AB v The Queen

[1998] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S115 of 1997

B e t w e e n -

AB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 11.54 AM

Copyright in the High Court of Australia

MR C.A. PORTER, QC:   In this matter, if your Honours please, I appear for the applicant with my learned friend, MR P. BYRNE, SC.  (instructed by Greg Walsh & Co)

MR G.S. HOSKING, SC:   If the Court pleases, I appear for the respondent.  (instructed by the Office of the Director of Public Prosecutions)

GUMMOW J:   You need an extension of time, do you not, Mr Porter?

MR PORTER:   I do need an extension of time, if your Honour pleases.  There is an affidavit saying why.  It is a pro bono matter and there were some difficulties in arranging the necessary papers because the applicant was, in effect, penniless.  I do not think the Crown has suffered any ‑ ‑ ‑

McHUGH J:   Any objections?

MR HOSKING:   No, the Crown does not object to it, your Honour.

McHUGH J:   Leave is granted.

MR PORTER:   It is well appreciated that an application for special leave in a sentence matter has to have something special about it.  There are a number of ways in which this sentence can be criticised.  I propose to deal with two only which we say are special leave matters.  The first is that this man, of 67 charges, 39 were voluntarily confessed by him, for which he received, in our submission, no allowance whatever, expressly in the Court of Criminal Appeal and by implication at first instance ‑ ‑ ‑

McHUGH J:   But was not the view taken that perhaps he saw the writing on the wall and ‑ ‑ ‑

MR PORTER:   That is precisely so, if your Honour pleases, but this was, with great respect to Mr Justice Sperling, a serious error on his part and a grave injustice to the applicant because what happened was this:  he was extradited, if I may say so, kicking and screaming, if one likes, from the United States over 28 charges.  Now, of course, he could not be charged with any other offences without considerable proceedings under the extradition procedures between the United States and Australia.  What in fact happened was he came to Australia and then went ‑ ‑ ‑

GUMMOW J:   Did Justice Sperling advert to that aspect of the extradition ‑ ‑ ‑

MR PORTER:   No, not at all.  He adverted to the fact that the man resisted extradition without ‑ ‑ ‑

GUMMOW J:   But there is a speciality requirement ‑ ‑ ‑

MR PORTER:   That is right, he obviously overlooked it.  And the other thing, of course, he did not advert to is the fact that the trial judge had found that these offences were unlikely to have come to light but for the confession and the trial judge found that on the evidence of the police officer.

McHUGH J:   Was that all of them were unlikely to come to light?

MR PORTER:   The 39.  See, these were offences committed between 1976 to 1987 and there was no offence since – by the time he was arrested – there were some sort of problems before he left on 18 August 1989.  He was arrested on the – obviously some inquiries had been made and he decided to leave the country.  The police never pursued them.  He was arrested on 15 August 1995 and then he was arrested, as I say, on 28 charges.  He resisted extradition in the United States until 26 April 1996.  He had been in custody and then he was sent to Australia.  Now, to suggest that it was inevitable that the offences that he had committed 10 to 20 years before, the earliest ones, would inevitably have come to light, without his confession was, with great respect to Mr Justice Sperling, contrary to human experience in these matters.  It does occasionally happen that the publicity of this type of offence brings out further offences, but not 39 and not so long ago.

Be that as it may, if your Honours please, there was clear evidence given by the police officer, at page 31, that he was “completely co‑operative” and that but for his voluntary confession, these offences were unlikely to come to light and his Honour so found.

KIRBY J:   But let me understand.  Even if they had come to light or some of them ‑ ‑ ‑

MR PORTER:   But even if they had come to light, you would have had to get the permission of the United States’ Government, in effect, to prosecute them.  He is only extradited for the – you can only charge him with the offences on the extradition warrant.  But the point was that when he came back to Australia, he in effect went through a gigantic penitence, is the only one way of describing of.  He said, right, I will confess everything.  His solicitor said to him, “They can’t charge you with these offences.”  “I don’t care.” 

So he waived his right of silence and he waived his extradition privileges.  In those circumstances, for Mr Justice Sperling to say, “Oh well, at least 39, they would have come to light anyhow”, was a grave injustice to the man, we would say, but furthermore, apart from the question of injustice, from a special leave point of view, this case is now – because it naturally achieved a lot of prominence – this case is now a red flag on the hill to say to everyone who is minded to make a clean breast of unknown offences, “Don’t.  You’ll get no credit for it.  You’ll be savagely punished for it.”  Because that is in fact what has happened.  This is a case where the severity of the law, the severity of the sentence, is counter-productive.

KIRBY J:   You said you had two points.  I think you have made that point as sufficiently as you can.

MR PORTER:   The second point is one that I first remember reading about by Justice Oliver Wendell Holmes, he made the point many years ago and I tried to find it in his book on common law, but the point is simple enough.  If you give a sex offender a punishment equivalent to the punishment for murder, you are in effect encouraging such offenders to commit murder.  The law has always had this clear distinction.  You do not give an armed hold‑up man who does not discharge his weapon the same penalty as for murder, no matter how many armed hold‑ups he does, otherwise you are in effect saying to him, you may as well be hung for a sheep as for a lamb.

KIRBY J:   That might be a good argument against what the trial judge did and said, but when Justice Sperling dealt with it he simply said, well, you really cannot compare unlike with like.

MR PORTER:   Your Honour, I am not taking that point.  I am not going into the question, which is a philosophical ‑ ‑ ‑

KIRBY J:   You are saying the net result, the actual sentence when looked at objectively, is the sort of sentence that would be imposed for murder.

MR PORTER:   Yes, and assume for the sake of argument you have a rape that is a very bad rape – there is a very bad rape and you are inclined to give a sentence such as murder.  If you do, you are saying to the next rapist, well, why not murder the victim?  You will be no worse off and less chance of detection.

McHUGH J:   The practicalities are that in a case like this, if this applicant had murdered one of the victims or more than one of the victims, he would not have got 18 years.  His effective sentence might have been 30 or 40 years.

KIRBY J:   In any case, the appellant was not a murderer.

MR PORTER:   Firstly, if I may answer your Honour Justice McHugh first and the Justice Kirby secondly.  Your Honour, criminals do not make such a fine and logical distinction as your Honour’s correct and logical distinction was.

McHUGH J:   Sometimes they do.

MR PORTER:   Sometimes they do, but ‑ ‑ ‑

McHUGH J:   You will remember the safe breakers in this State when they got heavy sentences, moved out of safe breaking into other forms of crime such as shoplifting.

MR PORTER:   I also remember, if your Honour pleases, when I first started at the Bar armed hold‑up was almost unknown.  Armed hold‑up came in long before drugs, long before drugs; little old ladies were walking to banks with a glass of water saying, “This is acid and I’ll throw it in your face.”  The sentences imposed were quite extraordinary.  I remember one of the first ones I appeared for, 10 years for a young bank teller who tried it, first offender.  The sentences went up and up and up, and so did the rate of armed hold‑up and, your Honour, those who subscribe to the theory that heavy penalties – I would suggest that a better theory is the theory of Professor Radzinowicz, that the real deterrent is ‑ ‑ ‑

McHUGH J:   The best evidence in favour of your point on this is at the time of the public hangings, when pickpockets were being hung publicly, their mates were down in the crowd picking the pockets of those watching the public hangings.

MR PORTER:   That is right.  There was a time when, if you drove ‑ ‑ ‑

McHUGH J:   I think we had better get on to something more relevant.  This is a very important case from this man’s point of view.

MR PORTER:   I am simply saying, if your Honour pleases, that the real deterrent in most cases is certainty of detection rather than the heaviness of their penalty and that although we have gone in for a lot of retributive justice in recent years, it by no means follows that has been effective.  But when you take the punishment to such an extent that you are in effect giving a punishment to a person equivalent to murder, and that punishment is widely published, then you are saying to many sex offenders, I am going to

get a sentence pretty much the same as murder anyhow, I will kill my victim and avoid detection. 

I mean, it is well illustrated by an amendment to the Crimes Act my learned junior was reminding me about that came after the famous Graham Thorn and Stephen Bradley case where they increased the penalty for kidnapping, 20 years, but 14 years if the victim was returned unharmed.  That is a legislated expression of the logic of what I have been putting, that in this particular case, I am not concerned with whether the cumulative guilt of the man who commits many sex offences is equivalent to that of murder or not, I am not concerned with that point.  What I am concerned with, if your Honours please, is the question that the effect of the sentence is to encourage people who commit sex offences to say, well look, there is no difference now between sex offences and murder, I may as well murder as well.  That is the second point.

There are a number of other matters in the sentence which would be argued on the full appeal, but they are the two special leave points, and particularly the first one.  I have made them rather quickly, your Honour, but I do not think there is much more I can add to them.

McHUGH J:   Yes, Mr Hosking.

MR HOSKING:   May it please your Honours, I will try and be equally brief.  No one would gainsay the proposition that this man was given a severe sentence.  The Court of Criminal Appeal did not ‑ ‑ ‑

GUMMOW J:   Do you dispute what Mr Porter says about the waiver of extradition privilege?

MR HOSKING:   No, I do not, your Honours, and your Honours will see nothing of it in our written submissions.

GUMMOW J:   Because it does seem a significant matter.

MR HOSKING:   It is a significant matter.  The reason why we have said nothing about it thus far is that we did not understand that the point was to be made.  I am not being critical of our learned friends in that, but that is ‑ ‑ ‑

McHUGH J:   It is not in the written submissions.

MR HOSKING:   No, it is not in the written submissions.  Your Honours, all I can say about the waiver of specialty point is that – this is not a complete answer to the point, but it may have been that waiver of specialty would have been granted even over the applicant’s objection.  There is not much more I can say about it than that.

Do your Honours wish to hear me on the murder point?

KIRBY J:   I think, as you are on your feet, we may as well get it on the record.

MR HOSKING:   Your Honours, my submissions about that point are these:  as has already been observed, their Honours in the Court of Criminal Appeal said that one could not – it was not a proper comparison to compare these offences to murder because one is not comparing like to like.  When my learned friend says, though, your Honours, that this man was sentenced to a higher sentence than he would have got if he had murdered somebody, your Honours would not overlook the facts, in my submission, as the Court of Criminal Appeal did not overlook the facts, that there were 67 counts involving, I think – I cannot remember the precise numbers of children, your Honours ‑ ‑ ‑

KIRBY J:   Fifteen.

MR HOSKING:   Fifteen, thank you, and young children only 9 to 11.

McHUGH J:   Is this the heaviest sentence given, as far as you know, for this class of offence?

MR HOSKING:   Your Honour will recall that in the Court of Criminal Appeal they looked, in particular, at two other sentences, one is Victoria – I would concede, your Honour, it must be one of the highest.  It must be one of the highest.

KIRBY J:   Is there any notion in sentencing that is similar to the notions that inform the way in which you deal with concurrent sentences, that if in fact the accused’s conduct, though it involves many victims, is in a sense coming from the one criminality and is involved in his expression, in a way that is illegal, of criminal conduct that affects multiple victims but is nonetheless coming from the one source, that that is a matter proper to be taken into account in looking at the matter in totality?

MR HOSKING:   May I answer your Honour this way.  If there is not such a proposition and a principle, there should be, in my submission.

KIRBY J:   I wonder if, in this case, that was not taken into account, because on the face of it, the total sentence is a crushing sentence.  It really does not take into account, I think, the fact that the man was working out, in

a way that is illegal and unacceptable, really the sexual drive that was suppressed by reason of his situation.

MR HOSKING:   Your Honours, as I remember reading the Court of Criminal Appeal judgment and the judgment and the remarks of the sentencing judge, totality was at least purportedly taken into account.  Whether your Honours think that it was really taken into account to a sufficient degree is not a matter that I can assist your Honours very much on, I do not think.  It was certainly taken into account, the concept was taken into account.

KIRBY J:   It is enough, is it not, if the extradition point is a special leave point, that the matter then comes up and then the entirety of the sentence and the issues raised by it are looked at and, as I understand it from matters I have seen in the public press, this is now a very significant part of the work of the criminal courts in Australia.

MR HOSKING:   Yes, that is true, your Honour.

KIRBY J:   If you have the foothold, then that is enough to get the whole issue before the Court.

MR HOSKING:   I do not know that there is any other submission I can usefully make, your Honours.

McHUGH J:   Thank you, Mr Hosking.

There will be a grant of special leave in this case.  Mr Porter, you will need to be ready to deal in detail with what the extradition regime was so that one can make the relevant comparison.

KIRBY J:   It will be left to being a pleasant surprise on the day of the hearing.

MR PORTER:   As I understand it, if your Honours please, this is one of the problems about the appeal papers and special leave applications.  I understand all this was before the trial judge.  It is in the transcript ‑ ‑ ‑

McHUGH J:   Yes, but I think what Justice Kirby is referring to is the fact that this point was not mentioned in the special leave application.  Speaking only for myself, I think you may have been in serious difficulties if you had to rely on the matter in the application.  This is your special leave point, I think.

MR PORTER:   If your Honour pleases.

KIRBY J:   We have to have a principle, Mr Porter.

McHUGH J:   The Court will now adjourn to reconstitute.

AT 12.13 PM THE MATTER WAS CONCLUDED