Baquayee v The Queen

[2004] HCATrans 512

[2004] HCATrans 512

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 2004

B e t w e e n -

MOHAMMED TAMIN BAQUAYEE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 2.04 PM

Copyright in the High Court of Australia

MR S.J ODGERS, SC:   If the Court pleases, I appear for the applicant
with my learned friend, MR H.N. DHANJI.  (instructed by the Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

McHUGH J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, the first aspect is, this is one or two weeks late, so I will be seeking an application for an extension of time.

McHUGH J:   Yes.  Anyhow, proceed to your main argument.

MR ODGERS:   Your Honours, we submit that there are three significant errors made by the Court of Criminal Appeal.  The first was that in reviewing the head sentence that the sentencing judge imposed of six years, which the Court of Criminal Appeal increased to ten years, Acting Justice Newman stated at page 37 of the application book, if I could take you to that, paragraph 12, line 10:

Putting aside any considerations of totality, in my view His Honour fell into error in sentencing the respondent on each of the separate sentences he passed.  In both cases, putting subjective considerations to one side –

and he explained what those were subsequently –

the appropriate sentences should have been at the high end of the range of sentences applicable in this case.  I say this for two reasons. First, both crimes involved the use of a handgun . . . Second, the wounds suffered by the Zikria brothers, in particular those suffered by Mustafa Zikria, were very serious.  Indeed in the case of Mustafa Zikria the combination of the aggravating feature of the use of a handgun and the severity of the wounds he suffered in my view place the crime committed upon him in the category of the worst type of case.  In other words in considering sentence for the wounding of Mustafa Zikria His Honour should have considered imposing the maximum sentence.

Our submission is, that reveals clear error.  There is a complete failure by his Honour ‑ ‑ ‑

McHUGH J:   It is only an error of fact at best, is it not?  Even assuming you are right.

MR ODGERS:   Is it?  No, your Honour, with respect.  It is a failure to take into account a highly relevant consideration, a highly relevant objective circumstance, which was the critical objective circumstance upon which the sentencing judge relied. 

McHUGH J:   It is still a question of fact.  It is just a question of fact.  This Court would have little else to do if we granted special leave in sentence matters to do with issues such as you seek to raise in this particular case.

MR ODGERS:   Your Honour, the point I make and perhaps it is an issue of fact – I will address that in a moment, just so we are clear on what the point is.  There is a complete failure to take into account a critical objective fact, leading the sentencing judge to take the view that the sentence should be much less than if only there was the use of a gun and the seriousness of the injuries taken into account.  That, of course, was the factor of excessive self‑defence, which Justice Newman does not refer to at all.  We say the inescapable conclusion is that he has failed to take it into account, because if you do take it into account, you could not possibly say that it is in the worst class of case, one where you would consider imposing the maximum sentence. 

McHUGH J:   Well, he went to a theatre with a gun, with a handgun.  It is fairly serious, and two people were shot.

MR ODGERS:   Yes.

McHUGH J:   One of them almost died.

MR ODGERS:   Yes, and can I take you to what the sentencing judge ‑ ‑ ‑

CALLINAN J:   In this country, the most serious possible view has always been taken of the carrying and concealment of firearms, and I would deeply regret it if it were otherwise.

MR ODGERS:   Your Honour, we do not for a moment cavil with the proposition, nor did the sentencing judge cavil with the proposition, that those were two factors which made this a very serious offence.  Indeed, we would not cavil with the proposition that if that was all there was to this case, it would be appropriate to regard it in the worst class of case.

CALLINAN J:   And, indeed, the deterrence might be relevant to the category that you put it into.

MR ODGERS:   And we would accept that deterrence has a significant role to play, although a second argument is that when you are looking at the non‑parole period, you would give it less weight and more weight to considerations of mercy and rehabilitation.  I will come to that in a moment.

McHUGH J:   Mr Odgers, the criminal Bar, like the taxation Bar, has got to understand that this Court is not here to deal with questions of fact.  These are questions of fact, and whether or not the judgment is right or wrong, unless one is persuaded that it has led to a miscarriage of justice, the Court is not going to be granting special leave.  We cannot.  We just do not have enough time to deal with it now.

MR ODGERS:   Yes.  I do appreciate that, your Honour.  The second error that I will be going to will be seeking to raise an issue of general importance, but, before I abandon the first argument, I do respectfully submit that it does raise a question of principle as to whether or not it is appropriate, in a case such as the present, to describe it as in “the worst type of case”, describe it as one justifying the maximum penalty, where it is one where there was a vicious and violent attack on the applicant by two victims and at least two other people, where he was retreating, where he feared for his life, where he feared for his brother’s life, where he had good reasons to be afraid for his life, where he acted in self‑defence – in the sense that he believed that it was necessary to do what he did in self‑defence – and the jury’s verdict was explained on the basis that it was unreasonable of him to shoot, given that the attackers, vicious and violent as they were, were unarmed. 

I have made the point as forceful as I can.  In those circumstances, it is just inconceivable and wholly unreasonable and wholly unjust – to take your Honour Justice McHugh’s point – to say that this is in the worst type of case.

McHUGH J:   Well, just look at the sentence itself, and take into account everything that you put.  How can you say that the sentence in this case constitutes a miscarriage of justice?  It does not even get to the median line.

MR ODGERS:   Your Honour, no doubt Justice Newman was significantly influenced by what he called the “subjective considerations”, and those were the fact that he was essentially a person of good character, he had a minor criminal history, he had very good prospects of rehabilitation, he was somebody who had live‑in custody of his eight year‑old son, and was doing a great deal to look after his son without the benefit of the mother, with the assistance of his parents.  There were very strong subjective factors in his favour, quite apart from what I have referred to as the highly significant objective circumstance of the excessive self‑defence.

CALLINAN J:   Just remind me what the maximum was.

MR ODGERS:   25 years, your Honour. 

CALLINAN J:   He had to serve six, is that correct?  As a result of the ‑ ‑ ‑

MR ODGERS:   Yes, your Honour.  But, your Honour, bear in mind, with respect, that the court said, quite correctly, that they would have imposed a heavier sentence but for the fact that it was a Crown appeal.  So the court is indicating that this was the lowest sentence that they could possibly impose, notwithstanding all of the positive matters that I have brought to your Honours’ attention. 

CALLINAN J:   It certainly seems low to me ‑ ‑ ‑

MR ODGERS:   The non‑parole period of two years and nine months that was originally imposed, or the six years, your Honour?

CALLINAN J:   Both.

MR ODGERS:   Well, now, I am going to have trouble getting special leave, pretty obviously.

CALLINAN J:   He is a man carrying around a handgun.

MR ODGERS:   Yes.

CALLINAN J:   Asking for trouble.

MR ODGERS:   Yes, there was no evidence as to whether or not he may have had some legitimate purpose for it, because his case was that he did not have it in his possession.  So there really was not any evidence as to how it was that it came into his possession and the jury had obviously rejected that.  All I can say is that there was no evidence as to how it was that he was carrying it, other than, possibly, the inference that arose from the fact that he was training to be a security guard, but that is neither here or there.

CALLINAN J:   There does not seem to be much deterrence to me in six years, frankly.

MR ODGERS:   Well, your Honour, I know I am coming back to the circumstances.  Deterrence is to say to a person, if you carry a gun and you use it, no matter how subjectively understandable the circumstances, you are going to be sent to gaol.

CALLINAN J:   Well, then we will have everybody carrying handguns.

MR ODGERS:   No, no, with respect, for your Honour, no one is disputing for the moment he had to go to gaol.  The question was whether or not this man, in these circumstances, it was wholly inadequate to send him to a gaol for a minimum term of two years and nine months.  But I will pass on from that point and move to the second suggested error.  We submit that in reviewing the unusual proportion between the head sentence and the non‑parole period which the sentencing judge imposed, he adopted a proportion of 45 per cent ‑ ‑ ‑

McHUGH J:   46, was it not?

MR ODGERS:   I may be wrong about the numbers, your Honour.  It was two years, nine months compared with the head sentence of six years.  Justice Newman said at page 41, line 19:

Another matter of challenge to his Honour’s sentence is the fixing of the non‑parole period.  In both cases his Honour fixed a non‑parole period which was 46 per cent –

yes, your Honour –

of the had sentence.  In his remarks on sentence, which I have set out above, it seems that His Honour, in fixing the non‑parole period relied not only on special circumstances, (as had been conceded by the Crown to exist in this case), but also upon the actual circumstances of the commission of the offence.  As His Honour had already done so when dealing with the head sentence, to repeat the exercise when dealing with a non‑parole period seems to me to be a matter of error.

We say that this raises a question of general importance in that we say that Justice Newman has fallen into error because there was no necessary error in a sentencing judge saying, “Well, I have taken into account the objective circumstance of excessive self‑defence when I have set the head sentence, but I am going to give it greater importance when I set the non‑parole period”.  Indeed, your Honour Justice McHugh, along with Justice Mason, in Bugmy said ‑ ‑ ‑

McHUGH J:   In Bugmy, yes.

MR ODGERS:    ‑ ‑ ‑ said that the weight you give to factors relevant to both non-parole period and head sentence may be different, depending on the different purposes behind those sentences, and that since you might take the view that it is appropriate to give greater weight to rehabilitation and less weight to general deterrence when you are setting the non-parole period, so legitimately the view might be taken – to follow up on your Honour Justice Callinan – that while it is necessary to impose a deterrent head sentence to deter people from carrying weapons, mercy, taking into account the circumstances in which this applicant was and the reasons he did what he did, combined with his strong subjective circumstances, justified the sentencing judge in taking what was the merciful approach that he took. 

So we respectfully submit that there was no error made by the sentencing judge.  We say that Justice Newman and the Court of Criminal Appeal have fallen into error themselves, in that they have failed to appreciate that a factor can be given greater weight when determining the non‑parole period.  We say that is a question of general importance raised by this case. 

The other third matter, which I will not burden your Honours with at any great length was to simply point to the fact that Justice Newman mistakenly believed that the Crown Prosecutor had conceded only that concurrent sentences were appropriate.  In truth, he had conceded that the sentences should be the same and concurrent.  Justice Newman failed to appreciate that.  The result in the Court of Criminal Appeal was to impose sentences which were concurrent but not the same, and added two years for one of the offences.  We say that that was an error which impacted on the outcome in a way which was adverse to the applicant, and even that error is sufficient to justify appeal. 

Your Honours, I appreciate what your Honour Justice McHugh has said to me about the criminal Bar and appeals.  One of the difficulties applicants have is that when it is Crown appeals, if an error is made by the Court of Criminal Appeal, they do not really have a mechanism for challenging it.  It is the first time the error has occurred.  It is not something that has happened before an individual judge.  It is a problem that has arisen in the Court of Criminal Appeal, and if there is no remedy, then there is really, in truth, no appeal from an error made by a Court of Criminal Appeal. 

We do say that in the interests of justice in this case there were significant errors and that the sentence imposed was too heavy.  More importantly, we say that the original sentence, while your Honours might think it was a lenient one, was justified by the very unusual circumstances which were applicable in this case.  We say there was no error made by the sentencing judge and the Court of Criminal Appeal was wrong to find that there was error, even on the basis of manifest inadequacy, bearing in mind, as I keep stressing – and I will not bear your Honours burden with it anymore – bearing in mind the critical factor, which the sentencing judge described as the critical factor , which was this element of self‑defence.  I do not have any further submissions, your Honour.

McHUGH J:   Yes, we need not hear you, Mr Lamprati.

We are of the opinion that the sentences imposed in this case did not constitute a miscarriage of justice.  That is itself sufficient ground for refusing special leave to appeal without considering in any detail the particular submissions concerning the reasoning process of the Court of Criminal Appeal.

Accordingly, the application for extension of time is granted, but the application for special leave to appeal is refused.

AT 2.19 PM THE MATTER WAS CONCLUDED