Martin v The Queen [2016] HCATrans 15 (12 February 2016)

Last Updated: 15 February 2016

[2016] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C11 of 2015

B e t w e e n -

COREY MARTIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR S.L. GILL: I appear with MR A.L. HOPKINS for the applicant. (instructed by Legal Aid (ACT))

MR J.R. WHITE, SC: May it please the Court, I appear with my learned friend, MR M.A. REARDON, for the respondent. (instructed by Director of Public Prosecutions (ACT))

FRENCH CJ: Yes, Mr Gill.

MR GILL: On 16 October 2013, Corey Martin was sentenced for the offence of murder to 22½ years imprisonment with a non-parole period of 17½ years. He appealed. The sentence appeal was heard on 5 May 2014, at which time it was argued that the trial judge had erred in an identifiable and fundamental manner relating to the use of current sentencing practice and the assessment of relative objective seriousness, that he dismissed the value of the past murder sentences in the Territory. That appeal was dismissed by the Court of Appeal on 13 August 2015.

FRENCH CJ: That is an astonishingly long time after the hearing. Is there any particular reason for that?

MR GILL: None that I can discern. There was also an appeal for conviction.

FRENCH CJ: Yes, but it was all in the one judgment, was it not?

MR GILL: Yes, and the appeal for conviction had in fact been heard sometime before the appeal in relation to sentence was argued.

FRENCH CJ: Well, the latter was heard in May, I think.

MR GILL: Correct, your Honour.

FRENCH CJ: The former in February.

MR GILL: Yes. The sentence appeal was dismissed as being a complaint not directed to discernible error and so there are three aspects of what we bring to you today. The first is the place of pattern or current sentencing practice, whether what happened here on sentence recognised that and whether the related appeal grounds were a complaint about a discernible error or not.

Two of the fundamental qualities of a sentence are, on the one hand, that it will involve an individualised approach which is tailored to both the individual offence and the individual offender. On the other hand, there is consistency in sentencing, that is, it is not a matter of luck or bad luck in the judicial draw but it is an aspect of equal justice at work. So there is a tension at play between individualised justice and consistency and there is a strong connecting factor between those two which involves current sentencing practice.

KIEFEL J: You refer generally to a failure to apply current sentencing practice, but what is the actual error? How do you identify that part or aspect of current sentencing practice which is the error?

MR GILL: If current sentencing practice is a mandatory consideration and if current sentencing practice involves a comprehension of patterns of sentencing, so patterns of how particular factors are dealt with or patterns that reveal within themselves the unifying principles for sentencing or patterns which show a court what is relevantly alike between different cases and relevantly dissimilar, then it is the presence of the pattern and what is to be derived from that that gives rise to the principles which allow proportionality. So, we say that it is an integral aspect and if there is not a consideration of the pattern itself or what is revealed by the pattern that that constitutes an error in the application of principle.

KIEFEL J: Or coming at it another way, how do you say that there can be discerned here a failure to take account of current sentencing practices, assuming for present purposes that they were available given that this is a new offence, is it not – this was a relatively new offence?

MR GILL: Yes, it was a relatively new offence. It was a different species of murder for the Territory. There was one other example, which was the example of Yuen.

KIEFEL J: The sentencing judge was referred to other cases but said to defence counsel that they were different, not applicable and not of assistance.

MR GILL: Effectively, yes, that they were useless.

KIEFEL J: So what was the sentencing judge required to have regard to?

MR GILL: The fact that there were differences between the sentences, we say, did not answer whether or not the judge was required to have regard to them.

FRENCH CJ: Was there a relevant sentencing practice, to which he should have had regard?

MR GILL: Yes.

FRENCH CJ: What was that?

MR GILL: One of the aspects that we say about a pattern is that a pattern requires a difference in order to establish a pattern, that sentences are not homogenous and the defences are not homogenous. So that is what required in order for there to be a practice or a pattern derived from a practice is difference, so that one has to examine difference in order to be able to apply a pattern.

So, firstly, we say that the mere fact that there were differences between the other sentences did not remove the usefulness of those other sentences for the sentencing judge and did not remove the need to consider those sentences. The reason that we say that is of course that every sentence is going to be different. There will be sentences that bear some similarities to others, but there will be sentences which are different to each other.

If we look at murder, for example, by its nature it is the most serious offence for which somebody can be sentenced. Conveniently, in this case, there are a confined number of examples of murder within the Territory to which the judge could be taken, and was taken, and what those sentences reveal are gradations of seriousness. So even though murder is the most serious of offences, it is an offence which contains gradations within it.

Those gradations are perceived from the pattern in which the different sentences are dealt with and the proportionality between sentences is derived from that pattern. The pattern is seen by examining what was different between the sentences and what was the same between the sentences. So that once the sentencing judge dismisses the usefulness of those sentences because they are different, he at the same time dismisses the usefulness of the pattern of sentences between them. For example, we would say that the between the different offences for which people have been sentenced in the Territory relies heavily on aspects such as premeditation. It is not the sole aspect for which somebody is sentenced.

FRENCH CJ: This was described as a premeditated vicious attack of extreme violence on the victim in his own home.

MR GILL: Correct. The fact of premeditation is revealed by – the pattern, we say, reveals a number of important matters that need to be taken into account in relation to premeditation. The premeditation encompasses at least two things and one is the duration of planning, the quality of the planning that takes place. The second thing that it encompasses is as to what precisely is premeditated. Is it premeditated, for instance, that an incident might involve some sort of violence, or is - - -

FRENCH CJ: Well, that was clear in this case, was it not?

MR GILL: Yes. Is it premeditated that it will involve significant violence, is it premeditated that it will encompass serious injury for the victim or is it premeditated that it will be death – that the objective of the exercise is to secure the death of the person? What the pattern, we say, reveals is that those aspects are the sorts of aspects that bear quite heavily on sentence and that there is a differentiation between those aspects in the sentencing pattern.

Again, by way of example, if one looks at the differences between the cases to which his Honour was taken, one of the different cases was the case of Conway. Conway was dissimilar to Martin because Conway’s objective was to secure the death of his wife. Because he was seeking to secure the death of his wife, he hired two assassins in order that that would take place.

Now, in distinction to that, death was not Mr Martin’s objective. The court was not even satisfied that death was within his contemplation, though of course the court was satisfied that there was premeditation that there would be violence that would take place.

FRENCH CJ: He would knock him out and if he woke up he would knock him out again.

MR GILL: Correct, your Honour. The fact, we say, of the difference is that the difference goes to the question of proportionality between sentences. The differences exhibited in the pattern of the sentences enables a court to look to proportionality so that it can establish consistency in sentencing while applying the same principles between sentences.

KIEFEL J: It sounds like quite a scientific exercise. Is some kind of tabulation required - - -

MR GILL: No.

KIEFEL J: - - - to pull apart each of these – does current sentencing practice actually encapsulate all that you are suggesting?

MR GILL: We would say yes, that it does not require tabulation. In fact, tabulation can well be unhelpful.

KIEFEL J: Yes.

MR GILL: But what the current sentences provide are the set of yardsticks that are able to be used to measure a sentence, and what a set of yardsticks encompasses is effectively a set of vectors within a sentence that point in different directions. So that when one looks at a different case like Conway, one can appreciate that there is a vector pushing that towards a high level of seriousness because of the nature of the premeditation and it pushes the sentence more forcefully than it is pushed in Martin.

A way of understanding that is to look at the sort of sentence that was imposed in Conway, not to jump to the conclusion that it is imposed because of a single factor, but to look at the sort of sentence that is imposed. If one then looks at the other sentences in the pattern to which his Honour was taken, for example, the case of Massey, Ms Massey had a knife, she had contemplated physical violence with Ms Booshand. She killed Ms Booshand. She was not there to secure Ms Booshand’s death but was reckless as to Ms Booshand’s death.

When one looks at those sorts of factors for Ms Massey and compares them to a case such as Conway, one then appreciates that as a question of proportionality or looking at a pattern, she appears at the other end of the spectrum to somebody like Mr Conway whose objective was to secure the death of his wife.

FRENCH CJ: It seems to me that the concept underlying your submissions is that past sentences for murder lie along some kind of line, some kind of access which has a numerical value attached to each, namely the sentence imposed and that somehow or other the judge’s task looks to finding a place along that access which is defined by the values given to other sentences, so less than 24 years because Conway hired, as you put it, an assassin – presumably more than something else because there was some lesser element of culpability.

But that gives perhaps too much precedential value to individual sentences that have been passed before, whereas the notion of current sentencing practice involves the discernment of some broader approach to sentencing than the kind of highly resolved approach that you are taking.

MR GILL: Save that the reason why we moved to looking at the numbers is – we do not say that there is an axis - if anything, we are dealing with a multi-dimensional space. There are vectors that point in different directions. The reasons why the numbers become useful is that it is not sufficient to simply look at a vector and say well, it is pushed in one direction or it is pushed in another, but there is required to be an appreciation of how far it pushes in terms of its impact upon the practical outcome.

So one can look at a factor, for example, to say there are two murders which are identical in every respect, save that for one there is a plea of guilty and for one there is not a plea of guilty. The numbers play some role in establishing consistency of sentence. That is not to say that there is a precedent here that person X has been sentenced for, in all respects, an identical murder to person Y, other than there has been a plea of guilty.

That is not to say that that forms a precedent for the second sentence, but is to say the number gives some kind of appreciation for how one comes to apply consistency. If the numbers are completely out of kilter, then there is a question about whether there is an understanding of its place within the overall pattern of how a sentence is administered.

So we say it is not as simple as plotting across a graph and saying, “X got more, therefore we should have got less.” But it is to say, “Well, Mr Conway got this particular amount and he got this particular amount in a context where there were these factors pushing the sentence in a particular direction.” That forms a part of the pattern not on its own but when one compares it to a case like Massey, or to a case like Yuen or to a case like Eastman, for example, and by deriving all of those cases together one can say, “For these cases we can see a push in this direction and here is the practical outcome that comes from that”. How then does Mr Martin sit within that overall pattern so that a yardstick can be applied to what it was that he was sentenced with to say, “Well, that’s out of kilter in some respect”.

KIEFEL J: Is this a “manifestly excessive” argument, as the respondents suggest?

MR GILL: It is not a “manifestly excessive” argument. It does argue that there is excess but not that there is manifest excess. We accept that appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases. So we accept that that is the case. We say it is markedly different from the sentences that have been imposed in the other cases to which the judge was taken.

But we say that what has driven that result is a discernable error, which is the way that his Honour used those other cases. If he had used the other cases appropriately - or “properly” is the word that we have used – as opposed to rejecting them because of difference, then that pattern would have acted as a constraint on what his Honour did to Mr Martin. It is an error which we say is not corrected by us coming to the Court and saying what he received was markedly different, but is correctable by saying it was not a proper application of principle because he ignored the pattern.

KIEFEL J: I see in, I think, paragraph 15 of your outline that you set out the statement by the sentencing judge that says that, although he does not gain much assistance from the cases to which you have referred, that is not to say that most of them are not useful as a guide. But what you are really saying is that the judge, in the sentencing process, should have expressly stated some identification of factors and then compared them with the factors here? As the Chief Justice said, that is not really taking account of overall sentencing practices; it is just undertaking a process of comparison, is it not? That is your complaint, that the comparisons did not favour you?

MR GILL: Our complaint is that we would have been favoured by a comparison which took into account the differences. I do not quarrel with the use of the word “comparison”. What we are seeking to be compared with is not a single case. It is not saying to the Court, compare it against Conway, it is not saying to the Court compare it against Eastman, it is saying compare against this compendium of cases because the pattern that is derived from them provides a yardstick against which, if the yardstick had been applied, the sentence would not have been applied.

So, his Honour did make a reference to other sentences in the way that your Honour has expressed but our point is if he comprehended that what all the other sentences have done was provide enough of a pattern that he could look at Martin and say where does this case fit into the way these other people have been dealt with, appreciating that there are differences between each of them, does it fall towards the upper end, does it fall towards the lower end, does it fall towards the middle? I must apply a yardstick to this because if I do not apply a yardstick I might be doing individualised justice but I am not doing it in a way which is consistent with the way that the courts of the Territory have been dealing with people for murder. I am off on my own frolic. I am sentencing in an idiosyncratic way which is tailored to you but is unconstrained by what has happened in other cases.

If his Honour had appreciated that the pattern is that anchor between consistency and individualised justice and he could not have turned and said, “Frankly, I gain little assistance from these cases because of the differences”, because it was differences from cases like Conway and differences from cases like Massey which would then enable him to look in the overall space of which the sentences fell because not only is it necessary for consistency for there to be a consistent application of principle but there needs to be some sense of magnitude which accompanies that and we say that it is the pattern that gives that sense of magnitude that accompanies the effect of the principles that are to be applied.

So we say that that is the problem that one ought not just look at a principle, one needs to look at the question of magnitude. One cannot look

at magnitude in a precedential manner. One has to look at the way that magnitude flows across an entire pattern which is developed from a number of cases, each of which is an exercise of the judicial wisdom of the sentencing or the appellate judge at first instance.

We say that is what derives into a pattern. That pattern then constrains idiosyncrasy otherwise a judge is entitled to say “I take into account these factors but I sentence you out here because I will not have regard to the pattern because there are differences”. That, in essence, is the problem that we complain of for Mr Martin. If it please the Court.

FRENCH CJ: Thank you, Mr Gill. We will not need to trouble you, Mr White.

In our opinion there is no prospect of success on an appeal from the decision of the Court of Appeal. Special leave will be refused.

AT 9.51 AM THE MATTER WAS CONCLUDED