R v JPR [2012] HCATrans 349 (14 December 2012)

Last Updated: 18 December 2012

[2012] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M40 of 2012

B e t w e e n -

THE QUEEN

Applicant

and

JPR

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 11.27 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the applicant in this matter. (instructed by Director of Public Prosecutions (Vic))

MR D.W. GIBSON: If it please the Court, I appear for the respondent. (instructed by Victoria Legal Aid – Youth Legal Service)

HAYNE J: Yes, Mr Silbert.

MR SILBERT: If your Honours please. Continuing the theme of gambling, we have considerable weight in our saddlebags. One, we are the Crown; two, we are here on a sentence matter. Having said that, your Honours, it is an important point of principle raised by the judgment of the Court of Appeal here which effectively limits the maximum sentence that can ever be imposed on a child offender in Victoria for a serious indictable offence, effectively, the three years imprisonment, that is to say what is being contended is that the orders of the Court of Appeal are wrong and that by replacing the head sentence of six years with a non-parole period of four, with three years in youth justice, and decreeing that general deterrence and denunciation can form no part in the sentencing of a child offender, the Court of Appeal has effectively misconstrued the construction of the statute and read in limitations as far as the sentencing of child offenders in Victoria are concerned.

HAYNE J: But there are two distinct steps in that. First, as I understood it, you were saying that this establishes a principle of perfectly general application and the second step is it is founded on a misconstruction of the statute.

MR SILBERT: Precisely so.

HAYNE J: Why is it of general application?

MR SILBERT: Your Honour, because by insisting that - there are two concurrent operations of sentencing law in Victoria for offences such as this. We have the Sentencing Act and we have the Children, Youth and Families Act that I will just refer to as the Children’s Act. Now, they have concurrent operation for the sentencing of a child offender for indictable offences and an order for detention must be made under the Sentencing Act. Now, that comes about by virtue of section 586 of the – I will just refer to it as the Children’s Act. Given that the sentencing judge had rejected all other sentencing options other than detention then only the Sentencing Act could apply by virtue of section 586 of the Children’s Act and it follows that once the Sentencing Act applies, general deterrence and denunciation are applicable by virtue of section 5 of that Act.

Now, it is submitted that it makes no sense once the Sentencing Act is engaged to decide that general deterrence and denunciation have no application and that there would need to be clear statutory direction if that was to be the general principle. Your Honours, the source of the difficulty is a case of CNK which your Honours will see - a decision of the Court of Appeal. It rests, it is submitted, on a misreading of sections 360, 361 and 362 of the Children’s Act. Effectively that case treats the Children’s Act as a codification of sentencing principles for the sentencing of children.

The submission in relation to that is that it shows an error in statutory interpretation. The text of the statute does not involve a codification of the law and it evinces no intention to oust common law principles. It is submitted that the root cause of this problem lies in CNK based on the misreading of the Children’s Act.

In relation to that and it is set out in our submissions, it conflicts with interstate authority on comparable legislation and, indeed, it seems as a result of the interstate authority set out in our summary of argument that both criteria of section 35(a)(ii) of the Judiciary Act for a grant of special leave are met, namely, that it is a matter of public importance because of its general application and also, there are significant differences of opinion between different courts in different States.

HAYNE J: On different legislation.

MR SILBERT: Yes, your Honour, on different legislation. Indeed, the Court of Appeal in CNK traverses the different legislation, the different decisions and even on the different legislation there is sufficient in common for it to raise a problem in relation to conflicting decisions. The submission I make is not to say that general denunciation or denunciation and general deterrence have the same effect in the sentencing of children as they do in the sentencing of adults. Clearly, they do not. Youth always calls for moderation in the application of the effect of general deterrence and in the effect of denunciation in accordance with the age of the child and in accordance with the gravity of the crime.

Indeed, the position is accurately summarised by Justice Bell, as she then was, in R v NMTP which is cited at 3.39 of the summary of argument. There is no issue taken in relation to the way traditionally sentencing of children has to have taken place but the complete bar on the application of denunciation and general deterrence in giving effect to sentencing principles, it is submitted, shows error on the part of the Court of Appeal and that error originating in CNK has infected the decision and the orders made in this particular case.

HAYNE J: Where do I find most conveniently the exemplification of the error that you say is entrenched by the Court of Appeal’s decision in this matter?

MR SILBERT: Does your Honour have CNK v The Queen?

HAYNE J: I understand CNK, I want to come to that presently, but in this decision, where do I find most conveniently the key misstep, as you would have it?

MR SILBERT: Your Honour, the key misstep most conveniently comes from application book 109, paragraph 49 of the judgment of Justice Hollingworth:

As the applicant fell to be sentenced for manslaughter under the Sentencing Act general deterrence and denunciation were available to the court as sentencing purposes. However, the applicant’s conduct embodied the features of youthful impulsivity and lack of foresight that underlie the logic of not using children as vehicles of denunciation and general deterrence.

Now, that, it is submitted, encapsulates the error that your Honour - - -

HAYNE J: But is that not specific to this applicant? The point I want to raise with you, Mr Silbert, is I know your fear is that this is establishing some general, all-embracing proposition. I should say to you on reading that that was not instantly apparent to me. It seemed to me to be something that depended on – particularly the sentence you have drawn attention to, the notion of youthful impulsivity, despite what had occurred in the week previous, but we are not here to correct that kind of difficulty. Why is this a general principle?

MR SILBERT: It is a general principle because the effect of the judgment is that where you have children involved, whether they are being sentenced under the Children’s Act or being sentenced under the Sentencing Act - sentencing under the Sentencing Act imports the sentencing provisions of the Children’s Act which gets rid of, effectively eliminates general deterrence and denunciation as considerations to be taken into account. Now, the Court of Appeal has said that clearly and they have - - -

HEYDON J: But, Mr Silbert, paragraph 49, the two sentences appear to contradict each other. In paragraph 50, it says:

I am persuaded that the learned sentencing judge placed too much weight on the factors of general deterrence and denunciation –

That implies that it was satisfactory to place some weight on them. That, in turn, implies that these passages are not setting down a general rule of exclusion of the type you are trying to attack.

MR SILBERT: Well, your Honour, if they mean what they say I would agree with your Honour but the effect of proceeding - - -

HAYNE J: It is hard enough being a judge, Mr Silbert, without not being taken at face value.

MR SILBERT: Yes, accepting what your Honour Justice Heydon says, it is effectively a non sequitur, it is submitted. Taking the judgment at face value the sentencing judge, giving some consideration, a sentence of six years with a minimum of four would not have been the applicable sentence for an adult offender. It was a sentence for a person who committed this offence at the age of 17 years and 6 months. Now, it is submitted that it is impossible to attribute too much weight, that is to say moderation is clearly evident in the way the sentencing judge, the judge at first instance, sentenced in this matter and that the statement that the Court of Appeal “placed too much weight” really effectively nullifies the question those two sentencing principles in the sentencing discretion and reduces them to zero.

That can be demonstrated, it is submitted, by the fact that a term of imprisonment with a head sentence of six years goes down to youth justice centre with a term of three years which is the maximum applicable under the legislation. I suppose it is impressionistic to some extent, but it is submitted that if this does effectively eliminate general deterrence and general denunciation from the sentencing considerations then it does, in fact, lead to a general principle which, it is submitted, is derived from CNK.

It is submitted that the orders themselves demonstrate the fallacy because the ultimate orders imposed are so outside the bounds of a reasonable sentencing discretion as to indicate error. The error, it is submitted, must have its origins in the application of CNK and a general proposition as far as the sentencing of children is concerned.

There is mentioned in the Court of Appeal - they talk about a failure to mention a single punch on the part of the sentencing judge. It is submitted that there is a mischaracterisation by the Court of Appeal of the way the sentencing judge treated the matter and examination of his Honour’s remarks at application book 55 and 56 disclose that he correctly described the nature of the assault and that the Court of Appeal mischaracterised the way he did so in leading to the conclusion that they came to.

It is submitted that the order of the sentencing judge, as I have said, was a proper order that is culpably wrong given the way the offences were committed - the offence committed eight days before, the knowledge of the consequences and that logically, as I say, it is submitted that there is a general proposition that is said to emanate or seems to emanate from CNK which infects the way that the Court of Appeal has treated this.

Now, the Court of Appeal was clearly bound by CNK, so if CNK does lay down a general proposition, the Court of Appeal was bound to follow it. It is submitted that there is a general proposition in CNK and that the Court of Appeal properly followed it and the corollary of that is that CNK is simply wrong.

The other – looking to ground 4 where it takes me to the youthful impulsivity and lack of foresight, that characterisation it is submitted is contrary to the admitted facts found by the sentencing judge. He found that the conduct was deliberate and that moral culpability was high and he sentenced in accordance with a long line of authority in Victoria, which is fairly consistent with a long line of authority around Australia. So, his sentence, it is submitted, was perfect and was unimpeachable. Your Honours will see that CNK supervened after the imposition of that sentence and overtook his sentencing method and necessitated a resentencing in accordance with CNK.

Now, I suppose the final submission that goes to ground 5 is that nowhere else around the country would a head sentence in the circumstances of this case be considered manifestly excessive in relation to the conduct for which the sentence was imposed. So, the conclusion that I opened with, looking at section 362 of the Children’s Act, absent the need for protection of the community which is specified as a sentencing matter under the Children’s Act under section 362(1)(g) there is no reasonable – conceivable reason for ever incarcerating a child who has committed an offence applying a principle of logic that emanates from CNK.

It is simply submitted that the general common law principles of sentencing have not been excluded by the Children’s Act, that they apply once the Sentencing Act is activated and that the Court of Appeal was wrong in excluding them. It is submitted it did exclude them in relation to the orders it imposed in this case. If the Court pleases, those are the submissions in this matter.

HAYNE J: Thank you, Mr Silbert. We will not trouble you, Mr Gibson.

We are not persuaded that the decision of the Court of Appeal established or applied a general rule governing the sentencing of young offenders under applicable Victorian statutes to the effect that general deterrence and denunciation are considerations irrelevant to the fixing of an appropriate sentence. The application otherwise tenders no issue suitable to the grant of special leave to appeal. Special leave is refused.

AT 11.44 AM THE MATTER WAS CONCLUDED