Bailey v The Queen

[1988] HCATrans 207

HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1988

B e t w e e n -

KENNETH WILLIAM BAILEY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

Bailey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 SEPTEMBER 1988, AT 10.18 AM

Copyright in the High Court of Australia

C2T 2/ 1 /VH 1 13/9/88

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MR T.L. BUDDIN, for the applicant.

(instructed by J. Cooke, Director, Legal Aid Commission)

MR R.O. BLANCH, QC:  May it please the Court, I appear with my

learned friend, MR E.G. BERMAN, for the Crown.

(instructed bv S. E. 0' Connor, Solicitor for Public Prosecution.

MASON CJ:	Mr Hidden.
MR HIDDEN:	May it please the Court.  Your Honours, might we

hand up an outline of argument.

MASON CJ: Thank you. Yes.

MR HIDDEN: If the Court pleases. Your Honours, this is an

application for special leave to appeal against an

order of the New South Wales Court of Criminal Appeal

dismissing the applicant's appeal against sentences

imposed him in respect of a series of offences. Your Honours, before a district court judge on 2 May 1986, the applicant pleaded guilty to a charge

detaining with intent to carnally know a young lady;

three counts of sexual intercourse without consent;

an escape from lawful custody and a charge of breaking,

entering and stealing.

The detaining offence is laid under section 89

of the New South Wales CRIMES ACT, carrying a maximum

sentence of 14 years' penal servitude. The sexual

intercourse without consent offences are laid under section 61D of the Act, carrying a maximum sentence

of seven years' penal servitude. The escape was

a common law misdemeanour with no prescribed maximum
and the break, enter and steal offence laid under
section 112 of the '::RIMES ACT, carrying a maximum

almost certainly would have been dealt with

sentence of 14 years, although we pause to remind and

summarily, in which case a magistrate would have had

available to him a maximum simtence of 12 m::mths inprisonrrEn.t.

(Continued on page 3)

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Bailey

MR HIDDEN (continuing):  Now, Your Honours, the facts of the

matter sufficiently appear in the judgment of the

Court of Criminal Appeal but it is perhaps necessary,

shortly, to recount the history of the matter with

which Your Honours may be familiar. The applicant

originally appealed in 1986. His appeal came on

for hearing in March of 1987 before the Court of

Criminal Appeal, before a bench comprising the

Chief Justice Sir Laurence Street, the president

of the Court of Appeal, Mr Justice Kirby and the

Chief Judge at common law, Mr Justice Slattery.

That court reserved its decision and on

11 September 1987 the majority of the court refused

leave to appeal, leave being required in New South

Wales to appeal against sentence. Mr Justice Kirby

dissented and he would have reduced the non-parole
period. That decision was the subject of an application

to this Court in which judgment was delivered on

3 May 1988. Special leave was allowed; the appeal
was allowed and the matter was remitted to the
Court of Criminal Appeal for further consideration.

The court then gave its judgment on 3 June 1988

affirming the sentences and non-parole period fixed

by the district court judge.

Your Honours, the sentences were these.

detaining with intent carnally to know, two and a half
penal servitude; on the three counts of sexual
intercourse without consent, five years penal
servitude on each to be served concurrently amongst

On the

themselves but cumulatively upon the two and-a -half

years. On the escape from lawful custody, 12 months

imprisonment concurrent, and on the break enter and

steal, 12 months imprisonment concurrent, thereby

a total head sentence of seven-and a half years to

date from 26 August 1985, the date when the
applicant was taken into custody,and a non-parole

period of four and -a -half years was fixed to date

from the same date.

When the matter came back to the Court of Criminal

Appeal in June of this year it was before a

differently constituted bench comprised of

Mr Justice Lee, Mr Justice Maxwell and Mr Justice Yeldham.

(Continued on page 4)

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MR HIDDEN (continuing):  Your Honours, the facts sufficiently

appear in the judgment of the Court of Criminal

Appeal commencing at page 73 of the application

book, although they are set out in somewhat more

detail in the remarks on sentence of His Honour

Judge Badgery-Parker, the primary judge, commencing

at page 24 of the application book. Would

it assist Your Honours for me to recount the facts,

or may we take it Your Honours are sufficiently

familiar with them?

MASON CJ:	Yes, we are, Mr Hidden.
MR HIDDEN:	Thank you, Your Honours. Perhaps it is best

in that case, Your Honours, to turn to the remarks

on sentence of His Honour, commencing at page 24.

Shortly, Your Honours, the applicant,with a man named

Geal~ met another man and two ladies at a tavern

in Sydney. The group repaired to Kings Cross and

finally the applicant and Geale offered a lift home

to one of the girls, the girl named Kim. They,

in fact, drove her nowhere near her home and

entirely in the wrong direction and eventually

His Honour, the applicant got into the

stopped at a place in the western suburbs of sentence of

rear seat, commenced to fondle the girl's bre$ts

and compelled her to fellate him.

It was the detention after a certain point

when the girl asked to be either taken home or
let out of the car that constituted the first count
and the fellatio constituted the first count of

sexual intercourse without consent against the

applicant because the term "sexual intercourse"

is broadly defined in the CRIMES ACT and encompasses

that sexual activity. She got out of the car and

started to run away but the man Geale grabbed her

and forced her back to the car. He then drove

further along the dirt road where they were and said,

"It's my turn".	He attempted to have intercourse
with her but was unable to achieve an erection and

compelled her to masturbate him which led to a
charge of indecent assault against him.

He then got out of the car and this applicant

got into the car and had conventional intercourse

with her, being the second count of sexual

intercourse without consent against him.

(Continued on page 5)

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:MR HIDDEN (continuing): Geale drove further up the track

and he, Geale, succeeded in conventional

intercourse with the girl, being a count of

sexual intercourse without consent against him.

And finally, this applicant had a further act

of intercourse with the girl, being the third

count of sexual intercourse without consent

against him. Finally, Your Honours, the girl

was able to escape.

Your Honours, the applicant was arrested

on the next day, the events occurring between

24 August and 25 August 1985. The applicant

was arrested on the next day, 26 August and

soon after his arrest he escaped from police

custody by an assault on a police officer

who was holding him. He was recaptured a few

minutes later, and that gave rise to the collllllon

law offence of escape from lawful custody.

Your Honours, His Honour shortly recounted

the facts of the break,enter and steal offence

at page 28 of the application book. That was

an old offence, having occurred on 15 September 1983

and involved the applicant together with an

accomplice breaking into the kitchen of a motel

and stealing some foodstuffs, the value of which

was estimated at about $20, I think, Your Honours.

Your Honours, staying, if we may, with the

remarks on sentence of the learned primary judge,

which we would submit are of some significance,

His Honour, at page 28 of the application book

went on to consider the subjective material.	The
applicant was then 25 years of age.	As His Honour
said:

He has a very bad criminal record which

goes back to Childrens Court offences

of dishonesty, offences against property

at the age of only about ten or eleven years.

But His Honour noted that there was nothing on

his record of a sexual assault nature.

Your Honours, the applicant's record is

in fact set out in the application book, collllllencing

at page 7 and we do submit, Your Honours, that while

it is lengthy, a careful examination discloses
that the lion's share of the entries are for minor
or relatively minor matters when one looks at the

nature of the offences and the penalties imposed.

(Continued on page 6)

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MR HIDDEN (continuing): A little less than half of it

appear to be entries in the children's court

until one comes to Fairfield Petty Sessions on

2 May 1978.	The offences are mainly offences
of dishonesty and driving matters.	On three

occasions in children's court the applicant was

committed to an institution. In August 1979,

he was sentenced to six months' hard labour in

respect of a stealing motor vehicle offence

but, more significantly, Your Honours, in

March 1985 he was sentenced to terms of

imprisonment of 18 months and 12 months in respect

of breaking, entering and stealing offences,

receiving and escaping lawful custody.

And as His Honour observed, the applicant

had been released only a matter of days from

those sentences when these offences were committed.

His Honour then goes on at page 28 of the

application book to refer to the applicant's

prior abuse of drugs and alcohol, to the death

of his younger brother in 1980, which apparently

considerably distressed the applicant,and to

the observations of a psychologist named

Marianne Plahn whose report, Your Honours, seems

to have gone missing at some earlier stage.

It was never before the Court of Criminal Appeal

and is not in the application book but an extract

of it is there set out suggesting a personality

disorder, a degree of lack of self-confidence

and a tendency to set standards which he is unable

to meet.

And His Honour took that personality disorder into account as in some way explaining his

behaviour. His Honour referred to the applicant
having displayed a degree of contrition by his
plea of guilty before His Honour, the pleas of

guilty being entered only in the district court,

it is conceded.	And His Honour then referred
to some prospect of rehabilitation which arose,

I think, as much as anything else, Your Honours,

from the antecedent report of the police officer
appearing at page 6 of the application book which

revealed that since January 1986 the applicant

had apparently given away his use of heroin.

(Continued on page 7)

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MR HIDDEN:  We pause to observe this, in our respectful

submission, on the material before His Honour
the sentences were entirely appropriate as was

the non-parole period. Sentences of five years

were imposed on each of the sexual intercourse

offences against a statutory maximum of seven

years. Those sentences were made concurrent,

and we would submit that is entirely in accordance

with normal sentencing practice given that they
were events closely related in time and part

of a continuing incident.

His Honour saw fit to accumulate two and

a half years in respect of the detaining, even though, I suppose, logically, His Honour could

have made that sentence also concurrent. Indeed,

in relation to that offence, His Honour, at page 26

of the application book in the first complete

paragraph, made some observations about it, referring

to it as the "abduction". He said:

I certainly accede to the view that it does

not, in all the circumstances of this case,

attract a sentence as heavy as that called

for by the sexual assaults -

and His Honour went on to say that:

the abduction does, in my view, add significantly to the totality of the

criminality -

and His Honour reflected that by the accumulation

of the two and a half year sentence.

DAWSON J:	He is still in prison, is he?
MR HIDDEN:	Yes, he is.
DAWSON J:	Upon my arithmetic, with remissions, he would

have almost completed his sentence, if not completed

it.

MR HIDDEN:	I can inform Your Honours of this, that the non-parole period, according to the department's
calculations, expires by remission on 18 January
next year.

The calculations involved, Your Honour,

are, frankly, somewhat Byzantine and we are -

DAWSON J:  I was simplistic. I just took a third off four and

a half years which reduces it to three years.

If the non-parole period started on 26 August 1985,

that three years has now expired.	I must be
wrong.

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Bailey

MR HIDDEN:  Your Honour, the system in New South Wales was,

until recently, that when one had served a previous

term of any significance, the automatic remission

is a quarter only and that appears to be how

his remissions were calculated, although there

was a change in the system about the middle of

last year which one would have thought might

have entitled him to a little more remission,

but, on the calculations he has not had the benefit

of that.

DAWSON J:  Thank you.

(Continued on page 9)

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Bailey

MR HIDDEN (continuing): Now, Your Honours, further, the

concurrence of sentence on the escape, we would submit, was entirely appropriate, given that it

arose out of the same state of affairs, and the

concurrent sentence on the break, enter and steal

eas entirely appropriate given the age of the

matter - it was an offence occuring some years

before and the fact that it was, with respect,

a minor matter of its class. Now, against that

aggregate head sentence of seven and a half years

His Honour fixed, we would submit, an entirely

appropriate and proportionate non-parole period

of four and a half years.

Now, Your Honours, before the Court of Criminal

Appeal there was a body of fresh evidence and the

appeal was brought on the basis only of fresh
evidence. There was no error suggested in the

sentence of the learned primary judge on the material

before him and, of course, nor was there by the Crown,

and, in particular, there was no appeal by the Crown

against the inadequacy of those senten::es or non-parole

period.	Now, Your Honours, shortly, unless
Your Honours wish to be taken in any	detail to

the fresh material, it is sufficient to say that there

was before the Court of Criminal Appeal an affidavit

of the applicant, appearing at page 33 of the application

book, simply disclosing that after sentence a test

for AIDS came back antibodies positive. There was

a letter from the Reverend Reg Clark, the Anglican

chaplain of the prison at page 35.

TOOHEY J:  Mr Hidden, why do you describe that affidavit as

fresh evidence?

MR HIDDEN: Well, Your Honour, because the affidavit discloses

that the applicant, before sentence was passed,
considered the possibility or considered the danger
of AIDS, because he had been sharing needles and

underwent a test not expecting it to prov~ .·positive.

The positive result did not come until after sentence

was passed and, in the meantime, the applicant had

not disclosed this to his legal advisers.

TOOHEY J: Yes, thank you.

MR HIDDEN:  Your Honours, there was a statement of the Anglican

chaplain concerning the applicant's change of

attitude in the light his situation - - -

DEANE J: Mr Hidden, what is the legislative scheme - I do not

want you to go to it, just tell me - in relation to

rape in New South Wales now?

(Continued on page 10)

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MR HIDDEN: 

Well, Your Honour, the common law offence of rape

has been abolished and replaced by a statutory
scheme in which sexual intercourse is broadly

defined to include just about any form of penetration.

DEANE J: 

I was more concerned with the different penalties?

MR HIDDEN:  Yes. Your Honours, section 61D provides for

sexual intercourse in a broad sense without consent

with a maximum sentence of seven years. Section 61C

provides for a similar offence where actual bodily

harm is caused or threatening actual bodily harm

within intent to have sexual intercourse. That

carries 12 years. Section 61B provides a similar

offence to section 61C where grievous bodily harm

is involved and that carries a maximum term of

20 years. Finally, Your Honours, section 61E, which

is in effect the old offence of indecent assault,

carries a maximum - I will be precise about this,

Your Honours - of four years where there is an

element of assault, Your Honours, there being a

higher penalty where the girl is under age, and

two years where there is an act of indecency not

accompanied by any assault.

DEANE J:  So, in effect, the thing that brings this down is

non-violent?

MR HIDDEN:  Yes, Your Honour, that is so. Indeed, Hi.a Honour observed

that there was happily no violence other than that
necessarily attendant upon forced sexual intercourse.

Now, Your Honours, there was also appearing at pages 36 and 37 of the application book a report

of Ms Sharen Dunsmore, drug and alcohol counsellor,

as to her dealings with the applicant since his

finding that he had contracted AIDS, or was

antibodies positive. There was, at pages 38 to 41

of the application book, a report of a senior
prison officer, Mr C.J. Moonen, relating to the

conditions under which the applicant ,was held in

custody, it having been discovered that he was

antibodies positive.

(Continued on page 11)

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MR HIDDEN (continuing):  There were two reports of

Dr Frank McLeod of the prison medical service

appearing at pages 42, 43, 44 and 45 of the

application book, disclosing that at that stage

in April 1986 the applicant was found to be AIDS

antibodies positive and was at stage C of the

development of the disease, and Dr McLeod's

second report sets out the three categories,

C, Band A.

Your Honours, that basically was the material

which was before the Court of Criminal Appeal on the

first occasion. When the matter was remitted there

was some further material placed before the court.

At page 60 of the application book a report of Dr Phillip Jones of the Prince Henry Hospital,

the effect of which appears to be that by
February of 1987 the applicant had regressed

to category B of the disease, and I think the doctor

estimated a 15 per cent to 20 per cent likelihood within the

next five years- of his developing the full-blown

disease which is almost certainly fatal.

There was then a fairly lengthy report,

Your Honours, commencing at page 61 of the application book of a psychiatrist, Dr Yolande

Lucire, concerning the conditions of custody of the applicant and his own response to them.

Your Honours, without going to that material in any

detail we would submit that it established this:

first of all that the applicant was suffering from

AIDS in some form and had, during the relevant

period up to the time that the matter came back before the Court of Criminal Appeal, progressed

from category C to category B of the disease; that

his being antibodies positive necessitated his

being confined in a small unit at Long Bay known as the Malabar Assessment Unit; that confinement in that unit necessarily caused stress to all those

there, and in particular to this applicant, and
that that stress tended to exascerbate the progress

of the disease, and concomitant to the nature of

his confinement there were a number of

disadvantages.

I pause to remark, Your Honours, that by

September 1987 the Malabar Assessment Unit had

been moved from its original premises to part of the

new prison hospital and was physically somewhat more

palatable than the old one had been, but was none

the less still a form of segregation not normal

in the prison,	and the effect of that confinement
was just that, Your Honours;	firstly, that it was

virtually a form of segregation of a group of

prisoners from the rest of the prison population,

those prisoners, as a result, really had no contact

with the rest of the prison population and had to be

content with the company of each other, whereas in

C2Tl0/l/HS	13/9/88
Bailey

the ordinary prison population there was some
prospect of choosing your associates, provisions
for exercise are limited because of the nature of
the unit, even after it moved, but most importantly,

Your Honours, perhaps, confinement at the unit

necessarily meant no progress through the prison

system. Once in the unit, there you stay until

you are released, so that opportunities for

external courses, day release, things of that nature,

are not available, no matter how well behaved you

are, and concomitant with that is the fact that

certain remissions, additional remissions that

might be earned by progress through the system

cannot be earned by prisoners confined in the

unit. I think in short, Your Honours, the

material disclosed those matters relevant to

the question of sentence.

Your Honours, when the matter came back before

the Court of Criminal Appeal in June 1988 we made

two applications before the hearing of the appeal.

(Continued on page 13)

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MR HIDDEN (continuing): Since the matter was before this

Court on the last occasion - I beg Your Honours'

pardon, prior to that. In August 1987, after

the matter was first before the Court of Criminal

Appeal the learned sentencing judge dealt with

the co-offender Geale. Geale had been on remand

for a lengthy period in the We Help Ourselves -

the WHOS drug rehabilitation organization. As

Your Honours might have observed, when His Honour

first dealt with the applicant, he remanded Geale

on what he described as a GRIFFITH's bond, in effect

a trial remand period on bail to monitor his

response to that rehabilitation program. His Honour

had in the meantime sentenced Geale for his part

in this affair, His Honour having expressed the

opinion, when first dealing with the matter, that

Geale and the applicant were of equal culpability.

His Honour sentenced Geale effectively to four

years penal servitude with a non-parole period

of six months.

Now at the time the matter came before the

Court of Criminal Appeal in June of this year,

the only material that was able to be produced
in relation to Geale was a certificate of

conviction, appearing at page 65 of the application

book, setting out the facts of that sentence;

the certificate also suggesting that there might

have been other matters dealt with, but that is

quite unclear. A pre-sentence report, appearing

at page 68 of the book, and Geale's antecedents,

which are undoubtedly far more favourable than

the applicant, appearing at page 70 of the book.

The remarks on sentence of the learned trial judge were not

available at the ti.m: the matter cane back before the

Court of Criminal Appea. and application was made - as is noted at the end of the judgment,

Your Honours, at page 82 of the book - for an

adjournment so that those remarks on sentence

could be obtained, but that application was

application was also made that the court remit	refused. Perhaps more significantly, Your Honours,	the matter to the sentencing judge under its
new-found power conferred by section 12(2) of
of the CRIMINAL APPEAL ACT. Your Honours,
subsection (2) was added to section 12 in
December 1987. It was not a power available
to the Court when this matter was first before it. Section 12(21 provides:

The Court of Criminal Appeal may

remit a matter or issue to a court of
trial for determination and may, in doing
so, give any directions subject to which

determination is to be made.

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Bailey

Now, Your Honours, the Court of Criminal Appeal had earlier in the year taken the view that that

section empowered it to remit to a sentencing judge
the question of sentence when fresh evidence was

tendered in that Court_

Your Honours, in the matter of

REG V NORBURY COLIN McDONALD, decided on

judgment as it has only very recently become

3 March 1988, the court did exactly that.

available itself?

MASON CJ:	Thank you.
MR HIDDEN:	The judgment is extremely brief and I will have

to give Your Honours some anecdotal information

as to what lead to it because it was a matter

in which I appeared.

TOOHEY J: That is anorder, Mr Hidden, that could have

been made in any event, could it not, the

sentence and non-parole period being quashed?

MR HIDDEN:  Do you mean before the enactment of 12(2)?

TOOHEY J: Yes.

(Continued on page 16)

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MR HIDDEN:	Your Honour, I do not believe so.	The CRIMINAL

APPEAL ACT, being a code controlling the operation

of the court~ I think the court's only power

to deal with the sentence appeal was provided

for by section 6 which really required the court

to determine the matter.

TOOHEY J:  Yes, but I really had in mind that the court

here has ordered that the sentence and non-parole

period be quashed but not simply remitted the

matter, as it were, without making any order

themselves.

MR HIDDEN: Yes. In fact, Your Honours, I must confess

I had forgotten that Their Honours actually quashed

the sentence and non-parole period but it was

perhaps not necessary to do that to comply with

section 12(2).

TOOHEY J: It may not have been. My point simply was that

in other circumstance~ this subsection aside,

presumably the court could have quashed the sentence

and remitted the matter to the primary judge

for sentencing.

MR HIDDEN:  Without section 12(2), Your Honour, I believe

not. The point is, Your Honours, McDONALD was a case markedly similar to this. McDONALD had

been sentenced to a substantial term in respect

of a supplying Indian hemp matter and he revealed

the fact, it must be said, Your Honours, after

sentence that he had contracted AIDS and he was

confined in the Malabar Assessment Unit and an

appeal was put on on that basis also and we note,

Your Honours, that in McDONALD's case the court

saw fit, rather than to finally deal with the

matter, to use its new-found power to remit the
matter to the sentencing judge for reconsideration

in the light of the fresh material.

TOOHEY J: Mr Hidden, did the court say anything to indicate

that it was exercising its power pursuant to

section 12(2)?

MR HIDDEN: It did, Your Honour. In fact, I must confess,

Your Honours, I found about subsection (2) in

the course of those proceedings. I, myself,
was not aware of it until, I think, the

Chief Justice pointed it out and indicated; in

argument, that the court was minded to use that

power in McDONALD's case.

TOOHEY J:  Yes, certainly, looking at section 12(2) very

quickly, it seems to be aimed at the remission

of a particular matter for determination by the

court below rather than the remission· of the whole

question of sentencing.

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Bailey

MR HIDDEN:  Yes.

TOOHEY J: It appears under a heading 'tSupplemental powers

of the court)".

MR HIDDEN:  Yes, Your Honour. We must say, Your Honour,

the power conferred by subsection (2) does seem a little more confined than the court exercised

in McDONALD unless, of course, a matter or issue

could include the question of sentence.

Obviously the court was of the view that it could.

TOOHEY J:  I would have thought that was "the" matter rather

than "a" matter.

MR HIDDEN: Yes. If the appeal is against sentence only, • • II h It

then I suppose, Your Honour, 1t 1s t e matter

but, admittedly in McDONALD's case, there had

been a trial and he was sentenced after a finding

of guilt by a jury. None the less the sentence -
the appeal proceedings in McDONALD were against

sentence only; appeal against conviction had

been abandoned. But, Your Honours, certainly

the court was prepared to interpret the subsection

in that way and we would submit, Your Honours,

that it is a subsection of which a beneficial

interpretation is appropriate. And, of course,

there are obvious practical advantages in a

situation where fresh evidence does arise in

having the judge who has seen the matter at first

hand reconsider the matter in the light of the

fresh material. And that is obviously the view

the court took in McDONALD, Your Honours, and we submit it is an appropriate course for the

court to take in this case.

And, of course, we did that in particular,

Your Honours, because the learned primary judge

had since dealt with the co-offender and there

was little material before the Court of Criminal

Appeal relating to the co-offender and our submission

was that a fortiori it was appropriate that the

primary judge, familiar with all the material

at first hand, and in particular familiar with

the manner in which he had dealt with the

co-offender, ought to reconsider this applicant's

case in the light of the fresh material.

(Continued on page 18)

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Bailey

DEANE J:	I follow what you say about the material relating
to the co-offender but what would the primary judge
have at first hand that the Court of Criminal Appeal would not have in this case?
MR HIDDEN:	His reasons for sentence, Your Honour, which the

Court of Criminal Appeal did not have.

DEANE J: His subjective thought processes?

MR HIDDEN:	Yes, Your Honour.
DEANE J:	That would be all, would it?
MR HIDDEN:	One can certainly see from the material before the Court of Criminal Appeal that the co-offender
had to be dealt with more leniently than this
applicant, that was clear. Butbywhat reasoning which there is, we do not know, and the Court of
Criminal Appeal certainly did not know. His Honour would have, and it was our submission that for that very reason it was most appropriate that His Honour
deal, again, with this applicant, in the light of
the fresh material.

Your Honours, turning, if we may, to the

judgment of the Court of Criminal Appeal now appealed

against, the effect of the whole of the fresh

evidence was summarized by the court; pages 76 and 77

of the application book. It is not necessary to
refer further to it, Your Honours, I think we have

already done that.

GAUDRON J:	Could I interrupt you there, Mr Hidden?
MR HIDDEN:	Yes, Your Honour.
GAUDRON J:	Where can I find the effect of earned remissions?

Is that a matter of evidence or a matter of law?

MR HIDDEN:  Your Honours, it is, I hope, in the statement of Mr Moonen. Your Honours, at page 40 of the

application book,at line 12, Mr Moonen says:

The major disadvantage of placement in the

Unit for a prisoner is the complete cancellation of any form of classification

within the prison system. No matter what

classification the prisoner had before

placement in the Unit, whether he was on

remand, sentenced and in maximum security

or in minimum security and already enjoying

day leave he will spend the rest of his time

in the M.A.U. with no progress till the date

of his release.

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Yes, I appreciate what Your Honour was asking.

Your Honours, I do not think I can point to any

material which specifically says that "Thereby

further possible earned remissions are lost."

knowledge that that is so. Certainly there is a

I think I am right about that. I am afraid,

system in New South Wales but I cannot take

Your Honours to the regulations where additional

remissions are ruined simply by the fact of

progress through the classification system, and

more particularly, Your Honours, by undertaking

particular tasks or courses which progress through

the prison system enables you to do it. For example,

doing an external course, as I recall it, earns

certain extra remissions of X days a month.

But I am afraid, Your Honours, we are not equipped

with the regulations relating to that and I do

not believe anything in the evidence specifically

says that.

If we may say so, Your Honours, I think it is

assumed in what Mr Moonen says but he has not

expressed it.

DEANE J:  Mr Hidden, while you are being asked questions,

at page 76 the judgment says, at line 22:

The evidence shows that the appellant has, at

his own request, been segregated.

Now, what I have seen is that he requested a test and consented to being segregated.

MR HIDDEN:  That is so, Your Honour. I think the evidence

of Mr Moonen was, if you request the test you must

undertake to be segregated if it is positive,

which is what the applicant did.

(Continued on page 20)

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DEANE J:	What if somebody who has this test result does not
consent or withdraws his consent? What happens
to him? Does that appear?

MR HIDDEN:  It does not appear, Your Honour, no. But my

understanding of the evidence is no consent, no

test, but what would happen if a prisoner did

consent and underwent the test and then withdrew

his consent, Your Honour, I do not know.

DEANE J:	I mean, if we were involved in the sentencing process
would it not be relevant to know whether a prisoner
was subjectedto this special kind of treatment against
his desires or consent?
MR HIDDEN:	Your Honour, I suppose it would, although we would

submit it sufficient, f©r the purposes of this case,

that this applicant underwent the test and consented

to segregation if it were possible. And, of course,

there is no suggestion, on the evidence, that he then

had to dragged, kicking and screaming, to the Malabar

Assessment Unit. He entered voluntarily but knowing

that that was the course he was committed to if the

test were positive. I can take it no further than

that, Your Honour, I regret.

MASON CJ: Well, the evidence indicates that, in his own

interests, it would be advisable to make that decision,

in any event.

MR HIDDEN: Well, that is indeed so, Your Honour, yes, yes.

The evidence indicates that the applicant would have

been in fear of - - -

MASON CJ: There is an element of safety involved.

MR HIDDEN:  Oh yes, and that it obviously a fair part of the

reason for the segregation, Your Honours, apart from

other dangers obviously inherent in having

AIDS-affected prisoners in the population. Now,

Your Honours, returning to the judgment of the

evidence and the effect of the evidence, Their Honours	Court of Criminal Appeal, having recounted the	turned to the relevant law, at the bottom of page 78
of the application book, and pages 79 and 80.
Their Honours refer to REG V SMITH, the South Australian case to which I do not think we need specifically
turn, Your Honours. SMITH itself received the approval
of this Court when this applicant was last before this
Court. SMITH was the AIDS case in South Australia where
the learned Chief Justice, Mr Justice King, enunciated the principles, the well-known principles, relating to the relevance of illness to sentence and, in particular, the relevance of illness to sentence where the illness complicates the conditions of custody, or
renders them more burdensome. Smith, Your Honours
might recall, received a substantial reduction of his

C2Tl4/l/VH	20	13/9/88
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non-parole period in the light of his physical
condition and, at page 79 the Court, having referred

to SMITH, said this - or Mr Justice Lee, giving the

leading judgment said this at line 5:

In my opinion in a case such as the present

where it is clear that the disease with
which the appellant is now suffering, was

in fact, in existence at the time he was

sentenced, it is proper for this Court to allow evidence that effect to be given on the appeal and to reopen the matter of the

proper sentence to be imposed. It has, for a long period of time, been the practice in

this Court to take into account circumstances

which make the incarceration of the prisoner

more burdensome upon him than would be the

case of the ordinary gaol inmate.

His Honour, a little later, refers with approval to

Mr Justice King's remarks in SMITH and to that-court's

own decision in VACHELIC and, as a result, leave to

appeal was granted and His Honour took the view that

the court should then consider the whole of the material

and determine what was the appropriate sentence to be

passed.

(Continued on page 22)

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MR HIDDEN· (continuing):  On the same page, page 80,

Your Honours, at line 8, His Honour said:

The question in every case in which health

is raised as a factor bearing upon sentence

is, of course, the extent to which it should

be taken into account and that is a matter
to be weighed along with all the other matters

which are always relevant on the question

of sentence - the seriousness of the offence,
the prisoners record, any circumstances

which suggest that leniency might be given

such as age, contrition and so on.

We would submit, Your Honours, that it is clear from those passages in the judgment, commencing at page 76 where His Honour considered the new

evidence and considered the relevant law, that
the court was of the view that the new evidence

was of significance, not only admissible but

of significance. For example, page 78 at line 20,

Mr Justice Lee said:

General integration has not yet been achieved but the lot of the AIDS sufferers has been

improved to some extent and one might assume

that, prison authorities will continue to

make AIDS sufferers as comfortable as can

be done in a prison environment although,

inevitably, it is apparent that their lot
is different and more stressful than would

be the case if they did not have this disease.

Of course, it is clear, Your Honours, that the

whole of the fresh evidence before the court,
having been admitted, was not contested and was

accepted by the court.

DEANE J: 

But it is very hard to say what the effect of

that is, is it not, in that if one puts aside

who are, apparently at least for a time, in the	the two extraordinarily unpleasant individuals
unit, from an outsider's point of view	it is

not apparent tome that the disadvantages in

terms of actual conditions necessarily outweigh

the advantages? I mean, a situation where you

can prepare your own food and so on, I would
have thought would have considerable advantages

in terms of terms of incarceration?

MR HIDDEN: 

Yes, Your Honour, but we can only submit,

Your Honour, that the effect of Mr Moonen's statement is that the disadvantages outweigh them. As

Your Honours can well imagine, for a prisoner

to have a limit of the choice of associates

is a severe disadvantage. For a prisoner to

C2T15/1 /SDL	22	13/9/88
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have limited opportunity for exercise and limited

space in which to do so is a severe disadvantage
but, in particular, for a prisoner to be in a
particular part of a gaol and have nowhere to

go, as the evidence suggests, is the case at

present. Nowhere to go in the sense of no prospect

of progress through the system is a very severe

disadvantage, we would submit, Your Honour, quite
apart from the fact of the disease and the possible

implications of it for the man's health and life

expectancy.

DEANE J:  I was not referring to that.

MR HIDDEN:  Yes, I appreciate that, Your Honour.

(Continued on page 24)

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MR HIDDEN	(continuing):	Perhap~ Your Honours, on that

might we take	you to page 62 of the application
book, part of	the report of Dr Yolande Lucire.
Commencing at	line 23:

occupied by the prison hospital -

In September 1987 the Malabar Assessment

I am sorry, Your Honours, it was the old prison

hospital -

I understand there are individual cells

for about nine people and I am aware that

the courtyard garden is larger. It is

only in recent months that a time slot has been reserved when these prisoners can use

the jail's recreation ground for much

needed exercise. Prisoners have told me

that this use is not guaranteed and is

dependent upon the availability of

officers willing to supervise. The AIDS

unit is staffed by officers who have

volunteered to do this work. My

impression has been that custodial care

is humane.

Prisoners are segregated largely because of
fears for their safety from other prisoners.

They are pariahs of the prison, they have

very low status, as low as the status of

pederasts and informers. It is said that
segregation is largely for their own

protection but segregation is also used

for the convenience of the staff when they

are in short supply.

At line 15 the doctor observes:

The conditions in the segregation unit

I am sorry, Your Honours, just going on, the are uninviting and arduous.

second-last line on the page:

As a result prisoners do not walk outside

of this unit without a safe escort from

a prison officer. It is common knowledge

who is in the unit and who is not.

The doctor goes on to refer to the fact that
the people in the AIDS unit are not a homogeneous

group, but they have no choice outside that group

as to their associates. There is then the reference,

to which Your Honour Justice Deane referred, to

the two psychopathic prisoners.

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Of course, Your Honours, the other factor

which the evidence disclosed to which I think we

omitted to refer, and which I do not believe, in fact,

Your Honours, is referred to in express terms by

the Court of Criminal Appeal itself, is that the
whole of the evidence suggests that the condition

of the applicant now, that is the disease and the

conditions of his custody, have greatly increased

the prospects of rehabilitation. Dr Lucire, the

Reverend Clark, Ms Dunsmore, the drug and alcohol

counsellor, all speak of a rapid maturation in the

light of his condition. Offered therapeutic drugs

he preferred not to use them, including methadone,

and all describe a marked change in attitude, a

new awareness of the seriousness of what he has

done, of the aimlessness of his past lifestyle,

and I suppose, Your Honours, one with a condition

such as that does start to rethink what one is going

to do with the rest of one's life.

So at the time His Honour Judge Badgery-Parker

sentenced him he saw some little hope of

rehabilitation. At the time he came before the

Court of Criminal Appeal in June of this year, we would submit on the evidence, Your Honours,

there was real hope of rehabilitation and

compelling evidence of it, so that there was

that additional factor. Now, Your Honours, we

accept that in an ordinary sentence appeal where it is suggested that the sentencing judge was in

error and where the error is established then

the question of sentence becomes at large for

the Court of Criminal Appeal and we accept that there
may be caseswhere, despite the error established,

the Court is of the view that the sentence passed

is nonetheless appropriate and should stand.

(Continued on page 26)

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MR HIDDEN (continuing):  Your Honour~ if authority be

required, it is sufficient, Your Honours, to

refer to the decision of this Court in HOUSE

V R, (1936) 55 CLR 499, which is actually a

sentence appeal directly to this Court in respect

of an offence under the BANKRUPTCY ACT. At

page 505, the Court said, on the fifth line:

If the judge acts upon a wrong principle,

if he allows extraneous or irrelevant matters

to guide or affect him, if he mistakes the

facts, if he does not take into account

some material consideration, then his

determination should be reviewed and the

appellate court may exercise its own

discretion is substitution for his if it

has the materials for doing so.

Your Honours, in the same year, the same principles

are expressed by the New South Wales Court of

Criminal Appeal in RV GEDDES, (1936) 36 SF(NSW) 554.

There, Your Honours, the then Chief Justice

Sir Frederick Jordan expressed the principles

relating to appeals against sentence. GEDDES

was itself in fact a Crown appeal against

inadequacy but the remarks of the learned

Chief Justice were of general import. His Honour

used an analogy to an appeal against an award

of damages by a civil jury and His Honour said,

at the bottom of page 555:

In applying considerations as general as

these, it is necessarily not often that

it can be said, with reasonable confidence,

that the sentence imposed was wrong. If

it appears that the wrong principle has

been applied, the Court must, of necessity,

treat the question of the sentence as being

at large, although, even in such a case,

the attitude and report of the judge, who

alone has had the opportunity of corning

to grips with the evidence at first hand,

may be, and ordinarily would be, of great

importance.

A little further, Your Honours, the Chief Justice

said, at about point 3:

The analogy is not exact; but I think that

a Court of Criminal Appeal should intervene

if the sentence appears to it to be out
of reasonable proportion to the circumstances
of the crime, having regard to the facts
proved in evidence at the trial; but before
the Court is satisfied that such an absence
of due proportion exists, it should make

the fullest allowance for the consideration

C2Tl7/l/ND	26	13/9/88
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that the trial judge has had an advantage

denied to it, namely, that he has seen the

witnesses, and, therefore, that he has had

an opportunity of forming impressions which

no perusal of cold print can afford.

TOOHEY J: Mr Hidden, I do not quite see the relevance

of HOUSE and GEDDES to the present case where

you have already told us that on the material

available to the sentencing judge it is not

suggested that the sentence was other than

appropriate.

MR HIDDEN:  Your Honour, the relevance, we would submit,

is this, that the principles expounded in HOUSE

and GEDDES relate to what I might describe as

an ordinary sentence appeal where no fresh evidence

is involved and where it is argued that the sentencing

judge was himself in some way in error.

Your Honours, in a nutshell, our submission is

this:  where that cannot be said and where there

is before the Court of Criminal Appeal fresh

evidence which is admissible and cogent, then the court cannot do otherwise than intervene.

TOOHEY J:  The court did intervene in the sense that it

regarded the matter as at large before it, that

is, the Court of Criminal Appeal.

(Continued on page 28)

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MR HIDDEN:  I am sorry, Your Honours,

"intervention" was the wrong word. We would

submit that the Court cannot do otherwise than

adjust the sentencing order otherwise the fresh

evidence, which is cogent and which, on the authorities,

is entitled to effect, gets no effect. Of course,

for that reason, Your Honours, we would say,

a fortiori - - -

DAWSON J: There is a fallacy in that, is there not? I

mean, it is given effect; it is weighed in the

balance with the other evidence; its weight
may not be sufficient to lead the Court to interfere

but it is given effect. You say it is only

given effect if it tips the balance but that

is not right, is it?

MR HIDDEN:  Your Honours, we submit that to accept the

fresh evidence, as the court did, and to see

it as material on the question of sentence and

yet to affirm the sentence of the learned sentencing

judge, necessarily involves sub silentio the assumption that the sentences and non-parole period originally passed were inadequate on the

material before the sentencing judge.

DEANE J: That is not quite so, is it? What it may involve

is the view that the sentence originally imposed

was at the bottom of what was available in the

exercise of discretion and then, when the appellate

court comes to give effect to the new evidence,

a sentence which it imposes is one which does

not seem to it to be at the bottom of the range

but in the middle of the range, as it were.

Whether that is an error of law may be a different

question but that seems to be more what the court

has done here.

MR HIDDEN:  I suppose to that all we can say, Your Honour,

is that the court did not say that of the sentence

passed by the learned primary judge.	What is
more, Your Honours, it remains our submission

that it was not, in any event, "at the bottom"

of the range. It could have been heavier but

it was an appropriate sentence viewed against

the statutory maxima and the criminality involved.

But we appreciate, Your Honours, that is - - -

DEANE J:	What I was really suggesting to you is that the most
you can get out of this judgment is that silently
the members of the Court of Appeal have thought that the trial judge's sentence was somewhat
light but within the range of his discretion.
MR HIDDEN:	Your Honours, might we approach it this way,

perhaps, by analogy - and we can do no more than

this - with an appeal against conviction on the basis of fresh evidence. As Your Honours know,

C2Tl8/l/SDL	28	13/9/88
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in any appeal against conviction a Court of Criminal

Appeal in New South Wales and in other jurisdictions,

may find an error but find that it is unlikely

to have affected the result: that is that there

was no substantial miscarriage of justice flowing

from it and, therefore, none the less, affirm

the conviction even though there was some error

in the course of the trial. I suppose, Your Honours,

that is, analogously, what a Court of Criminal

Appeal is doing in a sentence appeal where it

finds error but says, none the less, the sentence

is appropriate, saying, in effect, "Well, there

might consider that an appropriate analogy.

has been no miscarriage arising from the error."

Your Honours, when a Court of Criminal Appeal

considers fresh evidence in a conviction appeal

what it does is determine the cogency of that

evidence, and I am using very loose language

here at the moment, Your Honours, but if it is

of the view that the result might have been affected

if that evidence had been available then the

court will order a new trial and it will do so

because the unavailability of the fresh evidence

at the trial amounts to a miscarriage of justice.

So much was affirmed by this Court, Your Honours,

in GALLAGHER V REG, (1985-1986) 160 CLR 392.

It is sufficient, no doubt, Your Honours, to

refer briefly to the joint judgment of Your Honour

the Chief Justice and Your Honour Justice Deane

at page 402 where, in the last complete paragraph,

Your Honours said:

Regardless of the precise words in which

one describes requirements such as "cogency",

"plausibility" or "credibility", the ultimate

question for decision by an appellate court

when considering an application for a new

trial ,on the ground of fresh evidence in

the reievant sense is, as the remarks of

Rich and Dixon JJ. in CRAIG indicate, whether

there has been a miscarriage of justice

at the trial. The appellate court will

conclude that the unavailability of the
new evidence at the time of the trial involved

such a miscarriage if, and only if, it considers

that there is a significant possibility that the jury, acting reasonably, would

have acquitted the applicant of the charge

if the new evidence had been before it in
the trial.

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MR HIDDEN (continuing):  Now, Your Honours, we would submit

that the situation is analogous in the sentence

appeal. Once a court determines that there is before

a Court of Criminal Appeal - admits fresh evidence

which was not available at the time of the sentencing

proceedings, determines that it is of relevance to

the question of sentence, that it is material which,

on the authorities, entitles the prisoner to leniency,
then, in the same sense, there has been a miscarriage
of justice in the proceedings at first instance
because of the unavailability of that material.

We would submit if that be so, Your Honours, then then the Court of Criminal Appeal must either adjust

the sentencing order itself or - and, of course, here
the analogy becomes even more apt - in effect, order a
new trial; that is, remit the matter to the sentencing
judge saying, in effect, there is now fresh, significant

material which you should consider.

TOOHEY J:  But if the Court of Criminal Appeal takes that

exercise on board for itself, why should it not look

at the fresh evidence and conclude that the sentence

imposed by the sentencing judge, although imposed

perhaps without all the knowledge that the Court of Criminal Appeal has, is nevertheless an appropriate

sentence in all the circumstances?

MR HIDDEN:  We would only say, Your Honours, because the miscarriage

remains unremedied. With a conviction of appeal, if the

fresh evidence is likely to have affected the result

and has cogency, then the appellate court must direct

a new trial and have the matter re-examined.	Now,
in a sentence appeal - - -

DAWSON J: Miscarriage is the failure to have regard to the

evidence, is it not?

MR HIDDEN: Well, in a fresh evidence case, we would submit,

Your Honours, the miscarriage is_ the unavailability

of the evidence at the time of trial.

DAWSON J: 

Wel 1 , . - - -

MR HIDDEN: 

Now, Your Honours, in a sentence appeal, if the

analogy is apt, in a sentence appeal, then unless the
c.ourt does something, the miscarriage arising from

the unavailability of the material at the time of

sentence remains unremedied.

DAWSON J: But it does something; it looks at the evidence.

Well, that is one other way of looking at it - remedy

is -

MR HIDDEN:	We would submit it must give practical effect to it.
DAWSON J:	Yes.

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TOOHEY J:  You see, your submission seems to have built into it,

Mr Hidden, that so long as the Court of Criminal

Appeal has some material going in mitigation which

was not available to the sentencing judge, then the

sentence imposed by the sentencing judge must be

reduced.

MR HIDDEN:  Yes, Your Honour. Well, yes, Your Honour, provided

the material has cogency.

TOOHEY J:  Oh yes, I accept that, but that -

MASON CJ: The cogency only means that there is a significant

possibility that it might affect the result.

MR HIDDEN:	Pursuing the analogy, Your Honour, yes.
MASON CJ:	That enables you to reconsider the matter.
MR HIDDEN:	Yes.
MASON CJ:	And when you reconsider the matter you may come to

the conclusion that notwithstanding that there was a

significant possibility,on a proper consideration of

the whole of the material, it does not or should not

affect the result.

MR HIDDEN: Well, it - - -

MASON CJ:  By saying that new evidence or fresh evidence is

cogent you do not imply that it will affect the result.

MR HIDDEN:  I appreciate that, Your Honour, yes. If one

analogizes with a conviction appeal situation, yes,

Your Honour, the second jury may	still convict.
I appreciate that, Your Honour.	But here, we would

submit, Your Honours, here we have material, the

cogency of which is obvious and which falls squarely

within a well-established line of authority entitling

people to leniency, the sort of leniency that Smith

got in South Australia and we would submit, Your Honours,

-would, inevitably, if it had been known to the learned	sentencing judge, have earned more leniency than he
got, wh::n one looks at the sentence and non-parole
period fixed by the learned sentencing judge in the light of the slight subjective material he then had.

(Continued on page 32)

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TOOHEY J:  But the Court of Criminal Appeal, having looked

at the matter for itself, does not the onus then
shift to showing this Court that the Court of
Criminal Appeal in arriving at the sentence that
it did, erred in some way and in some way significant

enough to attract the grant of special leave?

MR HIDDEN:  I appreciate that, Your Honour. Our submission,

Your Honours, is that, on the bare figures, it has
been shown so to have erred but in addition,

Your Honours, we would submit that the appeal

raises the spectre, perhaps, of a principle
relating to appeals based on fresh evidence only

on which, as far as we are aware, this Court has
not pronounced and as far as we are aware neither

has any other appellate court of the States of this

nation. Are the principles different when fresh

evidence is the only basis of the appeal where we

are not talking about error by the primary judge

but where we are talking about new material entitling

a person to leniency? Must then an appellate court,
assuming no error by the sentencing judge on the
material before him, intervene in a practical way,

either by adjusting the order or by remitting the

matter.

DEANE J:  What do you say if the thought process was this?

"We think the four and a half years non-parole

period was within the limits of discretion, that it

was a bit light on. We think the trial judge would

have allowed a six months rebate here which would

be four years but looking at it we think the appropriate
non-parole period is four and a half years, which
we think is spot on." Is there error of law in

that?

MR HIDDEN:  In a fresh evidence case, Your Honour, we would

submit yes. Again, we can only analogize it

because we know of no authorities squarely on

the point but, we would submit, if that were

the reasoning there would be a touch of

NEAL V REG in what happened.

DEANE J:  Is what you are saying then that unless the

appellate court sees positive grounds for

deciding miscarriage of discretion it, in a new

evidence case, has to, as it were, adopt the

simple process of starting with the trial judge's

sentence and discounting?

MR HIDDEN:	Yes, Your Honour, unless it decides that the fresh evidence is of really no significance and clearly in many cases the court might admit fresh
evidence but find it has no cogency or has minimal
bearing on the appropriate sentence. The court
has not done that here. It has clearly considered
the material significant.

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DEANE J:  I suppose there is a mid-way place and you might

argue that if it does not adopt the discounting

approach it should at least say so?

MR HIDDEN:  At least, Your Honour, yes. The only analogy

we can draw to NEAL V REG, (1982) 149 CLR 305,

is this: Your Honours will recall that was a case

in which the Queensland Court of Criminal Appeal exercised its statutory power that the New South

Wales Court of Criminal Appeal also has, to

increase sentence on a prisoner's appeal. The

main question decided by this Court was that

the court at the very least should not have done

so without warning the applicant that it was minded

to do so and giving him an opportunity to abandon

his appeal.

(Continued on page 34)

C2T20/2/MB 33 13/9/88

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MR HIDDEN (continuing): At page 308, the then Chief Justice

Sir Harry Gibbs said this - it is sufficent to

start in mid-sentence, Your Honours, at about

point 3:

but the continued existence of the power

is itself surprising -

that is the power to increase on a prisoner's

appeal -

now that the Attorney-General has a right

of appeal against sentence: sees 669A of

the CRIMINAL CODE.	The provisions of
s. 668E(3) -

which is the equivalent roughly, Your Honours,

to our 6 ( 3) of the CRU1INAL APPEAL ACT -

may now be regarded as redundant, except
perhaps in very special cases, and it

appears that in practice those provisions

are little used.

Your Honour~, at pages 310 to 311,

Mr Justice Murphy said words to the same effect,

as did Mr Justice Brennan at page 322, and

Mr Justice Wilson agreed with the reasoning of the

Chief Justice.

Now, Your Honours, it is our submission that

to affirm the sentence of the primary judge in the

light of the fresh evidence the Court of Criminal

Appeal necessarily did something like NEAL; that

is, it said in effect, "Well look, His Honour

Judge Badgery-Parker's sentences were not enough

anyway. We consider the fresh evidence against

the sentences and non-parole period which

we think should have been passed, which are greater

than those passed by the primary judge, and we

a NEAL situation, Your Honours, but again, we	come back to square one." It is clearly not
submit, there is some appropriate analogy in an examination of the reasoning of this Court
in that decision and it is that, we would submit,
Your Honours, which it is not open to a Court of
Criminal Appeal to do in an appeal on the basis
of fresh evidence by a prisoner where that evidence
is admitted and is found to be of real cogency.

Your Honours, those are our submissions,

subject only to this: our instructing solicitor

is at present trying to obtain the regulations

relating to remissions which might assist in

answer to Your Honour Justice Gaudron's question.

The only other matter is this, Your Honours: we

have taken the liberty in our outline to foreshadow

the consequential orders we would seek if Your Honours

C2T21/l/JM	34	13/9/88
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were minded to grant the application and allow

the appeal. Now, I do not know whether Your

Honours feel it appropriate to hear us on that now?

MASON CJ:  Yes, we would be disposed to hear what you have

to say on that now.

MR HIDDEN:  If the Court pleases. Simply this, Your Honours,

that if Your Honours were of the view that the

appeal should succeed, we would submit that this
is a case where there now would be no point in

again remitting the matter to the Court of Criminal

Appeal. We would submit that it would, of course,

be open to this Court to itself impose the sentence

which should have been imposed. In that regard,

Your Honours, we remind Your Honours of the

decision of this Court in IBBS V REG (1987), 163 CLR 447.

Suffice it to say, Your Honours, that was a case

where this Court determined that the South Australian

Court of Criminal Appeal was in error and that

special leave should be granted and the appeal

allowed, but rather than remitting it, the Court

simply qrdered that the sentence suggested by the

dissenting judge ought be the sentence, and so

ordered.

Now, in that regard, Your Honours might

recall that in this particular case when the

matter was first before the Court of Criminal
Appeal the dissenting judge, Mr Justice Kirby,
appearing at page 47 of the application book,

Your Honour, was of the view that the head

sentence should stand, but that the non-parole
period should be reduced to two and a half years.

Now, of course, if Your Honours did that, it

would already have expired. But,we would submit,

Your Honours, there is no incongruity in that

and we can assure Your Honours from time to time

in the Court of Criminal Appeal, that is done,

that is, where minimum terms ru:ereduced to a point

where they have in fact already expired. That	is one course Your Honours might take, or make
some other order perhaps in relation to the
minimum term which would effect his almost irmnediate release.

(Continued on page 36)

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MR HIDDEN (continuing):  The other course, of course,

Your Honours, is the other course which might have been taken by the Court of Criminal Appeal and

this is that this Court remit the matter to the

learned sentencing judge. We can assure

Your Honours that if that order were made we

have every reason to believe that the matter

could be relisted before His Honour very

expeditiously. Those are our submissions, if

the Court pleases.

MASON CJ:  Yes. Mr Hidden, my attention has been drawn

by Justice Dawson to a sentence, it is the

penultimate - or third-last sentence in the joint

judgment of the court delivered in this case

earlier.	You can see it at the bottom of
page 51.

MR HIDDEN:	The bottom of page 51?
MASON CJ:	Yes.

MR HIDDEN:  Yes, I am sorry, Your Honours, I had intended to refer to that. Your Honours, only this:

we would submit, Your Honours, that what the

court intended by that remark was that - of course

this Court, on that occasion, was not examining
the cogency of the evidence except in so far

as to determine whether leave ought properly

to have been refused. We would submit that what

the court was conveying by that sentence was·

that upon the matter returning to the Court

of Criminal Appeal the court might find the evidence
perhaps inadmissible or might find that it lacked
cogency or was not such as entitled the applicant
to leniency in all the circumstances and we would
submit, Your Honours, that is the true meaning

of what fell from the majority of the court on

that occasion.

MASON CJ: Well, it requires you to look into a crystal

ball, does it not? .· ....

MR HIDDEN:	We stress the word "necessary", Your Honour.
MASON CJ:	Yes.
MR HIDDEN:	May it please the Court.

MASON CJ:  Thank you, Mr Hidden. Yes, Mr Blanch.

MR BLANCH:  I hand up an outline of submissions on behalf

of the Crown. The outline of submissions

effectively canvasses the material that I wish

to put in answer to my friend's submissions.

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In our submission, the basic mistake in the submission that he makes as to the assessment of the court is to say that the court must not

have exercised its discretion in an appropriate

way because it did not reduce the sentence and, in our submission, the fallacy in that argument

is that - and in the analogy that he gave to

the court, is that when dealing with sentences
there is no such thing as a right or wrong sentence

and in dealing with sentences the court is dealing
with a pattern of sentences, a range of sentences

and when the court received the fresh evidence

and assessed the fresh evidence in the light

of the facts of the case, the court simply came to the conclusion that on the facts of the case before i~ and including the fresh evidence, nothing

had been made out to indicate that the sentence

that was imposed was outside the appropriate

range of sentence for the offences before the

court.

That appears to be the conclusion of the

court at pages 80 and 81 and particularly reading

from the top of page 81 of the application book:

(Continued on page 38)

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MR BLANCH (continuing):

the only consideration is whether the

fact that the appellant, through his own

addition to heroin, has regrettably placed

himself in the situation that he now finds
himself, ought to result in a head sentence

less than seven years or a non-parole period

less than four and a half years. In my

view, seeing the totality of the matters

which are required to be taken into account

in sentencing the appellant, including the

nature of the confinement he must undergo

and any consequence of that, I do not
consider that any ground has been shown
for a reduction in either the sentence

or the non-parole period.

GAUDRON J:  That seems to leave out of account, does it not,

the actual different nature of the imprisonment
that the applicant will have to endure when

compared with that of the ordinary prison population?

MR BLANCH:  No, Your Honour. I would submit that the

words "including the nature of the confinement

he must undergo and any consequence of that"

specifically take that into account. That

specifically includes that.	The evidence was
given about that -

GAUDRON J:	I am sorry. If I take you back to the first sentence that you read, when it is said that he
"has regrettably placed himself in the situation",
in one sense that is true, but in one sense it is
not actually true, is it?
MR BLANCH:	Yes, well that is certainly so, but I would submit,

Your Honour, that nothing more can be read into

that than a factual recitation. His Honour is

simply saying that this unfortunately is the

circumstance. He has contracted AIDS and because

of that and factors beyond his control and some
factors within his control, the fact of the

matter ultimately is that he is going to be in

the special unit of the gaol, and His Honour is

simply setting that as a factual account. That

is the question, whether the fact that he is

there requires a reassessment of the sentence, and

then he says that taking that into account, and,
as I indicated, specifically includes the nature of
the confinement and the consequences of the nature
of the confinement -the court then says having

considered all of those matters together, nothing

is shown that would indicate that there should be

an intervention by the court within its discretion,
and that is not because the court has hidden
its reasons and secretly increased the sentence

and then reduced it again, but rather because

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the court is looking at the question of sentence on the basis of an appropriate range of sentence

and non-parole period for the offences before

the court.

DEANE J:  That puts your finger on the problem, does it not?

I mean, if you look at that last sentence in what

you have read, and your submission in point 5,

is what you are saying this, that in a new evidence
case such as this, on sentence, it is appropriate
for the court to say, "Taking into account the new
evidence the sentence is still within the maximum

permissible range, and that being so we will not

intervene"?

MR BLANCH:  Yes, Your Honour. Yes, it is open to the court

to do that.

DEANE J:  And thereby effectively disregard the effect

of the new evidence, even though it is apparent
the trial judge with it would have given a lower

sentence and the Court of Appeal in the light of it

would also have given a lower sentence?

MR BLANCH:  Your Honour, first of all r would submit that it

would be inappropriate for the court to look at it

on the basis of speculating what the judge at first

instance would have done in respect of the evidence.

The court is required to make its own assessment.

DEANE J:	What if the judge at first instance had said -
take it away from this case - "If the man had

co-operated with the police, I would have fixed a

non-parole period of three months less", and
the Court of Appeal being told that the police

evidence was mistaken and the man had co-operated

said, "We would probably have fixed three months

less if we were dealing with it at first instance,

but the sentence he fixed was within the maximum

permissible range"?

(Continued on page 39)

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MR BLANCH:  Your Honour, the Court of Criminal Appeal would

still have to make its own assessment of the

matter. The Court of Criminal Appeal is not

bound to give effect to the thought processes

of the sentencing judge - not bound by them.

DEANE J:	But you are now turning aside my question, and
that is, as I understand what you say is, if the Court of Criminal Appeal thinks that the sentence was within the permissible range in the light of the new evidence, it should dismiss
the appeal even though it would itself have imposed
a slightly lower sentence.
MR BLANCH:	If the Court of Criminal Appeal itself would

have imposed a lower sentence, Your Honour?

DEANE J:	But _thinks that the sentence was within the permissible range in the light of the new evidence. Because, is that not what they have done, in
that last sentence you have referred us to?

MR BLANCH:  No, Your Honour. Your Honour is assuming that

the Court of Criminal Appeal would come to the

conclusion that a lower sentence was appropriate

even within a range. I would not seek to argue -

that proposition is arguable on authority and,

generally speaking, on the basis of the philosophy

of cases like HOUSE V R where the Court of Criminal

Appeal should not interfere unless there has

been a complete misunderstanding of the nature

of the discretion in some way so that there should

be an interference. The Court of Criminal Appeal

in New South Wales, over a long period of time,
has taken the view that because the court is

dealing with prison sentences and the liberty

of people then, even if it is a matter of assessing

a sentence as being slightly lower,then the court

will intervene and reduce the sentence by a slight

margin. It might be said that in all of those

cases they have fallen into an error in determining

to intervene simply to fine-tune, which was a

current phrase in sentencing, or in the decisions

of the Court of Criminal Appeal in New South

Wales in the fifties and the sixties - that the

court would not intervene to fine-tune.

DAWSON J: All of this has an air of unreality when you

are talking about fresh evidence. Really, the

sentence is at large after fresh evidence is

produced.

MR BLANCH:	Indeed, that is so, Your Honour.
DAWSON J:	In fact, the Court of Criminal Appeal could

conclude that had the trial judge had this evidence

before him, he would have given a reduced sentence.

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Nevertheless, they are at liberty to give the

sentence which they think is appropriate. It

must be so.

MR BLANCH:  Yes.

DAWSON J: That means that HOUSE and those cases are really

not of any relevance.

MR BLANCH:  On that basis that is so, Your Honour. I speak

about this in terms of the proposition put to

me by Justice Deane and in answering it I am

seeking to avoid putting the proposition that

I would ask this Court or the court in New South

Wales to go back to a situation of refusing to

fine-tune sentences.

DEANE J:	I do not want to catch you in the second limb of a pincer movement, as it were, but it seems
to me that you are going back, in your answer to Mr Justice Dawson, on your second sentence
in submission 5?

MR BLANCH:  Going back on it, Your Honour? No, the court

did consider the fresh evidence in this case.

DEANE J:	No, what you are saying is that the court does
not have to interfere as long as it considers that the sentence was within the appropriate
range.  Which means that assumes that it is doing
the exact opposite to what Mr Just ice Dawson
put to you.
MR BLANCH:	Yes, Your Honour. It is either a matter of_

the court is certainly entitled to consider the

fresh evidence, which is what we have put in

our submissions numbered 2 and 3 which, as I

understand it, is the proposition

Mr Justice Dawson puts in relation to that.

They are entitled to do that and that is precisely
what the court did do in this case.	They are

also, in answering my friend's submission that

they have given no effect to or that it can be

seen that they have given no effect to	the fresh
evidence	by the mere fact that they did not

reduce the sentence - the answer to that proposition

is what is put in our submission 5.

(Continued on page 42)

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MR BLANCH (continuing):  Our primary submission

is back to the submission that we put in paragraphs

2 and 3 and the proposition Mr Justice Dawson has put.

But,as I say, the answer to my friend's proposition

is contained in paragraph 5. So there are other

matters -just quickly, dealing with the factual
situation in this case, there were a couple of other

matters. Two matters, in particular, were where

Mr Justice Lee 1 on page 80, spoke about the fact

that there had oeen no other sentence for the escape

or for the break, enter and steal offence, and I am

not suggesting that - bearing in mind that the break,

enter and steal offence was so much earlier - that

it ought to have had any effect on the sentence.

The escape charge was a matter for some consideration

but the other factor that did not appear to have

attracted any particular attention was the evidence

that appears on page 5 of the appeal book, and that is

that, in respect of the last sentence that the

applicant was serving, he was released to probation

on 22 August 1985. Now that release to probation

was three days before the sexual offences, the

abduction. So that the chronology of the situation

was, he was in gaol, released to probation and,

within two or three days committed these offences.

The scheme in New South Wales with respect to

probation periods is that, when prisoners are released
to probation and they breach probation, they are not
automatically required to serve the balance of the
probation period but they are charged with a breach

of probation as a separate offence and they can be

sentenced to a period up to the balance of the

probation period. There is no evidence at all in the

appeal books about that, whether anything happened

in respect of that, but it is certainly an important factor to bear in mind in the overall context of the

sentence that was being imposed by both the sentencing

judge and then considered by the Court of Criminal Appeal.

GAUDRON J: Well, it is no more relevant, though, is it, than

the sentence imposed upon the co-offender?

MR BLANCH:  Certainly the sentence imposed upon ~he co-offender

was relevant, but the court had the sentence imposed

upon the co-offender before it; the court had the
information as to the number of offences and a

probation report in respect of the first offender,

the other offender, and was in a position to make up

its own mind, as Mr Justice Lee said at the end of

his judgment that, I think1 the court understood

what had happened in Geale's case because the material

in relation to his offences and details in respect of

his record were all before the court. So the Court

of Criminal Appeal was in a position to gauge the

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the relativities between the two offenders. So there

was nothing missing at all so far as the court was

concerned in respect of him, so the court was

perfectly entitled to proceed on in that respect.

The other matters - I cannot assist the Court, I do

not think, in respect of any of the other matters

that arose during the course of argument; questions

arose as to remissions. A release date for the

applicant has been given as January next year; the

sentence and the non-parole period have both been

backdated to commence on 26 August 1985; the release

date that is available for the prisoner in January 1989

is obviously the four and a half year non-parole

period less a quarter remissions.

(Continued on page 44)

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MR BLANCH (continuing): However, the remission system has

changed in the intervening period and there is

no longer a division between a quarter and a

third remissions and prisoners are all entitled to

a third remissions unless they are lost at the

end of a monthly calculation. So far as the Malabar Assessment Unit is concerned and the

conditions in the unit, there is material before

the Court and I cannot assist in any real way

so far as that is concerned. Those are my

submissions unless the Court wishes to hear

from me about any other matter.

MASON CJ:  Yes, thank you, Mr Blanch. Mr Hidden.

MR HIDDEN:	Nothing in reply, if the Court pleases.
MASON CJ:	The Court will take a short adjournment in

order to consider what course it will take in

this matter.

AT 11.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

MASON CJ:  The majority of the Court is not persuaded

that there was any error of principle on the

part of the Court of Criminal Appeal. The application for special leave is therefore refused.

MR HIDDEN:	May it please the Court.
AT 11.58 AM THE MATTER WAS ADJOURNED SINE DIE

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