Hunter v The Queen [2014] HCATrans 181 (15 August 2014)

Last Updated: 19 August 2014

[2014] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2014

B e t w e e n -

STEVEN JAMES HUNTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 2.17 PM

Copyright in the High Court of Australia

MR D.D. GURVICH: May it please the Court, I appear on behalf of the applicant with my learned friend, MR R.F. EDNEY. (instructed by Doogue & O’Brien)

MR B.L. SONNET: If the Court pleases, I appear on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

CRENNAN J: I think you need an extension of time, do you not, Mr Gurvich?

MR GURVICH: Yes, I do seek that.

CRENNAN J: But that is not opposed.

MR GURVICH: Yes, your Honour. Thank you, your Honour. The section 11 questions we have described it, section 11 of the Sentencing Act is a question of important statutory construction as to the character and operation of that provision. By identifying two criteria and two criteria only, being the nature of the offence and the past history of the offender, it is submitted that the criteria impose a punitive analysis of approaching the non-parole period or its appropriateness.

CRENNAN J: Now, your point is that the Court of Appeal, you say, erred in upholding the sentencing judge’s decision not to fix a non-parole period.

MR GURVICH: Yes, your Honour.

CRENNAN J: You look to the section in order to make good that proposition.

MR GURVICH: Yes. An analysis of the learned sentencing judge’s reasons and their essential adoption by the Court of Appeal demonstrates, in our submission, that the exercise undertaken was one of an instinctive synthesis of all of the sentencing considerations that fall for consideration, certainly when considering the duration of a non-parole period, the duration of it, how long ought it be, but not, in our submission, in any way consistent with the mandated approach required by section 11. So in illustrating that proposition the Court of Appeal and the learned sentencing judge analysed the risk of reoffending which, in our submission, is a conclusion, or was a conclusion reached, which certainly those section 11 criteria contribute to but do not and cannot determine.

KIEFEL J: But putting aside the first criterion, the nature of the offence, is not the purpose of looking to the past history of the offender the second criterion to assess, for the large part, the risk of reoffending?

MR GURVICH: To some part it is acknowledged that that must be so and that is consistent with the authorities.

KIEFEL J: Well, if the statutory considerations include a consideration of risk or have as one of its aims a consideration of risk of reoffending what do you say is the error in the Court of Appeal’s decision?

MR GURVICH: That there were other factors and criteria that ought be taken into account in reaching the conclusion that was reached, for example, a demonstration of remorse, a plea of guilty, a co-operation – a degree of co-operation, a willingness to engage in treatment, not necessarily in this case particularly, but in general terms.

CRENNAN J: But you are not suggesting these were omitted from consideration, are you?

MR GURVICH: They were not omitted, but a conclusion was reached without regard to all relevant factors that could have been raised on the applicant’s behalf so that the conclusion is reached on an incomplete basis on an incorrect analysis of the provisions of the Sentencing Act, so that it did not arise for consideration in this case when - - -

KIEFEL J: I thought your principal argument here was that risk of reoffending was irrelevant.

MR GURVICH: That is our submission.

CRENNAN J: But you are now veering off into a different argument altogether, are you not, about other considerations? In other words, you are moving right away from the way the case was run before the Court of Appeal.

MR GURVICH: We submit that the risk of reoffending could not be determined without regard to other criteria. It could not be determined by the section 11 question. That is the way we put the argument.

CRENNAN J: You put it that it was an irrelevant consideration, did not you?

MR GURVICH: Yes.

CRENNAN J: You are re-pressing that argument here, in other words, seeking to reagitate the point the same way again?

MR GURVICH: Yes, your Honour. Yes.

CRENNAN J: Well, now Justice Priest dealt with this at paragraph 114, which can be found in the application book at page 78, and at about two-thirds of the way through paragraph 114, his Honour said:

By referring to the applicant’s risk of descent into future violence – a risk that he did not think would diminish much with age – the judge was, in effect, taking into account the two matters set out in s 11(1).

Where is the error there?

MR GURVICH: It is in the words “in effect, taking into account the two matters”. The conclusion as to the risk of descent into future violence was not, and could not be determined by the two matters set out in section 11, in our submission, could not be.

KIEFEL J: You mean could not only be determined?

MR GURVICH: Yes.

KIEFEL J: Is that what you are seeking to say now?

MR GURVICH: Could not be determined by those two matters alone.

KIEFEL J: From that you seek to reach a conclusion that the risk of reoffending is an irrelevant consideration to the subsection?

MR GURVICH: To the section 11 question, it is an irrelevant consideration, in our submission, because the criteria set out there do not permit regard to be had to other considerations which would assist in determining the risk of reoffending.

KIEFEL J: What do you say is the point then of the legislature identifying past history as relevant?

MR GURVICH: The point is that there may be cases where those two criteria, the nature of the offending is so heinous and the past history of the offender is so bad that putting aside the imponderable considerations of rehabilitation or the risk of reoffending many years into the future there ought be no opportunity of parole being granted in the meantime.

KIEFEL J: That is the conclusion. What would the reasoning process be to arrive at that conclusion? It would be because the nature of the offence is such and the antecedence of the person convicted is such that they are likely to reoffend in the future.

MR GURVICH: Well, that is not the only question.

KIEFEL J: What else could past history be addressed to?

MR GURVICH: Just punishment. Past history can be - - -

KIEFEL J: Can be relevant to sentencing, yes.

MR GURVICH: Yes.

KIEFEL J: But this is in connection with a non-parole period.

MR GURVICH: Yes. The question that section 11 raises is that having regard to those two criteria, in our submission, apart from the imponderable considerations concerning the future protection of the community, the justice of the case requires an affirmative finding that the prisoner should remain incarcerated for the term of his natural life. That is the way it was described by Justice Southwell in Denyer’s Case, and a similar proposition was put forward by Justice Crockett where he said that a refusal to fix a period that rests solely upon a finding that there is now, and may be for the rest of the applicant’s life, a risk of danger to the community were he to be granted his liberty at any time in his lifetime was a refusal which the section did not empower the judge to make.

KIEFEL J: Would you agree that if the court was proceeding to fix a non-parole period that it would be relevant to consider the risk of reoffending in determining the length of the non-parole period?

MR GURVICH: In determining its length, yes, your Honour, yes.

KIEFEL J: Well, I think it is put against you by the respondent that logically, if it is relevant for that purpose it must be relevant in relation to whether or not a non-parole period is fixed at all.

MR GURVICH: In our submission, the proposition does not follow. That would be engaging the same exercise effectively for the purposes of the threshold question as it would be for the duration of the period, and that cannot be the purpose of the section, in our submission, and that is contrary to the approach taken in Power, in Shrestha, in our submission, where the emphasis is upon the ability of the parole system for allowing that review of the particular case after the service of a significant part of the custodial sentence. That cannot be done, in our submission, at the time of imposition of sentence. It certainly cannot be done – it can never be done if section 11 is exercised adversely to the prisoner.

It can be done at some time with respect to the duration of the non-parole period, and that is where the difference lies, in our submission,

and that is what requires a different approach to the two quite distinct questions. In our submission, your Honours, what the Court of Appeal has done, in effect, is to approach the section 11 question as though it were a question of manifest excess. They did that by definition, in our submission, and that is not the appropriate question. It could not be, because manifest excess does not apply to the question of whether the section 11 threshold question is answered adversely to the prisoner.

Now, those, in our submission, are important – what is raised is an important question of construction as was the case in Shrestha, which was quite a different provision because the Western Australian provision at that time had the catch-all consideration of any other matter that the court thinks relevant, and that may well be thought to allow for the introduction of other considerations, like the plea of guilty and the risk of reoffending, because it could be done completely and, in our submission, permissibly.

Here, however, the applicant points to the difference between the Victorian provision, which is somewhat similar to the Commonwealth provision and the Australian Capital Territory provision, which is quite distinct from the Western Australian provision and the other jurisdictions, and that explains the approach taken by both the dissenting judgment in Shrestha, which our learned friends rely upon, and also the majority judgment.

The majority held in Shrestha that the fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question for the sentencing judge, whether a convicted person should be eligible for release on parole at some future time, or to the subsequent question for the parole authority, whether the prisoner should be actually released. They are the considerations that could not be properly – or the conclusions that could not be properly reached, in our submission, on the assessment done by the learned sentencing judge and by the Court of Appeal.

So the two factors we have highlighted, being risk of reoffending and rehabilitation, are, in our submission, conclusions reached by the courts below which were irrelevant to the threshold question and certainly could not be properly answered by reference to those two criteria and no other. If the Court pleases.

CRENNAN J: Thank you, Mr Gurvich. We will not trouble you, Mr Sonnet.

An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal. Special leave to appeal is refused.

MR GURVICH: If the Court pleases.

MR SONNET: If the Court pleases.

AT 2.32 PM THE MATTER WAS CONCLUDED