been filed and it was almost a supplementary, more particularised notice of appeal and that is what it said.
HAYNE J: Well, the notion that there is not a real distinction between manifest inadequacy and specific error - - -
MR THANGARAJ: Yes. That is what lead to the - - -
HAYNE J: - - -is one that should not gain currency. There is a radical distinction between the two and I would have though that the accused person or the prisoner was entitled to know the kind of case that was to be made.
MR THANGARAJ: That is what happened, your Honour. With respect, the Crown did do that in this case and then we were informed and we dealt with the appeal on that basis, when they filed their further details of the asserted errors from below. I wanted to take your Honours to our submissions at paragraph 11, which are on page 2, just to read out – or if I could ask your Honours to read 11d.
Then we go back to the judgment at appeal book 122 at line 49. Paragraph 11d answers the question raised by his Honour at that point, but his Honour does not go to that extract. His Honour does go to other extracts from that report, but not the one that I had submitted below was the most important. Then finally, at appeal book page 123 at line 26, his Honour says:
Dr Muir concluded that the respondent understood the nature and wrongfulness of his conduct with respect to the earlier offence and that the circumstances confirmed that he was aware that his actions were a breach of the law –
Dr Muir also said that the awareness was superficial, and that is at appeal book 29, line 19:
Whilst he is aware that what he was doing was wrong, it is only a superficial awareness –
Your Honours, with that background, could I then move to, with respect, the important ground for this Court, which is ground 1, and following the outline of oral argument, I propose to make the following submissions, which are in the alternative. First, that the standard non--parole period:
does not apply to low range offences –
If that is incorrect, and it does apply to low-range offences, nevertheless –
it does not operate as a benchmark –
and three, if that is also incorrect and it does operate as a benchmark, then it is important that it –
be used as a final check –
rather than as an important part of the instinctive synthesis. So starting with the submission that a standard non-parole period does not apply to low range offences – in light of the earlier matter, I am going to be very careful about the way that I present this submission.
FRENCH CJ: It is always good to be careful.
MR THANGARAJ: There is a discretion to move away from the standard non-parole period - - -
GUMMOW J: Perhaps you had better take us to the legislative text – that might be - - -
MR THANGARAJ: Yes, your Honour. If I could ask your Honours to look at 54B.
GUMMOW J: We will more likely be on sounder footing then.
MR THANGARAJ: Section 54B, your Honour. I am sorry, 54B(2):
When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole - - -
GUMMOW J: Wait a minute. Are there not some earlier sections of a general nature?
MR THANGARAJ: Yes, your Honour.
GUMMOW J: What are they?
CRENNAN J: Starting at about 21 - - -
MR THANGARAJ: There are a number of provisions. There are the purposes - - -
GUMMOW J: Well, do not think that one reads this statute every day of the week.
MR THANGARAJ: I am sorry, your Honour. The starting point is the purposes of the Act are found under section 3 very early on, and - - -
FRENCH CJ: Section 3A, I think.
MR THANGARAJ: Yes.
BELL J: That needs to be read with section 5.
MR THANGARAJ: Yes, section 3A and then 5 and then the next important series of provisions are 21, 21A - - -
BELL J: Section 22 – this was a guilty plea, was it not?
MR THANGARAJ: Yes. It is very important, your Honour, in standard non-parole cases, with respect, for the reason your Honour said in the earlier matter. Then after that, 44, in relation to setting a non-parole period.
BELL J: Just on the way to that, I think it is probably appropriate to note 24A bearing in mind the nature of the offence.
MR THANGARAJ: Yes. Could I just say something about 24A at the moment, your Honour. That has an extra significance in a case like this because, while it can never be a factor of mitigation in that you cannot make a submission to a sentencing judge, “Well, he is going to have ramifications, he cannot do X, Y, Z”, that is a product of the offence. It is not a matter of mitigation that – but when determining release ultimately, and there is that tension between protection of the community in the Veen nature and not sentencing someone to a disproportionate sentence, the fact that there is a provision for the State to keep such an offender in custody because he or she has not demonstrated that release is appropriate at the expiry of the sentence, that is a relevant factor in determining other issues in sentencing an offender for such an offence, because the judge no longer needs to take into account or add an element – I am not trying to contravene what Veen is saying, but there is no need to impose a sentence that the judge may not have imposed simply because he is given or she is given extra provision for protection of the community.
I do not mean that in the way of – but taking that into account, there is no need to take into account that extra Veen [No. 2] protection of the community aspect because that can be determined later if necessary. That would be a far better time to assess whether or not the community needs protection by keeping that person confined when programs would have been undertaken, et cetera, rather than speculating now. So that helps resolve that tension between imposing a proportionate sentence, a purely proportionate sentence, and one that remains proportionate but takes into account protection of the community. After 44, then we get back to Division 1A.
FRENCH CJ: That concept of the range of objective seriousness in 54A, is that its first appearance in the Act?
MR THANGARAJ: I believe so, your Honour. I think it is the first reference, your Honour. So 54A says what the standard non-parole period is and then - - -
GUMMOW J: What does this phrase “objective seriousness” mean?
MR THANGARAJ: That is the problem if this legislation is to be interpreted as being a benchmark, because unlike guideline judgments, your Honour, there are no series of factors that help determine an offence or a range of offences that satisfy the description of middle of the range of objective seriousness. So it is a hypothetical case that a sentencing judge, if need be, and I am not so sure that the judge needs to, but if need be, may need to determine and recent Court of Criminal Appeal authorities, and I will come to those, which we say have not properly applied the legislation, with respect, they say that you need to determine the mid-range offence and then see where the particular offender lies in relation to that mid-range offence, but there is no guidance as to how that mid-range offence is to be determined and, inevitably, one sentencing judge would form a mid-range offence which would be different to another sentencing judge because unlike guideline judgments where there is assistance with a number of factors that will be taken into account to determine the typical offence, that does not exist.
BELL J: But on the other hand, it is a concept that is familiar in sentencing since, traditionally, one consideration is an assessment of the objective seriousness of the offence. I think the approach that has been taken by the court is that objective seriousness refers not only to the circumstances of the offence, but to those matters bearing on culpability or mens rea.
MR THANGARAJ: Yes.
BELL J: So in this case there would be no issue that in assessing the objective seriousness of the offence in terms of where this offence lay, one would take into account the fact that the offender was intellectually handicapped.
MR THANGARAJ: Yes. I think, with respect, that would be the appropriate way. It is a narrow way rather than – I mean, it is possible to say when you are looking at the objective seriousness, do we look at the objective seriousness of the offence, thereby do we include, well, it is worse than a particular offender committed an offence because he or she has committed that offence five times in the last three years, or do we look at it in a confined way and just look at the conduct and what bears on the actual conduct, and I think the latter approach is the preferable one. So the only subjective factor in this case that would play upon the objective seriousness of the offence would be what is in 11d of our submissions because if there is an appropriate linking between both aspects of his past, then they will both play a role in determining that. So to answer your Honour Justice Gummow’s question, I think it is a hypothetical case determined by - - -
GUMMOW J: What are the elements in the hypothesis?
MR THANGARAJ: That is why, in our submission, you do not use it as a benchmark because it is very difficult to determine what would go into such a case and there are so many offences which are committed in completely different ways - - -
GUMMOW J: What are the elements in the hypothesis postulated or required by the subsection, that is what I am asking?
MR THANGARAJ: There are not any.
GUMMOW J: So it is a subject of judicial exegesis, is it?
MR THANGARAJ: Yes, exactly, and, with respect, that is the problem because - - -
GUMMOW J: Is it explained in R v Way? I do not know. I am just seeking enlightenment, that is all, because at the moment I do not have any.
MR THANGARAJ: I will have to come back to that particular question, your Honour, as to what Way says about it.
GUMMOW J: We have to construe the statute.
MR THANGARAJ: Yes. In my submission, there is nothing in the statue to assist the formulation of such a case, but, more importantly, there is nothing in the statute that says even if Division 1A applies to all offences, so if the primary argument is wrong, even if it applies to all offences, there is still nothing in Division 1A that says it ought to be a benchmark.
HEYDON J: While it is in our minds, paragraph 118 in Way[2004] NSWCCA 131; , 60 NSWLR 168 at 191, it is said that you have to consider:
the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed - - -
MR THANGARAJ: Yes, but that is what the legislation says perhaps, but it does not really assist a sentencing judge to then measure the particular offender in that case against this objective middle test, the middle range case, because it is very hard to determine what the middle range case is. Yes, true it is what your Honour Justice Bell said of throughout the history of sentencing, a sentencing judge would have in his her mind what the level of seriousness is, but that is simply a question of how serious was the conduct. It does not necessarily measure it against a test of how serious it is per se for all the offences that could be committed in relation to that particular offence. It could be worst case category.
BELL J: That is the matter I was going to take up with you. One concept that is familiar to judges who are engaged in the business of sentencing is the notion of the worst case and that takes into account a range of possible offences, all of which might answer that broad description and by reference to that, one might approach a sentence towards the top if not the top of the range of sentences for the offence. I am just trying to understand what is conceptually more difficult for a judge in looking at whether or not an offence can be said to fall within the mid range of objective seriousness for offences of sexually interfering with a child of tender years.
MR THANGARAJ: For the proposition to work, your Honour, of course, a sentencing judge needs to be able to do it for all table offences. So it is not simply a matter of being able to do it for this particular offence, a child sexual offence, a sentencing judge – whatever your Honours decide is the appropriate approach would of course have to apply to all standard non-parole period.
BELL J: Yes, but in an individual case. Say, you have an offence, a 66A offence, what is particularly difficult for a judge in forming an assessment of whether or not this offence, in the circumstances in which it was committed, falls within a range described as the mid range of objective seriousness, having regard to conventional approaches to sentencing?
MR THANGARAJ: I think, your Honour, some of the difficulties would include the fact that intercourse has a number of different – there are number of different types and while there is a general but not concrete understanding that particular forms of intercourse are less serious than others, or the other way round, the Court of Criminal Appeal has made it clear that it is not always to be regard that way. There could be instances where certain things make it more or less serious. So that is just one element, but there are so many other elements. There might be the relationship between the offender and the victim - - -
BELL J: But all of these inform the assessment that a judge routinely makes of the objective seriousness of an offence. It has always been an issue about whether a particular form of sexual misconduct amounting to intercourse is more or less serious than another form of behaviour, but that it not a problem that one does not encounter generally. I am just trying to isolate what is particularly difficult about this exercise.
MR THANGARAJ: I wonder if it may be more difficult, your Honour, for a sentencing judge – sorry. It would be easier for a sentencing judge to say, “I regard the offending as being serious”, or, “I regard it as being relatively serious”, or, “I regard it as being in the low range”.
HAYNE J: Well, just so. I can understand creation of some scale of seriousness, but what work is the epithet “objective” doing? Is it a mere intensifying epithet? Surely not. Or is it referring to seriousness of the conduct regardless of the subjective circumstances of the prisoner? There are occasions in sentencing when one needs to treat separately subjective elements and objective elements. So what is this composite phrase “the objective seriousness”?
MR THANGARAJ: Well, because it about seriousness, it really reads as being limited to the objective factors.
GUMMOW J: That does not square with paragraph 118 very well, does it, of Way? It talks about facts explaining why it was committed.
MR THANGARAJ: I am sorry, your Honour, I should have been clearer. Objective factors in this regard include those subjective factors which play on the commission of the offence and so intellectually disability would be regarded for these purposes - - -
GUMMOW J: What would the subjective factors be?
MR THANGARAJ: That he had a particular intellectual disability which was involved in the commission of the offence.
KIEFEL J: Or in another case, motive, things like that.
MR THANGARAJ: Yes. Well, not so sure about motive, your Honour.
KIEFEL J: Could the reference to objective seriousness simply be a reference to all the relevant factors pertaining to the offence before the sentencing judge in the process of comparison with other reported cases that are regarded as proper comparators by the sentencing judge, that is, “objective” refers to part of a comparative process?
MR THANGARAJ: I do not believe so, your Honour. If it did, it would be extremely burdensome on any sentencing judge to have to literally read a sufficient number of like cases – if there are enough - - -
KIEFEL J: No, I did not mean it to be difficult. Perhaps I am not explaining myself. I had thought it to operate quite simply, really, in the sense that Justice Bell has referred, that in the normal course of sentencing, sentencing judges having a deal of experience are familiar with or ought to be made familiar with other sentences in a particular area of the offence. What they bring to bear in this part of the sentencing process are those factors in the particular offence in question, including motive, what brought it about, the number of people involved, such as allow an objective assessment against other sentences with similar factors enabling a comparison – objective in that sense.
GUMMOW J: There seems to be some process of abstraction going on and I am not sure what the criteria are for the abstraction – so that “unlike” is somehow treated as “like” and “compare”. They would all be “unlike”. That is the nature of humanity.
MR THANGARAJ: Your Honour, that is why, if we are correct, none of these problems - - -
KIEFEL J: But so long as the sentencing judge exhibits the factors that were taken into account from the offence in question and the factors which it is put against in the process of comparison on the scale of seriousness, starting perhaps with the known most serious, on a sentencing appeal at least, those appearing for the then prisoner should be in a position to argue against it. This must be commonplace. You are not suggesting that the process is incapable of being undertaken?
MR THANGARAJ: It could be undertaken with great difficulty and it would not be undertaken consistently across different courts or judges, I think, your Honour.
KIEFEL J: There will be differences of view. Sentencing is not a perfect science.
MR THANGARAJ: No, of course.
KIEFEL J: There will be differences of view.
MR THANGARAJ: Yes.
KIEFEL J: In particular, courts of appeal in sentencing attempt to maintain some form of consistency and try to ensure that all the relevant factors have been taken into account.
MR THANGARAJ: What has been happening with that task, and what has been expected by the Court of Criminal Appeal of the District Court, and no doubt the Supreme Court, is a sentencing judge makes a relatively precise, but not precise, finding of where in the range this particular offence lies. The authorities say it is not sufficient to simply say at least mid-range - - -
KIEFEL J: Everyone has to have a starting point, and I think as Justice Bell suggested, the usual approach would probably be to think of the most serious, or if something appears initially minor you might think right at the end of the scale to guide you.
MR THANGARAJ: I think, with respect to Justice Bell’s questions, it is much easier to say is this is a worst case, because the law is clear that worst case does not mean you cannot think of a worse case. It is in that band, and so to determine on the facts that it is in the worst case, I do not think would be that difficult. Reasonable minds might differ, but to come to that conclusion as a sentencing judge I think would be – and also I think it would be easy to say, “Look, this is really at the bottom of the range” or “It is relatively serious”, et cetera, but what has been required is the Court of Criminal Appeal has expected the District Court to say, “This is well above the mid-range” or to describe to some extent the degree by which it moves away from the mid-range.
BELL J: Has it approached it in that way because you have to do something with the scheme of Division 1A of Part 4. The court is required, when sentencing for a table offence to set the standard non-parole period unless there are reasons for not doing so. You have in 54A(2) a definition, difficult as it may be, of what the standard non-parole period represents.
MR THANGARAJ: What we say the legislation is there to do is to say that there many offences that fall within the mid-range, but because there is a discretion to move away, then the only mandatory requirement is for a judge to give reasons as to why, for a mid-range offence, the standard non-parole period has not been imposed. So that gives the entire division work to do and there is the backup of 54C.
BELL J: It still requires the judge to come to a view about whether or not the offence falls within something described as the mid-range of objective seriousness.
MR THANGARAJ: Yes. I think that is one way. Another way could be a judge approaches this on the basis of general sentencing principles, looks at it as a matter of instinctive synthesis, comes to a provisional result and then looks at the standard non-parole period and then wonders if it is appropriate and I will take your Honours to - - -
BELL J: But how has the judge then implemented the command of 54B(2)?
MR THANGARAJ: Because then if the provisional sentence is not the standard non-parole period, the judge then checks to see is it warranted, and one of the reasons it may be warranted is, this is a low-range offence, it is not a mid-range offence.
BELL J: But the judge is required to set the standard non-parole period for an offence to which the table applies. The judge has a discretion not to do so and to adjust upwards or downwards, and one has a definition that directs attention in terms of what the standard non-parole period represents to the mid-range of objective seriousness. I have difficulty seeing how a judge complying with the mandate of subsection (2) does not at some point have to consider whether this offence falls within that descriptor.
MR THANGARAJ: Yes, I think in looking at all of the matters and coming to that decision as to the provision or result, the judge would necessarily have to determine the level of seriousness and that is something that would always be done under general sentencing principles. So the judge - - -
GUMMOW J: Seriousness against what benchmark?
MR THANGARAJ: That is exactly right, your Honour, and that is the problem. It is not - - -
GUMMOW J: I think Chief Justice Gleeson observed that with offences against the person the only limitation in seriousness is physical impossibility.
MR THANGARAJ: I will come to that tomorrow about the benchmark argument in that regard. But as part of the determination of the sentencing it is very easy for a judge to say this particular level of seriousness - is it really serious, is it low range? The difficulty is to compare it.
HAYNE J: All of those are statements of conclusion that are masking some process of assessment or reasoning. Can I just go back to this notion of what is objective seriousness and do it by reference to one of the offences in the table. Take, for example, the one at the bottom of the page, 61M(1), aggravated indecent assault. That is an offence that can be committed where there are circumstances of aggravation, of which there are five distinct forms – in company, victim under age, victim under authority, victim physically or intellectually disabled. Now, how is a sentencing judge to determine what is the objective seriousness of an offence under 61M?
MR THANGARAJ: I think what the judge would have to do then, your Honour, is to work out which factors apply to that particular offender because not all of them will.
HAYNE J: So you segment the offence into the various ways in which it can be committed. That, I can understand, is a first step. Second step - seriousness. I can understand creating notionally a range of seriousness, more or less, but objective seriousness - what is the word doing?
MR THANGARAJ: You only look at the conduct of the offence. You may not look at the youth of the person. You may not look at - - -
HAYNE J: So the acts constituting the commission of the offence?
MR THANGARAJ: Yes, but they will include, in some cases such as this one, some subjective factors.
FRENCH CJ: How does this fit with 21A(1):
In determining the appropriate sentence for an offence, the court is to take into account the following matters –
aggravating, mitigating –
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
That tells us something about the concept of seriousness, does it not?
MR THANGARAJ: Yes, it does, and that is what the court said in Way. That allows for the inclusion of, if I could, subjective objectives, so intellectual disability may come in under 21A(1)(c) or you could use 21A(1)(c) to say the fact that it is a low range offence is a reason to depart because there is nothing here that mandates a sentence lower than the standard non-parole period for a low range offence, and that is part of the problem. I will come to that tomorrow.
GUMMOW J: Though it does seem as if 54A(2) is drafted against a background of a legislative distinction between objective and subjective factors, does it not, by reason of what the Chief Justice pointed to you.
MR THANGARAJ: Yes. As long as we understand that objectives include those narrow subjectives. If I could go back to - - -
GUMMOW J: What part did mitigating and aggravating factors play in this theorem?
MR THANGARAJ: They fall within the reasons for departure from the standard non-parole period. So when a judge imposes a sentence, forms a provisional view as to a sentence or a final view and the sentence – well, let us say this case. Let us say his Honour Judge Black imposed his sentence. What his Honour ought to have done is to say, “The standard non-parole period is 15 years. These are the reasons I am departing from that”, and then listed what they were with some explanation. That would have been a preferable way, with respect, to have carried that out. Is that a convenient time, your Honours?
FRENCH CJ: Yes. I think you have got another 10 minutes.
MR THANGARAJ: I am happy to go, your Honour. There is nothing in Division 1A that mandates a reduction of the non-parole period by mere fact of the offence being within the low range.
BELL J: Except one would think that an analysis that saw the definition in subparagraph (2) of 54A and then the discretion conferred to depart in subparagraph (2) of 54B would lead to that result. It would seem perverse not to, would it not?
MR THANGARAJ: No, and, your Honour, with respect, that is exactly what I submit, but it requires the discretion to be exercised before we move away from the standard non-parole period offence. This is part of the argument as to why it does not apply to low range offences. Let us say it applies to all offences. It is mandatory to impose a standard non-parole period for a low range offence until the discretion is exercised not to do that. One would hope that in all cases the discretion would be exercised for at least that reason and perhaps other reasons, but if low range offences fall within Division 1A, then an appropriate sentence requires the exercise of a particular discretion.
BELL J: It might be legal error not to.
MR THANGARAJ: Would hope that it would be legal error not to.
FRENCH CJ: One has the feeling that the term “range of seriousness” that is being picked up out of case law about sentencing is a kind of term of art.
MR THANGARAJ: Yes, but this is the first time, I think, that it has been suggested that there is a middle of the range for objective seriousness and that plays some role in sentencing.
FRENCH CJ: It would all be very intelligible if there was a range with a zero and a max.
MR THANGARAJ: We do not want grid sentencing and that is a part of it.
BELL J: I think the Chief Justice is taking up the circumstance that, putting to one side this statute, the notion of objective and subjective factors bearing on an assessment of culpability for the purpose of sentence is one with which people are well familiar.
MR THANGARAJ: Of course.
BELL J: But there is a difficulty, whilst some subjective features tend never to inform the notion of the objective seriousness, other matters often are viewed as relevant and those are the matters bearing on the mens rea of the offence. So in that sense they are directly related to the circumstances of the offence in a way that a factor such as you may not be, but then you face the point that Justice McHugh made in Markarian [2005] HCA 25; (2005) 228 CLR 357 at 379 in paragraph 53 where his Honour – this was not in the context of a table offence, but it just pointed out that the idea that one could look at the objective circumstances alone in, for example, a case of manslaughter by a woman of her newborn baby without having regard to the circumstances of the mother would be an entirely meaningless exercise. That is the difficulty that we are grappling with here in terms of objective seriousness.
MR THANGARAJ: Paragraph 54, your Honour is also important because, as his Honour, with respect, quite rightly said, if there is a focus on the objectives, we are focusing on – what his Honour says, retribution and deterrence, and we are leaving behind important aspects of mitigation. I will come to that in relation to something a bit later.
KIEFEL J: Yes, in that regard I see what you mean. If one considers it a seriousness objectively ascertained, you would be looking in a normal survey process to comparators of the offence itself. They would be the objective features, and that would be factors relating to the offence rather than the person. So that is what you are trying to say, this leaves a whole area relating to the person which might be left out of the crucial sentencing part.
MR THANGARAJ: Yes, and that is what happened, with respect, in this case, because once his Honour started looking at cases like Eedens and the other cases referred to in the judgment as being informative of what sentence should be imposed on this appellant, there is a focus on objectives, even though the objectives were far worse in that case, but that was the idea underlying that comparison looking at objectives, but none of those offenders had the subjectives that pertained to this appellant. So it is a very difficult exercise and that is another reason why, in my submission, it is difficult to use it as a benchmark when we are only using it as a benchmark when we are only comparing objective factors, because the benchmark is said to be the mid-range of objective seriousness. How can that be a benchmark when you have - - -
KIEFEL J: Well, perhaps it only works if the objective seriousness can only operate as one factor amongst all the other factors appropriate to sentencing. If it is possible in the statutory scheme to limit its operation to
only one factor and not the most important factor, perhaps that is how it can work.
MR THANGARAJ: Well, that would make the idea of it being a benchmark very difficult because once you exclude, which this necessarily does, the subject factors, then there is nothing in Division 1A that talks about it being used as a benchmark. There is a risk that a sentencing judge is being asked to focus too heavily on objective factors.
GUMMOW J: Are any of the offences listed in table 1 offences of strict liability?
MR THANGARAJ: I will have to look that up, your Honour. I will have to tell your Honour that tomorrow. The unusual aspect of the table is that there are some offences that are at 80 per cent of the maximum penalty, so that may be problematic in itself.
BELL J: There is a big range in the table.
MR THANGARAJ: Yes there is.
BELL J: One does not see any particular ratio.
MR THANGARAJ: No, there is no ratio.
FRENCH CJ: How does it work if you are dealing with an offence which is not covered in the table?
MR THANGARAJ: It does not apply. The Division 1A? It does not apply.
FRENCH CJ: It does not apply, so in other words you just fix a non-parole period.
MR THANGARAJ: Yes, the usual way. In our submission, the sentencing process for non-table offences is what ought to be the sentencing process for table offences. I will come to that tomorrow.
FRENCH CJ: That might be a convenient time.
MR THANGARAJ: Thank you, your Honour.
FRENCH CJ: Court will adjourn to 9.45 am tomorrow for pronouncement of orders and 10.00 am for the resumption of this matter.
AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 9 JUNE
2011
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