Pool v The State of Western Australia [2014] HCATrans 133 (20 June 2014)

Last Updated: 23 June 2014

[2014] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P2 of 2014

B e t w e e n -

JASON BRADLEY POOL

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 20 JUNE 2014, AT 12.16 PM

Copyright in the High Court of Australia

MR P.J. VINCENT: May it please the Court, my name is Vincent, I appear for the applicant. (instructed by Lumlan and Associates)

MR J. McGRATH, SC: I appear for the respondent with MS A.C. LONGDEN. (instructed by Director of Public Prosecutions (WA))

MR VINCENT: Your Honours, this is an application for leave to appeal the sentence, 11 years, 9 months, which was upheld by the Western Australian Supreme Court, President McLure dissenting. There are 13 counts of sexual offences, two burglaries related to some of those, and one depravation of liberty, which was related. They were over a period of time, 2005 to 2001. The applicant at the time of the offences was between the ages of 34 and 41 years. The profile of the offending is conveniently set out at application book 53 - - -

GAGELER J: Mr Vincent, you need to convince us that it is appropriate for the High Court to reassess the assessment that has already been made by the Western Australian Court of Appeal.

MR VINCENT: Your Honour, these are the points that I would point to in that regard. The appeal court and, indeed, the lower sentencing court, they really only paid lip service to the totality principle, so the question is, in general terms, how does the Court give substance to that? With respect, President McLure, in her dissenting judgment, sought to give substance to that at appeal book page 39, paragraph 5, and in that regard she looked to giving a sentence that:

is fairly necessary to achieve all of the recognised sentencing objectives including punishment, retribution and deterrence.

GAGELER J: Are you saying the majority did not adopt the same principle?

MR VINCENT: I am saying that, your Honour, and if you look at Justice of Appeal Buss’ reflection on the totality principle it really, with respect, does not address it at all. He, at application book page 47, comes closest to the principles - - -

KEANE J: He seems to address in paragraph 57 the totality principle by reference to the issues that arise in the case. Do you point to some error in his discussion there?

MR VINCENT: The error – it is a mantra, with respect, and it has been repeated in various cases, but there is no substance to it in the judgment. He mentions that, and then the only other mention of it which I could find in those terms was on page 51 of the application book at paragraph 80, and he says there – he concedes the:

imprisonment was high. If I had been sentencing the appellant at first instance I would probably have imposed a lower total effective sentence.

He says he takes into account personal circumstances and including the pleas of guilty, but there is no real explication of that, and then he goes into, on the next page, he says:

I am not persuaded that the total effective sentence was beyond the range open on a proper exercise of the sentencing discretion.

So – and I am aware - - -

KEANE J: You are inviting us to redo that exercise?

MR VINCENT: Well, I am inviting this Court - - -

KEANE J: To reach a different view?

MR VINCENT: I am inviting this Court to say that in general terms the totality principle is an important principle – and we are talking about the first limb, of course, here – and it is one that needs to be given substance in a real way, not just in a repetitive way. And in that regard, your Honour, there was material that could have been before the court – that was before the court – where the court could have reflected on what was fairly necessary to achieve the sentencing objectives. Here, for example, you have a profile of a psychosocial aspect, and I have referred to that aspect in my supplementary summary of argument which I forwarded to the Court and I do seek leave to have that filed eventually - - -

KEANE J: We have read it.

MR VINCENT: Thank you, your Honour. Justice of Appeal Buss simply did not refer to the fact that this applicant had what was described as a significant mental illness. So they are immediately, on the authority of the Western Australian case Krijestorac, one has to say, well, the aspects of personal and general deterrence become less relevant and we need to look at what is, to effectively sentence this person given that reduction, an appropriate tariff. That was simply not done by the appeal court majority, and it certainly was not done by the lower court, and if one examines the transcript of the lower court in addressing the sentencing there was, in fact, an error of fact, in my submission, that the court - - -

KEANE J: Was this error of fact the subject of complaint to the Court of Criminal Appeal?

MR VINCENT: I was not there, but it does come within the ambit of assessing the totality principle.

KEANE J: No, if there was an error then, presumably, someone complained about it. If it was not complained about before the Court of Appeal then why are you addressing us about it here for the first time?

MR VINCENT: I am addressing it in terms of the factor which the court could have taken into account, and should have taken into account, in its consideration of the appeal. In fact, Justice - - -

GAGELER J: But it is no part of your proposed appeal to this Court to raise a question of fact. At least, I do not see that in your draft notice of appeal.

MR VINCENT: That is entirely correct, your Honour. Justice Buss referred to and quoted the psychiatrist and pointed out – well, where the psychiatrist referred to the mental condition and addictive problems of the applicant but there is simply no addressing of that aspect in the Court of Appeal’s decision and that would seem to be a gross omission in considering the totality principle.

KEANE J: If it were addressed, would it not call for consideration as to whether considerations of protection of the sorts of people that your client has assaulted might be stronger by reason of his condition?

MR VINCENT: President McLure in her short judgment made the point on page 39 of the book at paragraph 3 of her judgment:

there is no suggestion that those problems are unlikely to be responsive to remedial treatment and programmes.

KEANE J: Why would one proceed on the footing that one can be sanguine that he will be responsive?

MR VINCENT: In the end, your Honour, one imagines one has to have confidence in the system that is in place, in the prison system, to address these issues. There are programs, as I understand it, to address them and they were certainly in the mind of the learned President of the Court of Appeal. There are post-release initiatives, compulsory reporting regimes that are now in all the States, certainly in this State and, I believe, in others. The protection of the public is one that is certainly an aspect but if it can be addressed within the prison regime with a moderate and appropriately calculated sentence one would not require anything further just on the basis of an unfounded perhaps fear.

KEANE J: Not an unfounded fear. Your client’s history shows an ascending level of criminality that suggests that his offending was becoming worse. It is not to be unduly harsh to suspect that – or to proceed on the footing that he has a serious, very serious problem.

MR VINCENT: He has a serious problem and one would imagine that that is the problem that would be addressed within the prison regime.

KEANE J: Then the question is not, well, we can proceed on the assumption that it will be fixed. The question is, is there a basis for thinking that it will be fixed.

MR VINCENT: My respectful submission in that regard is this, that there is a knowledge on the part of the court in Western Australia, as reflected in the President’s remarks, that there are programs that can address these issues, and the liberty of an offender must not be extended beyond the reasonable requirements of that and also other sentencing principles such as showing the public that that person is being properly dealt with.

Being properly dealt with in these circumstances, in my submission, does not require the sentence that was accorded and that was certainly the view of the learned President. If one examines the table on page 53 of the application books, your Honour, it can, with respect, be a useful exercise to put the offending in some degree of perspective.

There are basically six blocks of offences. So the first block is where it has got count 2. That is block 1. That was back in 2005 – indecently dealing with a child under the age of 13 and that was fondling, as I understand it, the breasts and vagina, outside clothing. The second block is count 5 and that was an attempt to indecently record. That was going outside a house and trying to record somebody through a shower window and again a child. The third block - - -

GAGELER J: To what end are you taking us through this detail?

MR VINCENT: Well, there are some - - -

GAGELER J: What is the end point of the submission?

MR VINCENT: This detail addresses one of the remarks by the Court of Appeal at page 49, at paragraph 69 at the bottom there, where the court says that there was offending “over a period of about seven years”. Well, that in its strict sense is true, but one needs to look at what type of offending - was it continually offending over seven years or were they – with numerous offences, or were they, if you like, blocks of offences which occurred at specific times. My submission is that that perception may have been misleading.

GAGELER J: Well, Justice Buss goes on in paragraph 69 to give other particulars. Are you saying those particulars are in some sense wrong or incomplete?

MR VINCENT: Well, particular (b) I would submit is inaccurate:

his offending involved numerous acts of sexual violation against five victims.

There were not numerous acts. I suppose “numerous” is how long is a piece of string, but when you are looking at six blocks of offending and, in fact, there were really - apart from the recording, there were two indecent dealings that one can see initially and then another incident of indecent dealing.

For example, counts 6 through to 10 are all on the one day, as I understand it, and then counts 11 to 13 are all on the one day. Count 14 is a recording and then counts 15 to 19 – and, obviously, that is a serious matter – that was one incident, if you like, of entering a home through an unlocked back door and then assaulting the woman there and sexually penetrating her digitally and with her vibrator. So given the blocks - - -

KEANE J: Do you accept that this shows that he is getting worse and seriously worse, that his offending is getting worse?

MR VINCENT: Well, it does. I accept that. It shows that he needs treatment. My submission is that that has been recognised by the dissenting President, and then one says, well, what is a reasonable tariff for this. My submission is a reasonable tariff is not 11 years, simply on those facts and those blocks of offences and, secondly, the court failed to take into account, in any meaningful way, the totality principle to address it, to explain how it was to be applied, other than saying – and his Honour – I said, well, it is outside the range of sentences. We now know, your Honour – and this was before, as I understand it, your decision in Barbaro and Zirilli where, I understand, it was said that that type of comment can be rather misleading.

There were other aspects of the matter which are of importance, general importance, for this Court and for the public, your Honour. That is, for example, what on earth happened to the aspect of the plea of guilty? There was no explanation as to what, if any, discount was being given in the lower court. His Honour said that there should be a discount and it should

be to the maximum, but there is no real explanation of what that discount was, what the initial sentencing thought was such that a discount should be accorded.

KEANE J: Was the inadequacy of the discount for the plea of guilty a subject of complaint to the Court of Appeal because it does not seem to be a subject of complaining a notice of appeal to this Court?

MR VINCENT: It was probably wrapped up, your Honour, on the basis that the sole ground of appeal was the totality principle, and the totality principle is one that takes into account all of the aspects of the offence and the offending and the degree of contrition of the part of the offender. That includes the mitigatory aspect of a plea of guilty.

GAGELER J: So if you wrap everything up into the totality principle your complaint comes down to this sentence simply being too long in all the circumstances.

MR VINCENT: Too long in all the circumstances, in particular given the profile of the offending over the time and the fact that the offender had, apparently, a psychiatric illness which was not addressed in terms of what is an appropriate total for this person where personal and general deterrence aspects are reduced, that there is simply no explanation as to what happened with the plea of guilty and which is - you know, that is a mitigatory aspect. So the totality principle is really - as I have suggested - really just described, but there was no flesh put on it, in any of the judgments, the - - -

GAGELER J: Well, we understand that point.

MR VINCENT: Yes, thank you, your Honour.

GAGELER J: Thank you, Mr Vincent. We will not need to call on you, Mr McGrath.

The difference between the majority and the minority in the Court of Appeal of the Supreme Court of Western Australia was as to the application of a settled sentencing principle to the particular circumstances of the applicant’s offending behaviour. The application for special leave to appeal to this Court raises no question of general importance to the administration of criminal justice. Special leave is refused.

AT 12.37 PM THE MATTER WAS CONCLUDED