Lim v State of Western Australia [2011] HCATrans 167 (10 June 2011)

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Lim v State of Western Australia [2011] HCATrans 167 (10 June 2011)

Last Updated: 16 June 2011

[2011] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P41 of 2010

B e t w e e n -

KOK FOO LIM

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 10 JUNE 2011, AT 2.19 PM

Copyright in the High Court of Australia

MR D.W.A. MACLEAN: May it please the Court, I appear on behalf of the applicant with my learned friend, MR A.J. ROBSON. (instructed by Legal Aid WA)

MR B. FIANNACA, SC: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (WA))

FRENCH CJ: Thank you, Mr MacLean.

MR MACLEAN: Your Honours, consistency in the identification and application of sentencing principles is part of the general system of law. Uniformity of sentencing is a matter of importance. In this case, your Honour, the complaint in the Court of Appeal concerned the application of the totality principle. The majority, the applicant says, erred in the manner in that it had regard to Balassis in seeking to apply the totality principle. The complaint is not that the totality principle was wrongly identified, but that it was wrongly applied by the majority in this case. The applicant points to the decision of President McLure as set out in application book 343 to 344 as being demonstrative of the proper identification of the principle and the proper application.

The error alleged in the Court of Appeal was that the original sentence breached both limbs of the principle and that the error was an implied one. The applicant says that when this matter came on for consideration in the Full Court the court erred by linking the outcome in Balassis to the consideration of the principles of totality and determining that the original sentence did not, in fact, breach either limb.

The principles that arise - the factual basis that attracts the principles which the applicant says militate in favour of the grant of special leave are these. In Western Australia the statutory formula operates to provide a minimum custodial term once the head sentence is fixed. The position in Victoria is quite different and the non-parole period is the period which is ordered by the judge in the exercise of his or her discretion as being a period which justice requires that a prisoner must serve having regard to the circumstances of the offence before there can be mitigation of the punishment in favour of his rehabilitation through conditional freedom. That point is not controversial and has been stated often in these courts, most significantly in Power, Deakin and Bugmy.

Common to all sentences, and this applies to sentences in Western Australia and in Victoria, is that a sentence of imprisonment should never exceed what represents an appropriate or proportionate punishment for the objective offence. Of course, that is a principle that has been stated in Hoare and applies in all sentences.

FRENCH CJ: So far as your attack on the primary judge’s sentence is concerned, that ultimately reduced to a proposition that was manifestly excessive having regard to the totality principle, was it not?

MR MACLEAN: Yes, your Honour. The complaint is that the learned sentencing judge did not properly apply the totality principle and then when it came on for consideration in the Court of Appeal, the court identified the principle but referred to a number, that number being the number in Balassis rather than - - -

FRENCH CJ: Yes, I appreciate there was an error on the part of the majority in relation to the sentence that had actually been imposed in Balassis. Accepting that and accepting the other matters to which you have drawn attention in relation to the non-comparability, if you like, of Victorian sentencing legislation, you still have to get to the point, do you not, that you would have reasonable prospects of success on manifest excess as against the primary judge’s decision?

MR MACLEAN: Yes, that is indeed correct, your Honour. The basis for the submission that the primary judge’s sentence revealed a manifest excess is that it is common ground that the range of offences disclosed by the conduct was not of a most extreme kind and there are often times far more serious examples of those and in relation to each of the individual sentences there is no complaint made about those. It is just the accumulation of them in the manner that the sentencing judge structured them that reveals, on the applicant’s case, an error in the way that totality was applied or, rather, not applied in this case.

FRENCH CJ: The qualitative judgment made by President McLure in dissent was that the total criminality was high and required that the appellant serve a very lengthy term of imprisonment and then her Honour went on to refer to the relative seriousness of the offences committed by the applicant in the possible scale of seriousness, I suppose, of such offences. But that qualitative judgment having been made, it is difficult to get a handle on a basis for asserting manifest excess that can make the difference between 20 and 16 years. That is what I am really thinking about. I mean, ultimately, putting to one side the errors made in the majority judgment, what is the basis upon which one says 20 years is too much, 16 years is all right?

MR MACLEAN: Well, as your Honour correctly identifies and what makes applications for special leave against sentence particularly difficult is that this Court will not, quite properly, interfere in qualitative assessments of that kind. But the error by the majority in the Court of Appeal, with respect, is not limited simply to misidentifying the sentence which was imposed in Balassis but, rather, extends to the majority’s not having regard to the difference in the parole regimes between the two States.

FRENCH CJ: I acknowledged that earlier, but your criticism is in relation to their treatment of the Victorian legislation?

MR MACLEAN: There are essentially three bases for the criticism: one, just the general not properly applying the totality principle; secondly, and more substantively, not identifying the difference in the parole legislation between Victoria and Western Australia and using Balassis as a guideline and the way in which it was used in the case, in my respectful submission, demonstrates – and again this is in the context of an implied error – that it was more than just a guideline because the sentence in Balassis was linked inextricably with the outcome of Lim’s appeal.

Now, if it were going to be used in that fashion, the majority in the Court of Appeal ought to have had regard to the minimum custodial position which was ordered in Balassis and the difference in the way that the court in Victoria structures the minimum custodial position as opposed to the way it is done in Western Australia, because, of course, in Victoria the minimum custodial position is applied after the exercise of a judicial discretion as opposed to a mathematical formula as it is in Western Australia.

The reference to BLM is not because it stands as an authority for the proposition which I make, namely, that the court should have had regard to the minimum custodial sentence, but really because that case provides an outline as to how courts, when discharging the function that they must, namely, to strive towards consistency and the identification and application of sentencing principles look to what the minimum custodial sentence was because BLM is, of course, concerned with intrastate sentencing under the difference regimes, but it provides, in my submission, a guideline as to how to achieve that fundamental requirement in all sentences, namely, consistency in the way that the principles are applied. That is the reason for the citation of BLM in support of the application.

I make the further point, your Honour, that in the course of the majority decision in Lim, their Honours were, of course, cognisant of the difference between the legislative scheme for parole, and I am referring now to application book 354 and his Honour Justice Buss said that:

A head sentence and a total effective sentence must be determined without taking into account the legislative scheme for parole.

Of course, by and large, that is entirely correct, but the cases cited in support of that proposition, in my respectful submission, do not, in fact, stand as an authority for that point. The case of Hoare stands as an authority for the principle that a sentence of imprisonment should never exceed what represents appropriate or proportionate punishment for the objective offence. Of course, the factual situation in Hoare was related to the issue of whether or not it was appropriate for sentencing courts to extend the length of time that an offender would serve having regard to a remission system.

So, in my submission, those cases of Hoare and Kirby and Jarvis do not support the proposition that they are cited for and are in conflict with what really is in issue, and that is the appropriate identification of principles and the proper exercise of that, in my submission, would have been for the court to look at what was the minimum custodial term to be imposed in Balassis if it were to be used, as, in my respectful submission, I think it plainly was, as a guideline to link the outcome of Lim’s application in the Court of Appeal.

So the complaint is, in my respectful submission, more substantial than simply pointing to the Court of Appeal and saying, well, the court misidentified the actual sentence that was imposed in the case of Balassis and is more fundamental than that, but the fact that their Honours did misidentify that, in my respectful submission, compounds the error and demonstrates that while the totality principle was identified - - -

KIEFEL J: But what could the error have led to in the first place? It is pointed out against you that it could not have informed the court of the range of sentencing, it being only one case. Moreover, this case is, on one view, more serious having regard to the number of offences committed and the fact that the applicant pleaded not guilty to 27 counts and resulting in a trial lasting five weeks. So how do you say the mistake in the term in Balassis is productive of any problem here?

MR MACLEAN: I hear what your Honour is saying in terms of on one view the facts of Lim are arguably more serious than they were in Balassis. In my respectful submission, it may well be appropriate to find opposite to that when regard is had to the potential maximum sentences which could have been imposed in Balassis - that included a number of counts of rape. The maximum sentence for that is 25 years. A sentencing judge in Victoria, just as in Western Australia, must have regard to the maximum sentence when imposing a sentence.

So the sentencing judge in Balassis had at her disposal a greater range of sentencing given that there were at least two counts that attracted that maximum potential penalty of 25 years as opposed to Mr Lim who had a number of accounts which exposed him at worst to a sentence of 15 years, although I think, with respect, the President properly identified that

whatever view one took of the facts of this case, the offences were very serious and did call for a lengthy term of imprisonment.

It is probably not helpful to enter into a bidding war as opposed to Lim and Balassis as to who offended more seriously or egregiously, but I do make that point that the maximum range of penalties to which Mr Balassis was exposed fairly substantially exceeded those which Mr Lim was exposed to. Insofar as the factual ingredients that constituted the offending in Lim’s Case is - whilst not ignoring the blindingly obvious, they were very serious offences. Insofar as criminality and culpability is concerned, they did not approach the seriousness demonstrated by Mr Balassis. In that regard I refer particularly to the lengthy offending that took place against the 14-year-old child in a number of serious sexual offences committed upon her together with the application of drugs to enable those offences to take place.

Insofar as your Honour’s question about the sentencing range, I agree, with respect, that Balassis could not afford a sentencing range, but the way in which the majority dealt with Balassis, in my respectful submission, demonstrates that it is expressly used as a guide, but when one has regard to the link between Balassis and the outcome in Lim, it was an example perhaps of the application of a formulaic approach by reason of an express reference to the terms of imprisonment imposed in Balassis and the dismissal of Lim’s appeal as opposed to the proper identification and application of the principles that the court were obliged to consider in this case. May it please your Honours, that is all I can usefully say at this moment.

FRENCH CJ: Thank you, Mr MacLean. We will not need to trouble you, Mr Fiannaca.

The sentence imposed in this case by the primary judge was severe, but not on the face of it manifestly excessive. Despite the erroneous reference in the Court of Appeal to the sentence imposed in the matter of Balassis, and other criticisms of the reasoning of the Court of Appeal, the prospects of success of this appeal do not warrant the grant of special leave. Special leave will be refused.

The Court will now adjourn briefly to reconstitute.

AT 2.38 PM THE MATTER WAS CONCLUDED