Baker v The Queen

[1996] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 1995

B e t w e e n -

MALCOLM GEORGE BAKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 9.35 AM

Copyright in the High Court of Australia

MR J.L. TREW, QC:   I appear with my learned friend, MR A.G. JAMIESON, for the applicant, your Honour.  (instructed by De Luca‑Leonard)

MR R. KELEMAN:   If it pleases the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR TREW:   Your Honours, in the Court of Criminal Appeal the Chief Justice, at page 29, emphasised the objective features of the crimes committed by the applicant that justified penal servitude for life and he said importantly, between the lines 15 and 20, that those objective features gave effect to the retribution - as giving effect to the retributive function  of sentencing.  On the other hand, Mr Justice Allen, between pages 31 and 32, emphasised that the applicant’s psychiatric illness is the background against which the objective factors must be judged and at those pages he pointed to the features of the illness that were manifested by a mounting rage triggered by the various incidents such as the break up of his de facto relationship, the belief that his son was sleeping with his de factor wife and finally, that his former de factor wife was about to form another sexual relationship.

Not all of those factors were of his own making but they are the background against which one must judge such matters as motivation, his capacity for restraint and planning which really was as a result of obsession, we submit, and in his particular case it is unjust, we submit, where the objective features the Chief Justice pointed to are combined with two other features, related perhaps, that he would not be a danger to society if released after an extended period of incarceration and where there are possibilities of rehabilitation in his case. 

In the Veen [No 1] Case that we have referred to, although it was life sentence that was spoken about, there are three matters that emerge, in our submission - and I will be going to pages 469, 470 and 471 in a moment, your Honours but there are three matters, we submit, that emerge from that that are necessary for the imposition of penal servitude for life, two of which are absent here.

The first one is that the offences are, in themselves, grave enough to require a very long sentence.  That is present.  Secondly, it appears from the nature of the offences or the offender’s history, that he is a person of unstable character likely to commit such offences in the future and, thirdly,  there is a need to protect the community from the consequences of such serious offences and that emerges, we submit, from that passage at the bottom of page 469 in Justice Mason’s judgment that was approved in the subsequent case of Veen [No 2] where, at about point 8, his Honour says:

The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter -

and the words we emphasis are the words that follow -

when it is attended by the additional factors to which I have referred.

The additional factors, we submit ‑ ‑ ‑

BRENNAN CJ:   The conviction here is for murder.

MR TREW:   That is so, your Honour, but we submit that the approach of his Honour in this Veen Case is relevant and is something upon which this Court should, with benefit, pass.

KIRBY J:   But Mr Trew, that is simply - his Honour is there dealing with the particular factors in Veen’s Case.  The Chief Justice is here dealing with this case and is there no significance in the fact that in this case there were six people murdered?

MR TREW:   There is, indeed, your Honour, and I would not wish to be heard to underestimate the gravity of the offences that have been committed but what we do submit that the correct approach is ‑ ‑ ‑

KIRBY J:   You cannot just treat it as a murder of one person and say, “Well, if all the considerations in Veen apply where it was one person” - we have got here a multiple murder of a most horrendous kind ‑ ‑ ‑

MR TREW:   I am not submitting, your Honour, that those are not significant, but what we do submit is that where even that serious series of offences is accompanied by the additional circumstances, that the offender at a distant time in the future is unlikely to be a danger to the community and where there are prospects of rehabilitation, it is our submission that that makes this case of the type that Mr Justice Allen spoke of and it is our submission that penal servitude for life which, we submit, is correctly characterised as a death sentence but incurred over a long period of time, is only appropriate for exceptional circumstances or, as other members of the Supreme Court have described it, as extraordinary circumstances.  Those very extraordinary and very exceptional circumstances are not present in a case, we submit, where the offender suffers from a psychiatric illness and where the uncontradicted evidence is that in the future, if released, he will not be a danger to the community and there is some chance of rehabilitation.

BRENNAN CJ:   Mr Trew, your argument is one which, were I sitting in a Court of Criminal Appeal, I would find very attractive.

MR TREW:   Your Honour, only one member of the court did.

BRENNAN CJ:   That is right and there may be some considerable power in the views that he expressed but, really, this is a case in which you are inviting this Court to take a different view on the assessment of the factors which are relevant in the present case.  You do not point to any error of sentencing principle.

MR TREW:   Well, we do, your Honour.  It is true we are relying upon the injustice that, we submit, is suffered by this offender but we are also pointing to a matter of principle, namely, that in a case where these other factors are present, they have been disregarded where the principle of retribution is given such weight that penal servitude is imposed.  The consequence of that ‑ ‑ ‑

BRENNAN CJ:   Can you state a principle?

MR TREW:   In our submission, the principle is that only in exceptional circumstances - this is the principle that Mr Justice Allen stated - should a sentence of penal servitude for life be imposed and a subprinciple of that is that that is not present when there are prospects of rehabilitation and when there is a prospect that at the completion of a long term of penal servitude the offender will not be a danger to society.  It is only in the case, we submit, where the offender is virtually morally and physically almost dead, where, in the type of cases that Mr Justice Allen spoke of, penal servitude for life should be imposed and as ‑ ‑ ‑

McHUGH J:   There is an argument against it that that approach turns the process on its head.  Having regard to the public interest in this matter and having regard to the history of the common law countries in respect to sentences for murder, why is the appropriate approach not that you start with a prima facie proposition that a conviction for murder carries life imprisonment unless one can show that there are circumstances that should prevent or at least give the Court a discretion not to impose a sentence of life?

KIRBY J:   I suppose you would say that that question is itself a special leave question and, therefore, we should look at it on that basis.

MR TREW:   Thank you, your Honour.  I, of course, would make that submission but, in our submission, your Honour, the history of sentencing has moved from the death penalty to give greater emphasis to rehabilitation and also to the prospect of the offender not being a threat to society when released and that has diminished the significance, we submit, of the principle of retribution.  In this particular case, the majority of the Court of Appeal have virtually adopted the principle of retribution as the only principle applicable in a serious case of murder such as this.

McHUGH J:   I know, but law and order is such a powerful political tool these days because there is a public perception that courts are out of touch with what the public or what community standards require.

MR TREW:   That may be regrettable, in our submission, your Honour, but if the Court here and the Court of Criminal Appeal below was fully appraised of the facts, that, perhaps, we would submit, less informed criticism of decisions of the courts would not be made if they were fully aware of the other facts.

McHUGH J:   But on any view in this case, supposing you gave this man 15 years.  He is not insane, he could not even qualify for a defence of diminished responsibility.  What would the community think of a sentence of 15 years, 18 years for six murders in those circumstances?  It would be outrage and that is why the Chief Justice, in this particular case, took the view that this was a proper case for a life sentence.

MR TREW:   Your Honour, we are not nominating that period of incarceration in any event but this person was suffering from psychiatric illness, the causes of which, on the evidence, brutally as it may seem to say, have now been removed and which the uncontradicted evidence of the psychiatrist is that he will not be a danger in the future.  In our submission ‑ ‑ ‑

McHUGH J:   That applies to most murderers, does it not?

KIRBY J:   In terms of principle, why is not the fact that he had six human beings who were killed, why is that not an exceptional circumstance?

MR TREW:   Well, your Honour, that, we would submit, is a special leave point ‑ ‑ ‑

McHUGH J:   No, it is a question of fact, is it not?

MR TREW:   Yes, but some questions of fact - these are multiple murders, many of them, and that is certainly the basis upon which the Chief Justice in the Court of Criminal Appeal based his judgment ‑ ‑ ‑

KIRBY J:   Why is that not open to their Honours in the exercise of their discretion?

MR TREW:   Your Honour, that completely disregards the other two principle that we are contended for.

KIRBY J:   It does not disregard them, it takes them into account but it says that this is the exceptional circumstance that requires the response that the Court has given.

MR TREW:   He cannot take them into account, in our submission, your Honour, if the effect of it is that it so overwhelms the other two and that is the difference between our submissions and the submissions of the majority in the Court of Criminal Appeal.

BRENNAN CJ:   That really is all that you can say, is it not?

MR TREW:   At that is it, your Honour, yes.

BRENNAN CJ:   I mean, here is a great weight being put to the intrinsic circumstances of the crime and that weight has led the majority of the Court of Criminal Appeal in what they regard as a sound exercise of a sentencing discretion to say that there should be the maximum penalty.  What you are saying is that unless you can exclude these other factors, that it is no case for the maximum penalty.

MR TREW:   That is it, your Honour.

BRENNAN CJ:   That does not sound to me like a question of principle, M Trew.

MR TREW:   Well, I would only be repeating myself again, your Honour, if I start the submissions.  If your Honours please.

BRENNAN CJ:   We do not need to trouble you, Mr Keleman. 

The application raises no more than an assessment of the circumstances of the particular case in order to determine whether the sentencing discretion has miscarried.  It raises no question of sentencing principle that requires the consideration of this Court.  For that reason, special leave will be refused.

AT 9.50 AM THE MATTER WAS CONCLUDED