Milat v The Queen [2014] HCATrans 205 (12 September 2014)

Last Updated: 16 September 2014

[2014] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S100 of 2014

B e t w e e n -

MATTHEW MILAT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 11.00 AM

Copyright in the High Court of Australia

MR J.S. STRATTON, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.J. PEARSALL. (instructed by Legal Aid NSW)

MR L.A. BABB, SC: Your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Mr Stratton, I think you require an extension of time.

MR STRATTON: Yes.

FRENCH CJ: Is that opposed?

MR BABB: Not opposed.

FRENCH CJ: The extension is granted. Yes, Mr Stratton.

MR STRATTON: Your Honours, this appeal, we say, raises two questions of general importance to the criminal justice system: first, whether a sentencing judge, having to determine that the starting point for a sentence, taking into account the relevant objective and subjective factors, having decided a sentence less than the maximum penalty is appropriate, is a judge entitled to allow no discount for an early plea; and, secondly, where two co-offenders are sentenced for the same offence and both plead guilty and one offender is given a discount for his plea but the co-offender is given no discount, is the co-offender entitled to a legitimate sense of grievance.

FRENCH CJ: Why is not the first point just a matter of discretion?

MR STRATTON: It is a matter of discretion but it is submitted that it is a matter of discretion that has to be exercised in accordance with principle. Your Honours, it is conceded that this was a very bad case of murder. However, the applicant was still 17 years old at the time of the offence – in fact, 17 years and 11 months. His sole prior conviction was for a drink driving offence and he entered a plea of guilty at a very early stage, that is, in the Children’s Court. Similarly, the co-offender, Klein, was 18 years old at the time of the offence. Similarly, his only prior convictions were driving matters. He also entered a plea of guilty but contested the facts.

Your Honours, in relation to the first ground, this Court has, in cases such as Signato and Cameron referred to the principle that ordinarily a plea of guilty is to be taken into account as a matter of mitigation, as a matter of willingness to facilitate the course of justice. In a guideline judgment of the New South Wales Court of Criminal Appeal in Thomson and Houlton then Chief Justice Spigelman said that there were some cases where the protection of the public required that a long sentence be imposed to protect the safety of the public and that no discount was appropriate. That is at paragraphs 157 to 158 of the judgment, which are set out in the written submissions.

GAGELER J: They are also set out in the judgment of the Court of Criminal Appeal at page 72 of the book.

MR STRATTON: Yes.

GAGELER J: They are taken into account. How is the principle not applied?

MR STRATTON: In my submission, either there has been an error in the Court of Criminal Appeal’s reasoning in Thomson and Houlton or the interpretation of it. In fact, in those passages, that is paragraphs 157 to 158, all the cases that are referred to, apart from Kalache, were cases where the maximum penalty was imposed. That is where the sentencing judge considered that even taking into account the plea of guilty that nothing less than the maximum penalty was applicable.

Now, Kalache is a bit different because Kalache was a Crown appeal where the majority judgment – well, where the Court of Criminal Appeal unanimously allowed the appeal. Two of the judges of the New South Wales Court of Criminal Appeal in that case thought that the first instance sentencing judge should have imposed the maximum penalty. As it happened, though, a lesser penalty was imposed on resentencing.

So it is submitted that really all the cases relied on in Chief Justice Spigelman’s judgment as authority for the proposition set out in paragraphs 157 to 158 fall into this category, that is, the cases where the sentencing judge, having taken into account all the factors including the plea of guilty, determine that there was no appropriate sentence less than the maximum penalty. We concede that there is a line of authority to that effect, that is that it is discretionary, that the judge is entitled to say, “Bearing in mind the objective gravity of this offence nothing less than the maximum is appropriate”.

FRENCH CJ: But does that mean that if less than the maximum is imposed by reason of youth or other factors, that a discount for an early guilty plea becomes mandatory?

MR STRATTON: In my submission it has to be taken into account and - - -

FRENCH CJ: Did not the trial judge do that at page 36 of the application book in paragraphs 108 and 109?

MR STRATTON: In my submission, for her Honour to have said, in effect, “I will give the plea of guilty no weight” and that is in effect what her Honour said at application book page 36, paragraphs 108 and 109, it is submitted that for the sentencing judge to say “I am aware that he pleaded guilty at a very early stage but I will give it, in effect, no weight - - -

FRENCH CJ: It is not “no weight”. It is simply overwhelmed by the – first of all the utilitarian value of the plea is outweighed by the “extreme gravity of the crime committed”.

MR STRATTON: My submission on that, your Honour, is that to say “I am not going to allow any discount at all of this very early plea” is, in effect, to give the plea no weight at all. In my submission there is no difference. It is submitted that it is a different situation. Once, in my submission, a sentencing judge has determined that taking into account all the appropriate subjective and objective factors, leaving aside the plea, and then determines that for such a mix of subjective and objective factors a sentence less than the maximum is appropriate, in my submission it is not consistent with principle or with policy, good policy not to allow any discount at all for the plea.

It is submitted that the problem in principle is well illustrated by the next ground, that is ground 2.2. This Court has said in cases such as Postiglione that equal justice requires that like should be treated alike but that if there are relevant differences due allowance be made for them. The Crown case in relation to both the applicant and his co-offender, Klein, was that they had an intention to kill the deceased. Klein’s role, it is conceded, was a lesser role than that of the applicant, Milat. His role was to keep Day, who was the fourth person in the car, at bay, and to record the killing which he knew was going to occur.

It is conceded that Milat’s role was objectively more grave. However, it is submitted that the judge’s determination of the respective starting points took that into account. Your Honours, I have endeavoured to - - -

FRENCH CJ: You have tied the disparity to the discount allowed to Klein by reason of the plea of guilty, have you not?

MR STRATTON: Yes. Your Honours, could I hand up in chart form what I have set out in the written submissions as to the effect of not giving a discount to the applicant?

FRENCH CJ: Yes, if I can have that handed up, please.

MR STRATTON: Your Honours, looking at the left-hand column, in relation to Mr Milat he was sentenced at first instance to 43 years with a non-parole period of 30 years, so, in effect - and of course your Honours are aware that no discount was given for the plea. So, in effect, the starting point was 43 years, and that was also the endpoint, as it happens, and that sentence was not disturbed in the New South Wales Court of Criminal Appeal, so the sentence remains 43 years with a non-parole period of 30 years.

Now, her Honour in relation to Klein did not set out a starting point of the sentence, but by her Honour’s indication of the amount of the discount that she gave, the Court of Criminal Appeal calculated that her Honour’s starting point must have been 38 years. So, that is, having taken into account all the relevant subjective and objective features, apart from the plea of guilty, her Honour determined that an appropriate differentiation between Milat and his co-offender was that Klein’s starting point was 88 per cent of that for Milat.

Her Honour made an allowance for Klein in relation to his plea, but not for Milat’s, and as a result the resulting sentence for Klein was a head sentence of 32 years and a non-parole period of 22 years. So that step alone meant that the differentiation between Milat and Klein, taking into account all relevant factors, had become 74 per cent.

GAGELER J: Do you say that that difference cannot be justified by the relative degree of culpability?

MR STRATTON: In my submission, no, because her Honour already took that into account in determining the starting point, the starting point being taking into account all the relevant factors apart from the plea. So, in effect, it is submitted that there has been double counting, that in effect the gravity of the offence is taken into account not only in setting the starting point, but it is also taken into account in not making a discount – not allowing a discount for the very early plea.

FRENCH CJ: Where was this actually dealt with the by the Court of Criminal Appeal? It is ground 5, is it?

MR STRATTON: Yes.

FRENCH CJ: That was then tied back into - - -

MR STRATTON: Your Honour, sorry, ground 3.

FRENCH CJ: Yes, but ground 5 was tied back into ground 3, I think. So ground 3 is the no discount for plea of guilty, and then ground 5, disparity

of sentences, which was obviously based on the discount of one case and discount of the other. That was tied back into ground 3.

MR STRATTON: Yes, exactly.

FRENCH CJ: Because I did not see in the notice of appeal to the Court of Appeal any separate ground based on - - -

MR STRATTON: Leave was sought to add an additional ground in the Court of Criminal Appeal to argue that.

FRENCH CJ: I see, yes, okay.

MR STRATTON: Your Honour, what happened at the Court of Criminal Appeal was that the Court of Criminal Appeal determined that the starting point should have not been 38 years, but should have been 36 years. That is at application book 96. So that again – that meant that the Court of Criminal Appeal’s assessment of the relativities, taking into account all the relevant factors apart from the plea, was that Klein deserved to have a sentence which was 62 per cent of that for Milat. But then the Court of Criminal Appeal in fact increased the discount which had been allowed to climb, which the sentencing judge had somewhat reduced because of the fact that there was a contest on the facts. So the ultimate sentence for Klein was a head sentence of 27 years and a non-parole period of 20 years.

Now, just to recap, the sentencing judge’s assessment of the relative objective gravity of the offence, and taking into account the subjective factors when her Honour sentenced, was that Klein deserved a starting point of 88 per cent of that from Milat, but that was successively reduced and the ultimate result was that Klein’s head sentence of 27 years was only 62 per cent of the head sentence for Milat.

So, in a sense, it submitted that ground 2 is an exposition of the difficulties in principle with not allowing any discount for a plea of guilty because of the gravity of the offence, and we say in effect it is a double counting going on. Your Honours, those are the submissions, thank you.

FRENCH CJ: Thank you, Mr Stratton. We will not need to trouble you, Mr Babb.

The applicant was convicted of the offence of murder on his own plea of guilty. The sentencing judge took the plea into account as required by section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although authorised by that provision, where there has been a plea of guilty, to impose a lesser penalty than would otherwise have been imposed, the sentencing judge declined to do so having regard to the extreme gravity of the crime and the serious danger which the applicant presented to the public. The Court of Criminal Appeal declined to interfere with her Honour’s exercise of that discretion. On its face, the exercise of the discretion was open to the sentencing judge. No question of principle warranting the grant of special leave is shown in that respect. Nor, given the difference in their roles, is there any ground warranting special leave based upon disparity between the sentences imposed on the applicant and his co-accused. Special leave will be refused.

AT 11.16 AM THE MATTER WAS CONCLUDED