Beauregard-Smith v The Queen

[2002] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2001

B e t w e e n -

JAMES GEORGE BEAUREGARD‑SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 12.48 PM

Copyright in the High Court of Australia

MR G.F. BARRETT, QC:   May it please the Court, I appear with MR P.A. LONGSON for the applicant.  (instructed by C.B. McDonough & Co)

MR B.M. SELWAY, QC, Solicitor‑General of the State of South Australia:   May it please the Court, I appear with MR S.G. HENCHLIFFE for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GUMMOW J:   Thank you.

MR BARRETT:   May it please the Court, it is the applicant’s contention that when he sought to have a non‑parole period fixed in the year 2000 for the rape that he committed in 1994 and for the murders that he committed in 1997, the sentencing judge would necessarily be exercising his own sentencing discretion but that he should not, as a matter of sentencing principle, take a different view of the circumstances of the murders themselves than that taken by the first sentencing judge.  I pause here to mention that his Honour Justice Zelling was the original sentencing judge in the sense that, upon the jury’s verdict, his Honour merely pronounced the mandatory head sentence of life imprisonment. 

KIRBY J:   Justice Zelling, was it?

MR BARRETT:   Justice Zelling in 1978 was ‑ ‑ ‑

KIRBY J:   Yes.  He was a great judge, Justice Zelling.

MR BARRETT:   Yes.  His Honour was in that case, though, however not exercising ‑ ‑ ‑

KIRBY J:   But he was merely applying the mandatory sentence.

MR BARRETT:   That is right.  For our purposes the first sentencer was his Honour Justice Matheson in 1989 when his Honour fixed the non‑parole period.

GUMMOW J:   Now, where do you say Chief Justice Doyle fell into error in his very detailed judgment?  Which paragraph shows, if there is one, the fatal flaw?

MR BARRETT:   The fatal flaw consists of finding that the Act, the Sentencing Act, and the scheme of the Sentencing Act abrogates the principle of sentencing, namely double jeopardy.  His Honour does that in several places but the principal paragraph is perhaps paragraph 44, which is page 45 of the application book.

GUMMOW J:   Yes, thank you.

MR BARRETT:   If the Court pleases, in consequence of the position that the applicant put himself in by committing the second offence, he could not be heard to say that the facts of the murders were different from how Justice Matheson found them in 1989, nor could he suggest that the murders were in a lower scale of seriousness than found by Justice Matheson in 1989, but on the other hand ‑ ‑ ‑

GUMMOW J:   But is not the crucial passage of the Chief Justice’s judgment perhaps paragraph 56?

MR BARRETT:   Yes.  His Honour there deals with the point that we take issue with.  In our submission, as the learned Chief Justice said, it is inevitable ‑ ‑ ‑

GUMMOW J:   What would we be doing if we were to take the appeal?

MR BARRETT:   The Court, in my submission, would be pronouncing on whether the exercise undertaken by the second sentencer abrogated principles ‑ ‑ ‑

GUMMOW J:   No, no, with relation to this judgment of the Chief Justice, what would we be doing?  What error would we be pointing to?

MR BARRETT:   The error that the Court would be pointing to is the error that finds that the sentencer is not constrained in any way by the first sentencer’s view.  In our submission, the second sentencer is so constrained.

KIRBY J:   Now, is that the basis of the dissent of Justice Martin and of the lower sentence that he would have imposed, or is it not?

MR BARRETT:   The point upon which Justice Martin found the appeal made out was strictly the ‑ ‑ ‑

KIRBY J:   If I can just interrupt you.  At page 56 paragraph 84 he says that he has given consideration to your double jeopardy argument but he is “unable to escape the conclusion that the” Parliament of South Australia “necessarily involves” that risk.  So he has rejected your argument of double jeopardy.  So he does not dissent on that ground.

MR BARRETT:   With respect, not quite.  With respect, in the next sentence – perhaps one is looking at the first line of that page:

when the scheme is viewed in its entirety, it is a necessary implication of the scheme that the principles of double jeopardy have –

and this is the passage I emphasise –

a significantly modified application to the process of fixing a non‑parole period following the cancellation of parole –

whereas the majority, the honourable Chief Justice and Justice Williams, found that there was no change at all; that in fact there was no principle standing at all; that in fact the Act had clearly completely thrown out, if you like, any concept of double jeopardy when it comes to resentencing, when it comes to fixing a non‑parole period following a breach.        So, in his reasons, with respect, his Honour Justice Martin does differ and comes most of the way, if you like, with our appeal before the Full Court.

KIRBY J:   He fixes a non‑parole period of 10 years instead of 15 years.

MR BARRETT:   That is correct, yes.

KIRBY J:   And he does so, do you say, by saying double jeopardy is affected to some extent, but it is not completely to be ignored in the approach of the judge who is imposing the new non‑parole period following a supervening offence?

MR BARRETT:   That is right, in our submission, yes.

KIRBY J:   It leads to a five‑year difference in the non‑parole period in this case.

MR BARRETT:   Exactly.  With respect, his Honour could not have made such a difference simply on the basis of the point on which his dissent appears to turn, namely that his Honour the sentencing judge did not fix the sentence by standards applicable in 1994.  That seems to be the principal point of difference on the face of it but, in fact, it is plain, in my submission, that his Honour must have meant that approaching the sentencing process completely afresh was wrong. 

So, it is inevitable.  We do not argue otherwise than that the second sentencer exercises his or her own sentencing discretion and, if necessary, takes into account all of the matters ordinarily taken into account when fixing a non‑parole period, either in the first instance or in the instant here.  But our contention is that the second sentencer has to regard himself or herself as bound by the findings of fact, in particular; by the scale of seriousness of the offence that was enunciated, if it was, by the first sentencer.

KIRBY J:   But is not that a problem for you, that if you are looking at the end of the road – just assume that you were able to convince this Court that Justice Martin’s approach was valid and that there was some element of double jeopardy that is to be taken into account by the resentencer – at the end of the road the first offence, the murder of one and the suggested involvement in the other two, was a particularly horrendous murder.  It was a case involving the family, people in a position of trust and reliance on your client and, therefore, at the end of the road, would the sentence necessarily be any different?

MR BARRETT:   In our submission, it would.  The particular consideration taken into account by the learned sentencing judge, Justice Wicks, fixing the non‑parole period that he ought not to have taken into account, in our submission, is the emphasis that he gave, quite expressly, to the victim impact statements.  His Honour does so in quite clear terms on page 30 of the application book, if I may take the Court to that to illustrate ‑ ‑ ‑

KIRBY J:   What is wrong with doing that?  What is the point of having victim impact statements if you do not take them into account?  If there is enlivened by the supervening offence an obligation to sentence and if, therefore, it is by reason of the changes in the law of South Australia necessary to fix a non‑parole period in respect of the old life sentence, why would you not take those into account in doing so?  Why otherwise have them if they are not to be taken into account?

MR BARRETT:   They are to be taken into account in the present regime.  There was no such criterion ‑ ‑ ‑

KIRBY J:   Exactly, no such regime at that time.  It was just a fixed mandatory life sentence.

MR BARRETT:   That is right.

KIRBY J:   End of story, but by reason of, not only the supervening offence but the supervening changes to the law, a new sentencing regime is instilled; there is a judge who has his sentencing discretion activated; he now must look at the totality principle and, therefore, at the original offence as well as the supervening offence and come to a sentence which, in total, is just and appropriate, taking into account all the sentencing features.  Why, in those circumstances, is it not appropriate to take into account the victim impact statements of the first offence?

MR BARRETT:   For this reason, if your Honour pleases.  The matter which is fixed, or one of the matters which is fixed, by the first sentencer is that sentencer’s view of the facts of the case and of the seriousness of those facts of that case in the scale of seriousness.  When one has a look, as one is perfectly entitled to look, in the regime nowadays, to victim impact statements, one may be led to review the seriousness of those facts or, in fact, even to find the facts differently, but more the former, that the danger is that a different view will be formed.  Can I illustrate it in this way.  In my submission, it is plain from our legislative changes over the years, quite apart from those that exist elsewhere, that the legislature has required that sentences take greater account of the effect of a crime on victims.

We see several changes in the Sentencing Act since it was first introduced in 1988.  So it is not so much that the judge takes into account the victim impact statements now.  It is that the sentencer may thereby take a different view of the original seriousness and, in our submission, is that that is what appears on the face of it, at least, to have been done by his Honour Justice Wicks on page 30 of the application book.  His Honour was very much affected, as he could hardly fail to be, by the victim impact statements which he read.  One cannot really imagine him being affected in any different way, but there is the danger there, on the face of it, that his Honour took the more serious view of the offences than did Justice Matheson.  As we see from the disparate non-parole periods fixed by the majority and the minority in the Court of Criminal Appeal, it can be quite significant.  It could be as much as five years, the difference between the majority’s 15 years and Justice Martin’s 10 years.

So we have no quarrel with certain aspects of the offence and the offender’s position particularly, being taken into account by the second sentencer.  It is quite plain and inevitable that the breaching offence will cast an entirely different light on the first offence and the accused’s character.  He is exposed to no form of double jeopardy or injustice, if his breaching offence casts an entirely different light on the original offence, but it is the facts of the offence and the seriousness of it at the time that remains, in our submission, a constraint upon the second sentencer.  So what is different is the optimistic expectations of a judge in the position of his Honour Justice Matheson in 1989.  It is the optimistic prognostication that gave rise to the non-parole period then fixed of 22 years, which were subject to remissions, hence his release at the end of about 17 years.

In our submission, therefore, what in principle is not permissible is a complete ignoring of the first sentencer’s findings in those respects.  In our submission, section 32(5)(c) of the Sentencing Act does not abrogate that respect which must be had for the first sentencer’s findings of fact.  It is true that the applicant exposed himself on the breaching offence to a second sentencer declining to fix a new non-parole period.  Justice Wicks almost did that, so affected by the ‑ ‑ ‑

KIRBY J:   But it is not really an abrogation of Justice Zelling’s findings.  It is simply by reason of the refocus the judge is not in the regime of mandatory life sentence and therefore there is a need, in a sense, to elaborate the factual findings which were not needed for the purpose of fixing a mandatory life sentence ‑ ‑ ‑

MR BARRETT:   Yes.

KIRBY J:   ‑ ‑ ‑ and therefore Justice Wicks had, in a sense, to do something that Justice Zelling was relieved of by reason of the then state of sentencing law in South Australia.

MR BARRETT:    Just so.  That is why I focus not so much on his Honour Justice Zelling, who effectively did not have to exercise a sentencing discretion, but merely to pronounce the mandatory sentence, rather it is the reasoning of Justice Matheson when he came to fix the non-parole period some 12 years later and his Honour expressly made reference to the gravity of the offence and so on.  I am not saying he spelt out in much detail at all the degree of seriousness.  It probably spoke for itself.  But it is with Justice Matheson’s exercise of discretion that we are concerned.

KIRBY J:   Yes.  Well, you are concerned with that but, in a sense, the Full Court was concerned with Justice Wicks’ exercise of discretion and Justice Wicks had a different task.  Justice Matheson was, in a sense, looking forward and perhaps putting as beneficial a gloss on the facts that could properly be done by a judge with a view to giving your client parole and unfortunately, by reason of the supervening offence, Justice Wicks knew that that optimism had been proved very quickly to be misplaced and therefore he had to go back, for the exercise of his sentencing discretion, into the material in its detail, literally its gory detail, and that led to his being, in a way, better informed and perhaps not with the purpose of optimism, but with the purpose of realism in the light of what had occurred, a supervening serious offence.

MR BARRETT:    Yes, I have no quarrel with any of that, with respect.  However, it is Justice Wicks who, in our submission, is constrained by certain findings of Justice Matheson back in 1989.  I exempt from that, of

course, the effect of the intervening offence.  Of course that makes a difference, but it is the original findings about the seriousness of the offence and the facts that must remain a constraint upon the second sentencer and, in our submission, section 32(5)(c) does nothing to modify that position.  Criteria set out there may be taken into account by a sentencing judge declining to fix a non-parole period but, in our submission, it would be an error to revisit findings made by the first sentencer.  Everything else changes the circumstances and gives rise to the exercise of a new discretion.  There is only that fetter, and a fairly limited fetter, I guess, imposed by the double jeopardy principle.

In our submission, the provisions in the section, unfortunately, do not differentiate between a new non-parole period fixed at first instance, on the one hand, on the other, a new non-parole period fixed after a breach or, similarly, as envisaged by his Honour Justice Cox in Armstrong, a case on the list, a reapplication for a non-parole period after an earlier judge has declined to fix a non-parole period.  Different considerations, in our submission, apply in each case, yet the criteria, in the Act at least, in the section, appear all the same.  The courts fill the gap, in my submission, and determine which are the relevant and appropriate criteria.  The section, in our submission, says nothing about taking away the constraint that should exist in principle on the first sentencer.

In my submission, the approach which we are suggesting in no way offends the proscriptions suggested by the High Court in Wong’s Case.  The two-tiered approach which is proscribed in the fixing of non-parole periods in the first instance is not offended by the course we are proposing.

KIRBY J:   I do not think we will go into that.

MR BARRETT:    No, I shall not.  In our submission, by the obvious difference of opinion about the sentence and consequences upon the resolution of this matter, in our submission, this is an appropriate vehicle for an appeal to the High Court.  May it please the Court.

GUMMOW J:   Yes, thank you, Mr Barrett.  We do not need to call on you, Mr Solicitor.

The Court is not convinced that the majority of the Full Court of the Supreme Court of South Australia erred in the construction placed upon the Criminal Law (Sentencing) Act 1988 (SA). As Justice Martin, who was in dissent in the Full Court, acknowledged it was inevitable in the scheme of the legislation as applicable at the time of the resentence that the common law principle against double jeopardy has been “significantly modified in the process of fixing a non‑parole period following the cancellation of parole”. Nor are we convinced that the sentence imposed on the applicant occasion any miscarriage of justice in the relevant circumstances.

Accordingly, special leave is refused.

AT 1.10 PM THE MATTER WAS CONCLUDED