Baker v The Queen

[1995] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 1994

B e t w e e n -

LAURENCE WILLIAM BAKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 11.01 AM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court pleases, I appear for the applicant, together with my learned friend, MR S.J. ODGERS.  (instructed by Murray Backhouse Turner)

MR R.N. HOWIE, QC:   I appear with MS M.F. LATHAM for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales ))

BRENNAN CJ:   Yes, Mr Game?

MR GAME:   If the Court pleases.  Before I commence, there was attached to the written submissions a document which was said to contain a tariff of sentences for murder by stabbing.  There is actually a further document that was handed to the Court of Criminal Appeal and it had one more case in it, and I hand the Court the document that was actually handed to the court.  It has just got one more case on it. 

GUMMOW J:    It is still a fairly small pool....statistician.

MR GAME:   Something less than a pool, I would have put to the Court.  It is more of a puddle than a pool.  If the Court pleases, this is a case - and we submit this case does raise an important question about tariff sentencing and that this is a particularly good vehicle for it because of the particularity of both murder and the particularity of this case and of the abundant inapplicability of this so-called tariff.  In this case the court, in upholding the Crown appeal, relied upon ‑ and, in fact, it would be our submission that the court in fact determined the case upon the basis of this so-called tariff of sentences for murder by stabbing and it is our case that once you start to talk about tariffs in relation to serious cases like murder and once you determine the cases on the basis of the tariff, you are really obliterating the whole of the sentencing discretion.  You are taking away everything that the sentencing judge did by reference to a colourless series of numbers and the only similarity they bear with each other is that they are said to be stabbings in which people have been murdered.  A document such as this is less than useful, in fact it is misleading, and I will take the Court to that very shortly. 

The way in which one uses these documents is of very great importance because these documents are produced in every case.  The courts talk about tariffs in every case.  You will not find a case where the principles relating to tariffs are discussed, let alone enunciated.  Naturally enough, we would not say, “Shut your eyes to what other judges do in other cases”, but one must have all the material, if there is material there to be had, to see how other judges have judged in other cases.  But one has to go from the general to the specific.  One has to have all of the information.  For example, in an area where there is great uniformity in sentencing, Commonwealth drug sentencing, where the facts are very similar, the amount of drugs and the subjective circumstances often not so important, the Commonwealth DPP provides detailed information about every case.  So you can go from the general to the very specific.  This document here, for example, if one looks at the case of Jason Richards, he was also sentenced for a manslaughter at the same time.  If one looks at the case of Naomi Turner, she was on bail for a serious stabbing at the time.  If one looks at the case of ‑ ‑ ‑

BRENNAN CJ:   That would not have had much effect, one hopes. 

MR GAME:   No, but, see, it was a concurrent sentence, so she received a concurrent sentence for those two offences.  But what I am saying is you cannot just look at a document that says X and then draw conclusions from it about a range of sentence.  In fact, the very ‑ ‑ ‑

DAWSON J:   It depends on the offence, to some extent.  I mean, with drug offences really it is much easier, is it not?

MR GAME:   Yes, of course.  But in murder the circumstances are always particular.  We would submit that the correct way to approach this question is the very way in which Justice Wood approached it at page 8 of the application book:

Counsel have taken me to a large number of cases concerning sentences for murder since the commencement of the Sentencing Act. 

And from that time on sentence has been at large in relation to murder:

It is impossible, for this particular offence, to derive any real tariff or indeed sentencing pattern, having regard to the wide variety of circumstances which give rise to the offence of murder - - -

DAWSON J:   That is true, but one can look at a series of stabbing offences like this and say they will cover a wide range of circumstances, but looking at this particular sentence it is lower than any of them.  That is the most one can say.

MR GAME:   Yes, that is the most one can say, but that is not what the Court of Criminal Appeal did in this case.  In fact, Justice Wood then went from the general to the particular.  He said, “Here are four cases that help me”, and in fact three of them are on that tariff and three of them are lower than the sentence after double jeopardy that was imposed on this applicant.  He goes from the general to the specific and says, “Will these ones help me.”  So what is one to infer?  That somehow or other because this sentence has now gone up from 5 to 8 minimum term, which is a rise of 60 per cent, but somehow or other, by reference to the tariff, it must be that there is an inference to be drawn or a decision or a determination that somehow this case is worse than those cases when the circumstances have not even been considered.  One has simply looked at the document.

But, yes, I accept what your Honour Justice Dawson says but that is not the way in which the Court of Criminal Appeal approached it in this case.  In fact, the way in which the Court of Criminal Appeal approached it in this case was to really denude this case of its subjective circumstances so that it simply becomes ‑ and they say at the bottom of page 19:

For the purpose of determining whether the subject sentence is manifestly inadequate it is necessary to balance the objective and the subjective considerations and relate the sentence to the tariff which is now developing for this type of offence.

Firstly, we would submit that that is wrong in principle.  But then, not only is the tariff colourless but then  Justice Carruthers says at page 20:

Be that as it may, the objective fact is that the respondent drew a knife, and thrice stabbed an unarmed man when he was not himself in real danger.

That is to put a mere gloss on the objective circumstances as Justice Wood had found them.  Moreover, if one goes back to page 19, his Honour says at line 10:

Insofar as subjective factors are concerned his Honour referred to all the relevant aspects of that part of the respondent’s case, including his vulnerable personality, the spontaneous nature of the offence, the sense of obligation which the respondent felt about Miss Beverley’s welfare, and the fact that he has attempted suicide ‑

Three of those circumstances are rather central objective circumstances of the case. 

DAWSON J:   This document was produced by the appellant, was it not?

MR GAME:   No, it was produced by the Crown.  The appellant had ‑ ‑ ‑

DAWSON J:   Of course, the appellant is the Crown.

MR GAME:   It was produced by the Crown and the appellant, in his written submissions, opposed its use. 

BRENNAN CJ:   Mr Game, you are not intending for any novel principle here, are you?

MR GAME:   No, your Honour.

BRENNAN CJ:   What you are saying is that the Court of Criminal Appeal got it wrong.

MR GAME:   Yes, I am.  But, your Honour, that is no reason for refusing special leave because they get it wrong all the time.  I am sorry if I cut you off before the end of the sentence but I could see ‑ ‑ ‑

BRENNAN CJ:   No, I understand precisely what you are saying.  What you are saying is that the Court of Criminal Appeal in New South Wales, whatever the language used may be, is not, in truth, applying the correct principles.  Is that right?

MR GAME:   Yes.  We are asking- - -

BRENNAN CJ:   If I might say so, one does not derive that immediately from just looking at the language of the judgment that you have drawn our attention to.

DAWSON J:   The use of tariffs is always fraught with difficulty, is it not? And it is a modern phenomenon, really, perhaps because of the availability of information and textbooks which now set out tariffs and tables, and so on.

MR GAME:   Computers punch out endless amounts of information about what happened in other cases so that you can punch into the computer “murder” and then you can punch in the word “stabbing” and out come 16 cases.

DAWSON J:   And to a greater or lesser degree the same problem arises always when one has to use tariffs, or when one does use tariffs ‑ one does not have to.

MR GAME:   I accept all of that but it is no small matter and it is important that the principles which have been stated by this Court on a number of occasions in relation to other areas, for example, in relation to assessment of damages, a case I referred to in the written submissions - there are many areas where those principles have been enunciated but they do need to be enunciated in relation to this area and this case is an ideal vehicle for that.  But in answer to your Honour the Chief Justice’s question to me in relation to whether it clearly arises in this case, we would say that there is nothing in this decision other than a reliance upon the tariff and a second guess at the considered decision of Justice Wood.  I say that because the only feature which I refer to, at page 20, is the objective fact, “he stabbed him three times.”  What is one to make of that?  One of the wounds was entirely superficial; another was non-fatal and one punctured his lung.  In any event, there were findings made about that by Justice Wood.  When one goes to the next line:

his Honour erred when he concluded that the circumstances of this case place it at the lower end of the scale of seriousness.

But that was predicated on the basis of what I would put as tariff reasoning which is that the case ‑ ‑ ‑

DAWSON J:   It is not clear from the judgment how his Honour used the tariff, is it?  At the bottom of page 19 he says that you have to relate it to the tariff but he may have done it in the way in which I suggested was not incorrect, he may have done it in a way which you suggest was incorrect, but one does not really know.

MR GAME:   That is true, your Honour, but what I am saying is that the case has been denuded of its substance by the way in which ‑ there are no reasons for coming to that conclusion other than that a man got stabbed three times.  We do put our case in another way which is that on a Crown appeal - once the court accepted the factual findings of Justice Wood, and once one accepted those findings this was a truly exceptional case - - -

DAWSON J:   And there is no manifest error, you would say?

MR GAME:   And there is no manifest error.  None has been identified.  Certainly no gross departure from principle, in fact, no attempt by the court to even identify gross departure from principle.

DAWSON J:   Save as is indicated by the shortness of his sentence.

MR GAME:   Yes.  But that does not really take that argument any further, in a way, your Honour. 

BRENNAN CJ:   Can I ask you whether, in the passage commencing at the top of page 20 and going to half‑way down page 21, you perceive any error of principle?

MR GAME:   Yes.  In the processes of thought.  Firstly, there is obviously nothing wrong with what appears in the citation from Dodd but there is an error in what is regarded as the objective circumstances of the case, because what has happened is the court has really identified the objective circumstances by reference only to the actus reus.  So that the excessive self‑defence, pre‑Zecevic aspect of the case, the case falling short of diminished responsibility, the fact that there was no intent to kill, and so forth, are all taken out of the considerations by what is identified at page 19. So that ‑ ‑ ‑

DAWSON J:   Your client pleaded guilty, did he not?

MR GAME:   Yes, he did.  But what I am saying is, these are the things that Justice Wood relied upon in deciding that it was at the lower end of the scale of seriousness.  But there is certainly nothing in that passage that would tell you why the court differed from his Honour Justice Wood’s conclusion.  There is simply no reasoning disclosed.  Certainly no reasoning that would identify a gross departure from principle.  Moreover, when one goes to page 21, line 10, a reference to “general deterrence” - we have no argument with that but Justice Wood had specific regard to that at page 9 of the application book.  Justice Wood really had specific regard to all of these things.  As I said, in a sense we put this case as a case about the importance of giving full weight to what a sentencing judge does.  My argument is, really, that all that has happened in this case is the tariff plus the second guess.  That being so ‑ ‑ ‑

BRENNAN CJ:   To use the term “second guess” is really to use a pejorative term which undervalues the importance of the exercise by the Court of Criminal Appeal of its own discretionary judgment.

MR GAME:   Yes, but, your Honour, if the reasoning is not disclosed, for differing with the conclusion which appears at line 16 on page 20, then what is one to make of it?  How is one to make to test that proposition?  One way of testing it is to say, “Accept the findings which Justice Wood made” - and they are identified in my written submissions at pages 3 and 4 - “and ask oneself the question,  ‘How could it be said that this is not at the lower end of the range of seriousness?’”  In my submission, there is no answer to that proposition.

So I am sorry if I used a pejorative term but I was really simply trying to highlight the fact that there is no reasoning which answers Justice Wood’s judgment.  Then the court goes on:

That being so, it is necessary to consider certain evidence tendered by the respondent inthe event that the Court were to resentence him.

In this case, firstly, there is no reference to the principles relating to Crown appeals but, secondly, there is no reference to the submissions that were put on discretionary dismissal of the appeal, and they were substantial submissions and they were simply not dealt with by the court.  We would put to the Court that there is no reason to conclude that the Court had regard to those submissions when those were submissions that required specific attention and those submissions are considered by Justice Smart in his judgment at pages 34 and following.  If I could just take the Court to those.

First of all, his Honour at page 34 referred to evidence of Dr Milton which went further than the evidence before Justice Wood and confirmed that this was a case, in effect, of: 

not fully qualifying for the defence of diminished responsibility ‑

identifying the possibility of mild brain damage, speech and cognitive difficulties: 

apprehensive of people who were not members of his family.

And then at page 35, although it did not establish diminished responsibility, the evidence went some way towards it.  Then evidence about his progress whilst in gaol; “double jeopardy” referred to at the bottom of page 36, “high prospects of rehabilitation”, and then at 37, a further reason for discretionary dismissal, the very unusual circumstances of this case; the tragic and unusual circumstances of this case.  Those submissions were simply not addressed by the Court of Criminal Appeal, and we would say in circumstances such as this that there is no reason to infer that the court has actually addressed those submissions.

GUMMOW J:   They did look at Dr Milton, did they not, at page 21 line 20?

MR GAME:   That is true, your Honour, but only for the purpose of resentencing.  So that they have not considered it in the context of a different aspect of the respondent, that is to say, the respondent in the Court of Appeal’s case.  Those are our submissions, if the Court pleases.

BRENNAN CJ:   Thank you, Mr Game.  We need not trouble you, Mr Howie. 

(Reasons for refusal of application for special leave to appeal were delivered)

BRENNAN CJ:   For that reason special leave must be refused.

AT 11.21 AM THE MATTER WAS CONCLUDED