HGJ v The Queen [2015] HCATrans 197 (14 August 2015)

Last Updated: 19 August 2015

[2015] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2015

B e t w e e n -

HGJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 AUGUST 2015, AT 12.16 PM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: If the Court pleases, I appear for the applicant with my learned junior, MR B.J. DOYLE. (instructed by Joseph Ramsay Sanders Lawyers)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (SA))

KEANE J: Yes, Ms Shaw.

MS SHAW: It is submitted, your Honours, that this was a stark case of delay of about 23 years between the offending and the report to the police by DC, one of the three victims of the offending, that was not attributable to the applicant in the relevant sense. The application for special leave in relation to our first point raises the question of the significance of delay and, to use the language of former Chief Justice Street in R v Todd (1982) 2 NSWLR 517, the unfairness to which it can give rise.

KEANE J: But, Ms Shaw, the courts below were alive to the fact of delay and the circumstances of it, and they took that into consideration in the sentence that was passed.

MS SHAW: Can I take your Honours to the sentencing remarks where, in our submission, in fact, the learned sentencing judge did not take delay into account in relation to DC. If I can take the Court to page 14 of the application book, your Honours will see that the sentencing judge addresses the submissions of Mr Algie, SC, for the applicant.

He referred at point 22 to the fact that his Honour should take into account the rehabilitation since the unlawful acts ended, that he had not committed any criminal offences since that time, but he had earlier addressed the lengthy lawful relationship from pages 9, point 35 right through to page 11, and his Honour the sentencing judge had concluded insofar as that relationship was concerned that he gave paramount consideration to the interests of the children but on the topic of delay specifically, when he came to refer to it and how he took it into account, his Honour at page 14, line 44, said:

I am permitted to have regard to the significant delay that has now passed since that time in determining the issue of your rehabilitation and I have done so. I have reflected this fact in arriving at the appropriate sentences for your offending against SC and JC and also in the final non-parole period I set.

So his Honour specifically excluded from his sentencing remarks a consideration of delay in relation to the head sentence concerning DC, in our respectful submission. When their Honours in the Court of Appeal came to address both delay in ground 1 and the lengthy relationship with DC, which was a product of delay in relation to ground 2, their Honours at application book 34, paragraph 18 - his Honour Justice Peek noted:

And if delay in relation to the DC charges is said to commence as from 1 March 1989, it is known that the appellant was then being prosecuted in relation to offending against SC and JC.

So his Honour refers to it in that part of his judgment and in the part of his judgment under ground 2 he only addresses the question of the lengthy relationship that was the product of the delay in the context of it impacting upon the claim by DC that her life had been effectively totally ruined. That is at page 35 of the appeal book, paragraph 28. Then his Honour at page 36 addresses its relevance limited to paragraph 29 on page 36, the favourable view it led to of the deleterious effects on DC.

So, in our respectful submission, both the learned sentencing judge and the Court of Appeal have not brought into account that lengthy delay in relation to DC which was in a different category in significant respects in relation to the other two complainants because in relation to DC clearly a child was born whilst the other two complainants were engaged in the prosecution in 1987 and no complaint or report to the police was made then.

He was living with DC, they raised the child together that was the product of the unlawful relationship, and then there was a further child born 10 years later and they continued to raise the two children as a family. In 2008, DC, as a result of a relationship with a man in Scotland, left the applicant and in 2011, DC decided to initiate charges related to allegations over 20 years before.

Now, that is not to be critical in any way of DC’s decision or choice to initiate charges or make a report at that time, but it is to highlight that the applicant’s life had taken a particular course for more than 20 years as a result of the delay in the matter being initiated by DC, and in particular that was borne out by the victim impact statement by the child who was the product of the unlawful relationship who, at the time the charges were presented or put forward by DC, said in his victim impact statement that he saw his very existence as the reason for his father going to gaol and he loved his father and would always support him.

So the effect of a sentence on a man who has effectively engaged with the complainant beyond the unlawful relationship to raise two children with her, and for his life therefore to have taken a particular course in the way in which former Chief Justice Street describes it in Todd’s Case, that is a course that has meant that the initiation or the prosecution at a particular point in time has a particularly devastating or has a much harsher impact on the offender than it would have had if the complaint was initiated at the relevant time.

In our respectful submission, here it is certainly not the case that there is any question that the applicant is getting away with it. Our submission is that what the principle in Todd contemplates is that if your life has taken a particular course – here he is 62 years of age – the effect of a sentence of imprisonment - and in relation to DC it was six years, eight months without any account for the delay, would have a crushing effect and may have made the life that he led effectively lost to him, so that principle has not been considered by this Court.

Todd has been approved in the case of Mill v The Queen in relation to totality, but the way in which a stale offence is approached and how it impacts upon questions of the person who has been subject to the delay, having rehabilitated themselves and be unlikely to offend again, therefore personal deterrence not having any part to play, and considerations therefore of fairness to him, are matters that we submit are worthy of a consideration of special leave.

In addition in this case, one of the other products of the delay was the introduction of section 29D of the Criminal Law (Sentencing) Act which had the result that at the time the applicant was sentenced he became liable to the higher sentencing standards, and that was recognised, not just in R v D [1997] SASC 6350; (1997) 69 SASR 413 but in the subsequent case of R v Kench [2005] SASC 85. R v Kench identified that the approach in the Court of Criminal Appeal was to - - -

KEANE J: Ms Shaw, in relation to the question that you seek to raise about section 29D, that question was not raised in either of the courts below.

MS SHAW: Your Honour, it was not but as your Honours will see from our - - -

KEANE J: If I could just go on, it was not raised in the courts below as to its validity, and also it is not apparent, because it was not raised, no doubt, it is not apparent that the sentence reflects a level of severity greater than would have been the case had that provision not been applied. It is not even apparent the extent to which the exhortation in section 29D actually affected the level of the sentence imposed on your client at all.

MS SHAW: Your Honour, can we raise three points in relation to that? The first is that as we set out in the application book at page 51, paragraph 18, your Honours will see the extract from what Justice Peek observed arguendo, and that is that clearly he was indicating that section 29D was to be brought into the equation and it effectively created standards that were intended to not apply to this case but, in effect, he was bound to apply them.

The second point we make in relation to the issue of impact is that, as the Court of Appeal observed, his Honour Justice Peek having acknowledged the application of R v D arguendo and it being plain that that was the premise upon which the sentencing proceeding – it was referred to below as well - at page 39 of the application book in paragraph 40 his Honour Justice Peek acknowledged that this was a severe sentence.

Further, your Honours, we note that in R v D itself where there, under the previous standard of sentencing, in that very loose term, there had been a sentence of six years, the court interfered and reduced the sentence and that was for a course of offending under the previous section 74. Similarly, in Kench, the court adopted an approach of reducing the sentence in the light of the previous standards, having regard to the approach in that case.

So, in our respectful submission, there is a compounding of the issue of delay, both in relation to it not being addressed by the Court of Appeal and the trial judge not taking it into account. Secondly, in relation to the application of section 29D, in our respectful submission, section 29D is a matter that we say is arguably invalid and we accept that it has not been raised before but it clearly has wide ramifications for the - - -

KEANE J: Well, it does not have ramifications for anyone beyond South Australia. It seems that it is, not surprisingly, peculiar to South Australia. It does not seem to have been taken up in any other State, and you are asking this Court to deal with the question of its validity when we do not have the benefit of consideration of that question by either court below.

MS SHAW: Your Honour, we submit the question of invalidity though is a matter of general importance and would have relevance to any case where the issue is whether or not the legislature is effectively delegating to the courts the creation of law, that is, that it passes a piece of legislation and requires the court to apply it, but the court cannot apply it without itself creating and determining the content of that law. That is a matter of, we submit, general principle and very important in the context of not just sentencing but generally.

In our respectful submission, the number - clearly sentencing itself is an important matter in South Australia but the courts have to deal with a section that has the result, as it did in this case, where the rationale for increasing the standard that his Honour Chief Justice Doyle set out in R v D that justified the prospective operation of the general standards that he indicated should be increased simply cannot apply logically to sentencing for offences that occurred before R v D.

So, in effect, what the courts involved in sentencing are asked to do is to ignore the underlying factors that the court in R v D had regard to in determining the range that might apply prospectively and then apply factors that would apply to prospective offending to offending that predated R v D when logically they did not apply.

Those particular factors that his Honour Chief Justice Doyle had regard to were, first of all, the increasing community understanding of the insidious effect of child abuse, that a warning should be given, and that in the future standards should generally be higher. Where the sentencing is, in effect, an instinctive synthesis approach, not one that has an arithmetic or a mathematical integer, in our respectful submission, the approach of Parliament to effectively direct a court to apply one aspect of this sentencing leaves the court then to engage in what we submit is necessarily a legislative role.

In our respectful submission, the fundamental principle that this undermines and is contrary to is the principle of equality because the effect – and that was one of the factors that his Honour Chief Justice Doyle took into account in determining that the starting points that he had in mind and the rationale for his decision should only be prospective because what it would mean is that two offenders sentenced for similar offences that predated R v D but one being dealt with after R v D would necessarily get a higher sentence just because of the passing of R v D.

So, in our respectful submission, it does raise an important question as to the validity of section 29D and courts are effectively left to grapple with applying one aspect of R v D but not being able to comply with the rationale underpinning what led to his Honour Chief Justice Doyle’s reason for suggesting standards should be increased.

We make this final point by way of the issue that necessarily arises from this transference to the judiciary of the unpicking of this legislation. More recently, the current Chief Justice indicated that they might have to sit a court of five to decide whether or not the standards that are indicated in R v D should change, and the question is, is that a matter for the legislature or is that a matter for the court? So this intermingling of judicial and legislative function, in our respectful submission, does amount to an

improper delegation to the judiciary of a legislative function and we say that - - -

KEANE J: Well, certainly insofar as there may be a question about that, the usual course would be that the first court to consider it would be the Court of Criminal Appeal or the Full Court of the Supreme Court of South Australia. The prospect that you hold out seems to be really suggesting that the way these things ought to be done ought to be done.

MS SHAW: In our respectful submission, there are two points we make. One is that in this particular case the interests of justice do support a grant of leave for the matter to be tested and it demonstrates that there is a real question of principle that needs to be determined as to the validity on approach where Parliament seeks to endorse part of a judgment of a court and then delegates to the court the balance of trying to unravel it and adopt what must be – and create what must be a new approach to sentencing.

In our respectful submission, for a 62-year-old man who had lived 20 years or so of his life in a particular way to not have that delay and have the impact of these new sentencing standards upon him is a matter that in the interests of justice ought to be the subject of a grant of special leave. If the Court pleases.

KEANE J: Thank you, Ms Shaw. We need not trouble you, Mr Solicitor.

We are not persuaded that there is sufficient reason for this Court to review the conclusion of the Court of Criminal Appeal that the sentence passed was within the discretion of the sentencing judge, and given that the validity of section 29D of the Criminal Law (Sentencing) Act 1988 (SA) was not raised below this case is not a suitable vehicle for the agitation of the question of the validity of that statute in this Court. Special leave should be refused.

The Court will now adjourn until 10.15 am on Tuesday, 1 September in Canberra. Adjourn the Court please.

AT 12.38 PM THE MATTER WAS CONCLUDED