AB v The Queen

Case [1999] HCA 46

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

AB  APPELLANT

AND

THE QUEEN  RESPONDENT

AB v The Queen [1999] HCA 46
9 September 1999
S151/1998

ORDER

  1. Appeal allowed.

  1. Set aside order 2 of the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeal to that Court.

  1. Remit the matter to the Court of Criminal Appeal of New South Wales to be dealt with in accordance with these reasons.

On appeal from the Supreme Court of New South Wales.

Representation:

C A Porter QC with P Byrne SC and E H Pike for the appellant (instructed by Greg Walsh & Co)

T L Buddin SC and A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

AB v The Queen

Criminal law – Sentence – Principles – Offences not forming the basis of extradition – Extradition law – Confession and non-insistence on rule of speciality – Whether sentencing Court required to have regard to the public interest in the accused's confession and non-insistence on rule of speciality.

Appeal – Sentence for criminal offences – New ground added in appeal to High Court – Ground not expressly taken at first instance or in Court of Criminal Appeal – Whether ground could or should be allowed – Whether materials before lower courts, relevant to ground, sufficiently raised point of law for consideration in High Court.

Extradition Act 1988 (Cth), s 42.

  1. McHUGH J.   In this appeal, the appellant seeks to set aside an order of the Court of Criminal Appeal of New South Wales upholding sentences in respect of 67 offences against school children who were under his care and control.  Thirteen of the offences involved sexual intercourse; 46 involved indecent assaults, seven involved acts of indecency and one involved an act of gross indecency.  The offences did not reflect the true extent of the appellant's criminality.  In some cases, the charges were simply representative of many offences committed against the same child.

  2. The appellant, who was a Marist Brother teacher at the relevant time, was sentenced to 18 years imprisonment with a minimum term of 13½ years.  He contends that the sentence was manifestly excessive.  But his principal contention is that the trial judge failed to give sufficient weight to the fact that, of the 67 charges, prosecution in respect of 39 of them was made possible only because, after he had been extradited to Australia, he "expressly waived his rights under the Extradition Treaty" to return to the United States without these 39 charges being laid against him.

  3. Waiver of his extradition rights was not a ground that the appellant relied on before the sentencing judge or in the Court of Criminal Appeal.  Indeed, it seems likely that no one suggested to the learned sentencing judge that the…

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Details
AGLC
AB v The Queen [1999] HCA 46
Case
[1999] HCA 46
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by AB against the severity of a sentence imposed for 67 sexual offences committed against 15 children over a decade. The appellant's primary argument was that he was entitled to a significant reduction in his sentence because he voluntarily confessed to numerous additional offences beyond those for which he was extradited from the United States.

The central legal issue before the High Court was whether the sentencing court was obliged to give substantial weight to the appellant's confession of offences not forming the basis of his extradition, and his non-insistence on the rule of speciality, when determining his sentence. A further issue concerned whether a new ground of appeal, not expressly raised in the lower courts, could and should be allowed by the High Court.

The High Court allowed the appeal, finding that the Court of Criminal Appeal had erred in dismissing the appellant's appeal against sentence. The majority reasoned that the sentencing judge had improperly treated the appellant's confession and disclosure of additional offences as merely a matter of self-interest, rather than a significant factor warranting a substantial discount. The Court held that the public interest in encouraging such confessions, which facilitates the administration of justice by bringing all relevant offending to light, should have been given greater consideration. The matter was remitted to the Court of Criminal Appeal for re-sentencing.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside order 2 of the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeal to that Court.

3.

Remit the matter to the Court of Criminal Appeal of New South Wales to be dealt with in accordance with these reasons.

Background

Background to the litigation

This is an appeal against the severity of a sentence imposed upon the appellant for 67 offences committed by him against 15 children over a period of about a decade. The appellant's principal submission is that he was entitled to a "generous discount", because he volunteered information to the police about numerous other offences with which he was not initially charged and which were not the subject of extradition proceedings in the United States which resulted in his extradition to Sydney.Facts The appellant is a 48 years old man who was, until March 1987, a teaching Marist Brother at various schools. He had joined the order in 1968 when he was 17 years old. The offences of which the appellant was convicted, and in relation to which he pleaded guilty, were all committed against children, all of whom were under his care or control as a teacher, and who were then between the ages of nine and 11 years. Each of the offences was of a sexual nature. More particularly, there were 13 offences of sexual intercourse, 46 of indecent assault, seven acts of indecency and one of gross indecency. The appellant submits that it is relevant that none of the offences involved penile penetration. The first offence was committed in about Easter of 1976, and the last, in 1987. While it is not necessary to elaborate further on the particular details of them, it is clear that they involved grave breaches of trust on the part of the appellant, and produced, as the trial judge noted, "deep-seated long-lasting, if not permanent, psychological damage" in the victims. Information regarding the offences came to the attention of the police in this way. In 1989, two complaints were made about the appellant to the Campbelltown police. Statements were taken and preliminary enquiries were made. Within days of the taking of those statements, the appellant fled to Chicago in the United States. We use the word "fled" because it seems that the appellant was aware of the complaints before he left the country, and that his departure was precipitated by them. The appellant successfully evaded apprehension for some time: he was "on the run" in North America for several years. Whilst he was living in North America the appellant voluntarily underwent treatment, after diagnosis of an obsessive-compulsive personality disorder and immature personality traits. The appellant's treatment appears to have had some success. He left the Order of the Marist Brothers and obtained employment. He married in 1992. There is no evidence that the appellant re-offended after leaving Australia in 1989. In 1995, the appellant's evasion of the authorities ended with his arrest in the United States. Although he resisted extradition, once orders in that regard were made, he co-operated fully with the police. In a long and detailed record of interview, he not only made full and frank confessions in respect of all 28 offences with which he was at that point charged, but also volunteered information about 39 additional offences. None of these 39 additional offences formed the basis for his extradition, and accordingly it may not have been possible, without more, for him to be charged with them on his arrival in Australia (see s 42 of the Extradition Act 1988 (Cth)[11]). [11]Section 42 provides:"Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:(a)be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:(i) any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or(ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or(b) be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GUMMOW AND CALLINAN JJ HUGH J KIRBY J (dissent) HAYNE J
Clearly, in this reference to the number of victims and the period of the offending, the judge was taking into account the way in which the appellant's confession of the post-extradition offences had added 39 instances (some of them representative), nine additional victims and an additional interval of eight years in which the appellant had admitted to committing sexual offences against his pupils ("so many victims, over such a long period"). To that extent, it is plain that the post-extradition offences played an important part in the judge's reasoning and in the justification which he felt existed for what he accepted might otherwise appear to be an "overly harsh" overall sentence. Decision of the Court of Criminal Appeal The judges of the Court of Criminal Appeal divided over the outcome of the appeal. The leading opinion was given by Sperling J (with whom Gleeson CJ agreed without additional reasons). The appellant was given leave to appeal against his sentence, but his appeal was dismissed[29]. In the opinion of Grove J, the other member of the Court, the sentence was "manifestly excessive"[30]. Grove J reached this conclusion by assuming that, because, as the sentencing judge had found, the appellant had presented a "powerful" case of circumstances personal to himself, the sentence actually imposed had already been discounted by "something in the order of 25 percent"[31]. Upon this basis, Grove J inferred that the sentence which Freeman DCJ had concluded was required by the objective criminality of the offences was 24 years penal servitude. This he regarded as clearly too severe, notwithstanding the seriousness of the offences and large number of them. In the opinion of Grove J the proper sentence was one of 14 years penal servitude with a minimum term of 10 years[32].[29]Appeal judgment at 42.[30]Appeal judgment at 4.[31]Appeal judgment at 4.[32]Appeal judgment at 5. Sperling J was critical of two of the findings of Freeman DCJ. The first concerned the latter's inclination to reject the expert opinion that the appellant would not reoffend[33]. The second was his conclusion that "only the actual punishment will serve to deter him"[34]. Sperling J observed that these were not conclusions supported by the evidence. But he did not believe that the overall sentence imposed was attributable "in any material degree" to such errors[35]. [33]Appeal judgment at 21.[34]Appeal judgment at 21.[35]Appeal judgment at 22. Sperling J rightly emphasised the duty of trust required of every teacher[36]. He also mentioned the special authority accorded to a religious teacher in a religious school to influence the opinions of pupils in their perceptions about the morality of behaviour[37]. His Honour examined a number of sentences which had been cited as comparable, involving sexual offences against children. He considered that all of these were distinguishable[38] and that the sentence in the present case was not out of step with an established pattern of sentencing in similar cases[39]. He then addressed the principal complaint, said to have been the failure of the sentencing judge to give sufficient weight to the admission of guilt and the voluntary disclosure of other offences. After reference to earlier decisions of the Court of Criminal Appeal[40], Sperling J acknowledged that, after the appellant had been brought back to Australia involuntarily, he had "confessed to all the matters with which he was charged and volunteered information in relation to a considerable number of further offences"[41]. But far from recognising that the appellant was entitled to any special consideration for having waived the right to confine the prosecution, as then constituted, to the offences on which he had been extradited, his Honour rejected the significance to be attached to the confession of the post-extradition offences. He said[42]:"[T]he weight of the case against [the appellant] was overwhelming; there was no reasonable prospect that so many children might be disbelieved. And as to the matters disclosed by the [appellant], it was by no means unlikely that they would have come to light in any event. There was evidence before his Honour that publicity had prompted one female complainant to contact the police shortly prior to the [appellant's] extradition and a male complainant to contact the police shortly after the [appellant's] extradition. More complaints were likely to be made as time passed. It must have been apparent to the [appellant] that nothing could have been more prejudicial to his situation at that stage than for further complaints to be made which he had not disclosed. There was also the risk that, if further complaints came to light after conviction, further charges would be laid and the sentence extended. To confess to the matters with which the [appellant] was charged and to disclose others was no more consistent with contrition than with self-interest."[36]Appeal judgment at 26.[37]Appeal judgment at 25.[38]Including R v Clare [1984] 2 NSWLR 522; R v Fisher (1989) 40 A Crim R 442; R v Ridsdale (1995) 78 A Crim R 486. Ridsdale was the case with closest similarity. It involved offences by a parish priest against some 40 boys over a period of about 20 years. A sentence of 18 years, with 15 years non-parole period, was not disturbed by the Court of Criminal Appeal of Victoria. Sperling J pointed to the differences between the authority which a teacher had over pupils and that of a parish priest.[39]Appeal judgment at 32.[40]Including R v Ellis (1986) 6 NSWLR 603 at 604; R v Winchester (1992) 58 A Crim R 345 at 350.[41]Appeal judgment at 37.[42]Appeal judgment at 37-38.

Ratio Decidendi

Legal Principle Established

Established by: GUMMOW AND CALLINAN JJ, HUGH J, HAYNE J

One of the documents there referred to may have been an affidavit sworn by Mr Walsh, the solicitor for the appellant, on 28 October 1996, which was some days after the date of the Embassy's note. The relevant parts of the affidavit are as follows:"COMMONWEALTH OF AUSTRALIA )STATE OF NEW SOUTH WALES )EXTRADITION ACT 1988 )...1. I am a solicitor of the Supreme Court of New South Wales. ...3. I say that upon the return to New South Wales of [AB], I was retained by him as his solicitor in respect of his prosecution by the New South Wales authorities for those offences for which his extradition was granted.4. I say that subsequent to being retained by [AB], he disclosed to me that he had committed a number of other counts of sexual assault involving other persons.5. I say that at the time of receiving those instructions relating to the other counts, [AB] made it quite clear to me, that he was desirous of disclosing these matters to the investigating police and prosecuting authorities....7. I say that I disclosed to both Detective Sergeant [Magann] and Miss Pheils the nature of my instructions.8. As a result of those discussions I am informed and verily believe that Detective Sergeant W J [Magann] attended the Long Bay Gaol Complex on Saturday 25th May 1996 and at that time [AB] disclosed to Detective Sergeant [Magann] a number of other offences and further that my client then participated in an electronically recorded interview.9. I say that at the various times that I attended upon [AB] in respect of the issue of the disclosures of these additional offences, I gave advice to [AB] that in respect of any offences which occurred in the State of New South Wales, that he would in all likelihood be charged with those offences, and further that these additional charges would be likely in all the circumstances of the case to be such that a Judge may sentence [AB] to a lengthier term of imprisonment.10. I disclosed that notwithstanding the advice that I gave to [AB] it has been his most adamant instructions to me that he wished to disclose these matters to the investigating police and prosecuting authorities and have all of these matters taken into account by the sentencing Judge.11. I am aware from the discussions that I have had with Miss Pheils that the authorities in the United States of America have sought this Affidavit from me, and I have executed same on the basis that I am informed that it will be forwarded to the authorities in the United States of America in relation to the additional charges in respect of which [AB] now wishes to plead also guilty."Neither waiver nor co-operation in obtaining consent to prosecution was an issue before the judge The evidence does not disclose what documents were sent to the United States. However, the Document of Consent makes it clear that documents accompanied the Embassy's note dated 17 October 1996. Probably, they contained the evidence relied on to support the 39 charges and would have included a transcript of the appellant's electronically recorded confession. The last paragraph of Mr Walsh's affidavit indicates that, after receiving the Embassy note and documents, the United States government wanted confirmation from him that the appellant wanted to plead guilty to the post-extradition charges and realised the consequences of doing so. The evidence does not disclose whether the United States government would have given its consent without this affidavit being forwarded to them. Nor does the evidence disclose whether Mr Walsh prepared this affidavit at the specific request of the appellant or under his general authority to act on the appellant's behalf and ensure that all offences were dealt with at the one time. Indeed, the evidence does not reveal whether the appellant was even aware that the consent of the United States government was required before he could be prosecuted on the additional 39 charges.