Bond v The Queen

[1990] HCATrans 292

_lJi,r -!.) AUSTRALIA C" -'.>.)..>.,.~~~~(.I'.!

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S53 of 1990

B e t w e e n -

COLIN THOMAS BOND

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Bond 1 5/12/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 1990, AT 12.45 PM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant in this matter. (instructed by Craddock

M~rray and Neumann)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR R.A. HULME, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

BRENNAN J: Yes, Mr Game.

MR GAME:  I hand to the Court my outline of submissions and

two cases to which I refer.

BRENNAN J:	Yes, Mr Game.
MR GAME:	If the Court pleases. This is an application for

special leave to appeal from a decision of the New

South Wales Court of Criminal Appeal which, by a

majority on 12 April 1990 dismissed an appeal
against sentence by the applicant who was sentenced

to a total of 20 years imprisonment for the offence

of manslaughter. He was sentenced to 13 years for

the offence of grievous bodily harm with the intent
to have sexual intercourse and the offence of

robbery with striking he was sentenced to eight

years, all of those sentences to be concurrent, and a non-parole period of 15 years was fixed which was

to date from 10 December 1987.

Like the last case and like Radenkovic which

this Court, differently constituted, reserved on in

October of this year, this is a case involving a

redetermined sentence and this application proceeds

upon the assumption that Tis correctly decided

because·the applicant has a redetermined sentence
now of nine years five months and fourteen days
with an additional ·term of three years one month

and four days and the way in which we put our case

is that the appeal is against the sentence

originally imposed and that that submission was

accepted by the Crown in the Court of Criminal

Appeal and in this case the court followed the decision in the case of the T.

What happened to the applicant's sentence was

that he, like all other prisoners in the New South

Wales prison system, was credited with the

remissions to which he may have become subsequently

become entitled upon the assumption that he would

have earned 17 days for each month served which

produces a formula which has been used in other

cases of multiplying the sentence by point 638.

So, in effect, the whole of this application is

predicated upon the correctness of Reg v T.

Bond 2 5/12/90

Now, if I could take the Court to the first

point which is sought to be argued relating to the

co-operation and the plea. If I could take the

Court to the judgment of Mr Justice Badgery-Parker,

at page 71, at about line 17:

His Honour expressly gave credit for the

plea of guilty, not only as evidence of
contrition, but also because of the public
benefit of saving the time and expense of a

trial.

Now, what His Honour actually said in relation to

this appears at page 34 of the application book, at

the top of the page, he referred to a psychologists

report dated 7 March 1989 and then he said:

I do accept that in his undemonstrative way he

does have contrition for what he has done and

I accept that his pleas of guilty are

manifestations of that contrition. I take

that into account as well as the public

benefit of the saving of time and expense of a

trial.

Then coming back to page 71:

His Honour made no express reference to the

fact that, when first approached by police,

the applicant frankly admitted his guilt, was

fully co-operative with the police and gave a

full and substantially frank account of what

had taken place and assisted police by

facilitating a search of his home, and by

showing them where he had disposed of the

articles stolen by him from his victim. It

was argued on behalf of the applicant that

such behaviour on the part of an offender

ought to be taken into account in sentencing,

as a ground for leniency separate and distinct

from an offender's plea of guilty and express

of contrition.

In one sense that depends upon what is

understood by a plea of guilty. Obviously a person

who is co-operative and withdraws that co-operation

can expect no credit for their co-operation.	My
fundamental submission is that if a person is

co-operative with the police at the initial stages, then that is a relevant circumstance in sentencing, just as are many other circumstances, but that that

is a relevant sentencing circumstance. There may

be, and it is a relevant circumstance which makes

it distinct from a case, for example, where a

person does not co-operate but pleads guilty - to

co-operate and plead guilty is something more than

to plead guilty:

Bond 5/12/90

There may be cases where that is so. It is

certainly the case that an offender who gives

assistance to the police which enables the
police to clear up other crimes of which the

offender himself is guilty, but of which his

guilt might never otherwise have been

established, is entitled to some leniency over

and above that which his plea of guilty itself

attracts - Reg v Ellis. More than that, it is

well established that where an offender, who, following his arrest, gives assistance to the police which goes beyond the mere disclosure

of the detail of his own involvement in crime,

to the extent of revealing the criminal

activities of others, particularly in

circumstances where his own safety is thereby

threatened, will be entitled to a very

substantial discount indeed off the sentence

which would otherwise be appropriate - Reg v.

Perez Varga ..... Reg v. Cartwright.

Just pausing there - those two types of cases, in my respectful submission, are truly exceptional

kinds of cases and the cases of Ellis, Perez Varga

and Cartwright demonstrate that that is so.

However, it does not appear to me to be the

case that whenever an applicant confesses his
guilt and facilitates the establishment by the

police of the details of the particular crime

with which he charged, that he must receive a discount off his sentence over and above that

attracted by his plea of guilty and

expressions of remorse.

BRENNAN J:	Is that the sentence with which you join issue?
MR GAME:	Yes, but the way .in which I would seek to put it

is not to say that it sounds something like a

piling up of words but the submission that I make

is that the co-operation is something that has to

be taken into account separate and distinct from

the plea and separate and distinct from the

contrition.

Now, the plea, as identified by His Honour

Mr Justice Badgery-Parker, makes no allowance for

the plea as a demonstration of maintenance of

co-operation. I mean, what we have is a case where

a person admits their guilt and then, by their

plea, maintains their co-operation.

Now, the plea, as it might - as a matter of

language one might say, "Well, the plea of guilty,

the court has taken into account the earlier co-

peration.", but my argument is that the way in

which Mr Justice Badgery-Parker has approached it

Bond 4 5/12/90

there is no place in sentencing for the fact that

this person has been co-operative and that he has

not withdrawn his co-operation. In a nutshell,

that is the argument.

The plea of guilty itself attracts some

measure of leniency, both as evidence of

genuine contrition and because of the saving to

the community which it represents by the

avoidance of the need for a trial.

In a way, to describe the plea of guilty as

attracting some measure of leniency as evidence of

contrition is artificial because Mr Justice Allen

had referred to the plea as being evidence of

contrition but, really, it is - - -

BRENNAN J:  You do not have to worry about that, do you,

because you have got the benefit of that?

MR GAME:  Yes, I am not concerned about that but - and then,

the following words:

and because of the saving to the community

which it represents by the avoidance of the

need for a trial -

my only comment about that is that that, of course,

is a factor which is not personal to the defendant.

It does not subsume or take into account his

earlier co-operation.

A further discount may be appropriate if it

can reasonably be seen that the guilt of the offender could not have been established but for his own co-operation and admissions; but

this does not appear to me to be a case of

that kind.

My comment in relation to that would be this: that

certainly when such a case arises, then a greater

benefit might be given to the person in that

circumstance, but the fact that a person's

co-operation does not fall within that category is

not to say that the co-operation falling short of

such a case should be excluded from consideration

in sentencing. The fact that the - - -

BRENNAN J:  The problem that you face, the one that comes in

the next sentence, namely, was there an exclusion

of a factor which was relevant? Can you

demonstrate that the sentencing judge did not take

into account a relevant factor?

MR GAME: In a sense, that following passage is illogical,

in my submission, because Mr Justice Badgery-Parker

has, by the very reasons which have preceded it,

Bond 5/12/90

excluded it from being a relevant consideration.

Mr Justice Allen made no reference to the subject

at all. His only reference to the plea was as

~vidence of contrition, and as Mr Justice Kirby

said at page 50 of the application book at about

line 14:

It is suggested that these considerations may

have been in Allen J's mind. It is possible

that they were. But in an otherwise most
thorough and thoughtful judgment on sentence,

His Honour makes no reference to them.

BRENNAN J: But, does that not come to this, that your

submission is that a sentencing judge, unless he

identifies all the relevant factors, which he takes
into account, may find that his sentence is subject

to attack because he has not referred to something,

and in this case has not referred to the course of

the police investigation.

MR GAME:  Your Honour, the submission arises, in my

respectful submission, in a slightly different way

because what - perhaps if I could just go back.

The submission that was put to the Court of factors were taken into account sub silentio then the sentence must have been too high to start with.

Now, coming to Mr Justice Badgery-Parker's

judgment, he has expressly excluded such matters

from being relevant in sentencing.

In my submission, it is simply illogical to

proceed from that stage to say that the matter

would have been given such small weight as was

relevant when one has already said that it is not a

relevant sentencing matter. It just does not

follow.

BRENNAN J: Yes, well that is -

MR GAME:  Moreover, to describe it as receiving such a small

part was appropriate really reduces it to a point

where one must say that he regarded it as being of
almost infinitesimal weight and, obviously, not

such weight that it could have affected the

sentence.

BRENNAN J:	Mr Game, in this case where the circumstances of the offence were serious and the learned sentencing
judge took into account the contrition which he
attributed to the accused and his plea of guilty
and expressed himself as doing so; in those circumstances, would the element which, in your
submission, he may not have taken into account,
have made much difference to the sentence?

Bond 6 5/12/90

MR GAME: Well, the way in which I would approach it is

this. The sentence is really at the very top of

t~e range. It is very hard to identify precisely

what weight, in terms of years, but my submission

is that it demonstrates that he must have started

too high so that the failure to refer to the

matter, coupled with the sentence which was

actually imposed, is what demonstrates error in

this case. I realize that there are some problems

with that, but that is the only way in which I can

put the submission.

BRENNAN J: Is your argument complete or do you have some

further argument to put?

MR GAME:  That would be a suitable moment. I have other

arguments to put.

BRENNAN J: Very well, then we will adjourn now until 2.15

pm.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN J: Yes, Mr Game.

MR GAME: If the Court pleases. If I could take the Court

to the submissions which are under the heading Bin

the outline of submissions. The learned sentencing

judge sentenced the applicant for the offence of

manslaughter upon the basis of an intent to do
harm, less than serious harm, and he sentenced for

the offence of inflicting grievous bodily harm with intent to have sexual intercourse upon the basis of

the same intent, that is to say, without realizing

that he was inflicting grievous bodily harm.	And
that really formed the fundamental basis of the

submission to the Court of Criminal Appeal that the

sentence did not reflect the objective criminality

for which the applicant stood to be sentenced.

Now, Mr Justice Kirby accepted that

submission, at the bottom of page 48 to the top of

page 49 of the applicant book. He referred to:

The fact, accepted by Allen J, that the

applicant had no specific intent to do

grievous bodily harm to the victim, still less

to cause her death. His intention was

initially to have sex with her and then, in

Bond 5/12/90

the rage and frustration of her peremptory
dismissal of him, to punish and humiliate her.

But it was not to kill her -

and it was not, of course, to do grievous bodily

harm. Then at the bottom of the page:

it is essential to bear in mind that the

applicant stands where he does more because of

brutal rage and rude, violent strength

exhibited upon his victim than because he

deliberately set out to terminate her life.

The latter intent was not suggested by the

Crown. It would have been inconsistent with

the evidence and the circumstances.

Now, Mr Justice Badgery-Parker did not address

this submission at all in terms, but he dealt with

how he identified the criminality at pages 66 and

following. Pages 66 to 67 he outlined findings of

fact which were made by the learned sentencing

judge, which included under No 1 the relevant

finding of fact, namely that he:

did not realise, carried away as he was, that

he was inflicting grievous bodily harm.

And then under 4:

he did not appreciate that his blows were

causing grievous bodily harm and that he did
not intend to cause her injury to that extent.

There is a reference under No 1 to the effect of finding by the sentencing judge that:

where he proceeded to cruelly bash her -

Although that was not the matter of any specific

complaint, as a matter of language it is hard to

see how one can "cruelly bash" another without

having any intent to do that person serious injury.

Now at page 67 Mr Justice Badgery-Parker

continued:

These findings fully justify his Honour's conclusion, which I adopt, that the conduct of the prisoner, "was vicious and callous in the

extreme" -

That in fact was not a conclusion, but it was an

observation made during the course of those

findings and it appears at page 29 line 18 and

following:

Bond 8 5/12/90

Making full allowance for the fact that

the prisoner had cause to believe that he had

been sexually cheated and had been dishonestly

manipulated by his victim, the conduct of the

prisoner was vicious and callous in the

extreme.

Now again, it is very difficult to see, in my

respectful submission, how a finding that an act is

vicious and callous in the extreme in these

circumstances could be anything less than a
conclusion that that person intended serious bodily

injury and I say that - - -

BRENNAN J:  The proposition is that he was not conscious of

it whilst he was doing it; let us say, as soon as

he did it, the paroxysm of fury was over and before he left the scene he knew full well that his victim was badly hurt and he left her there and did

nothing to summon any aid for her.

MR GAME:  Yes. I think the reference to the viciousness and

the callousness is a reference to the bashing rather than a reference to the leaving of the

scene.

BRENNAN J:  Mr Game, do you not have to face the question of

whether there is any error of principle apparent on

the face of the sentencing judge's judgment,

whatever might be said by the Court of Criminal

Appeal?

MR GAME:  Yes. In my respectful submission, there is an

error on the face of it because an unlawful and

dangerous act, manslaughter, in circumstances such as these could not in any circumstances bring upon

itself a sentence of 20 years' gaol.

Coupled with the submissions which I have

already made in relation to co-operation, were any

weight given to the co-operation, then it takes the

sentence beyond 20 years. Now, were he sentenced

to life imprisonment this man would have been

released well prior to 15 years. A sentence of

20 years for an unlawful and dangerous act,

manslaughter, is well and truly outside of the

range of sentences which could be imposed for an

offence of this kind, but that is not a submission

that I can really make to this Court but that is

the submission which I made to the court below and
is the foundation, in effect - forms the foundation

of the whole case but, obviously, I must find an

error of principle and I am seeking to find an

error of principle in the way in which the Court of

Criminal Appeal approached the question.

Bond 5/12/90

What I am seeking to do in relation to the objective criminality is identify error in the

j~dgment of Mr Justice Badgery-Parker, by

demonstrating that he, in fact, ignored the basis

upon which the applicant stood to be sentenced, and

it is my submission that that can be demonstrated

by looking at the way in which he dealt with the

section 61B offence, which is the offence of

grievous bodily harm with intent to have sexual

intercourse, because, in relation to that offence,

he took the view, and it is clear from pages 68

to 69 of the application book, particularly at

about line 10 on page 69:

For my part, although imagination may conceive

worse cases, I am satisfied that this was

indeed, objectively considered, one of the

worst category of cases giving rise to charges

under s.61B, and one to which, subject of

course to the existence of any relevant

mitigating circumstances and subjective
matters, the maximum penalty was appropriate.

Now the fact is that the worst category of

cases under section 61B is reserved for cases when
people intend grievous bodily harm, and intent to

do harm less than an intent to do grievous bodily

harm- could not put that case in the worst category
of 9ases.

BRENNAN J: Section 61B does not deal with that, does it? Section 61B provides for malicious infliction of grievous bodily harm with intent to have sexual

intercourse.

MR GAME:  Yes, but he was sentenced upon the basis that he

had an intent to do harm less than serious bodily

harm in relation to that offence. The worst

category of cases under section 61B must be

reserved for those cases where the offender intends

to wreak upon their victim grievous bodily harm.

DEANE J:  How can you be convicted of grievous bodily harm

with intent and also be convicted of manslaughter?

MR GAME: Well, you cannot.

DEANE J: Well, you were.

MR GAME:  I am sorry, you cannot be if you intend serious

bodily harm, but the infliction of the grievous

bodily injury is precisely the same assault as that

which forms the subject-matter of the manslaughter.

The point that I am trying to demonstrate is that

by putting it in the worst category of cases, it

demonstrates that the Court of Criminal Appeal has

fallen into the error of treating this as if the

Bond 10 5/12/90

applicant intended - putting it in the worst
case - as if the applicant intended grievous bodily
injury. Otherwise the case could not fall within

the worst category of cases under section 61B.

The subject-matter of the offence is precisely

the same except that the offence under section 61B

includes the specific intent to have sexual

intercourse which was abandoned.

GAUDRON J:  I think the question directed to you, Mr Game, was to this effect: why did not the section 61B

offence merge in the manslaughter?

MR GAME: Well, it did, except for the fact that there was

the additional specific intent to have sexual

intercourse.

GAUDRON J: Yes, but if it had merged in the manslaughter,

it would not sustain the separate conviction nor,

of course, would it sustain a separate penalty.

MR GAME:  No.

GAUDRON J: But, I suppose, in the circumstances of this

case the pleas were entered and that is the end of

the matter and no extra sentence is discernible?

MR GAME:  Yes. In summary, I have really put my submissions

in relation to B, the second part of my

submissions. Those are my submissions, if the

Court pleases.

BRENNAN J:  The Court will adjourn briefly to consider what

course it should take.

AT 2.34 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.42 PM: 

BRENNAN J:  We need not trouble you, Mr Solicitor. No error

emerges in the reasons of the Court of Criminal

Appeal which would justify the intervention of this

Court. Accordingly, special leave is refused.

AT 2.42 PM THE MATTER WAS ADJOURNED SINE DIE

Bond 11 5/12/90