Boyes v The Queen

[2005] HCATrans 55

[2005] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M132 of 2004

B e t w e e n -

DAVID ERIC MONTAGUE BOYES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 12.21 PM

Copyright in the High Court of Australia

MR G.M. HUGHAN:   May it please the Court, I appear for the applicant.  (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MR C.W. BEALE, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GUMMOW J:   Yes, Mr Hughan.

MR HUGHAN:   If your Honour pleases.  The Court of Appeal was wrong in its approach as to the sentencing of persons who suffer ill health or physical disability.  That approach was wrong in that it was at odds with the longstanding, established authority of the courts in Victoria.  It was inconsistent with the longstanding decisions of appellate courts in other States, at the very least, South Australia and New South Wales, in approaches which have gained the approval, it is submitted, of the High Court and it is also an approach that is ‑ ‑ ‑

GUMMOW J:   Well, what should the Court of Appeal have done?

MR HUGHAN:   The Court of Appeal should have concluded that the applicant had discharged the onus of demonstrating before the sentencing judge that his ill health or disability should be taken into account as a factor in mitigation ‑ ‑ ‑

GUMMOW J:   Yes, but to what end result?  No custodial sentence?

MR HUGHAN:   No, your Honour, a sentence of imprisonment that was less than that which was imposed.  True enough it is that a suspended sentence was sought as being the disposition on the plea, but that was a perhaps ambitious attempt and what is sought is that ultimately the matter be returned to the Court of Appeal for resentencing in accordance with the appropriate principle which is the ill health of an offender is to be taken into account as a circumstance in mitigation of sentence when the burden of imprisonment would be greater, by reason of the ill health, upon that person than upon an ordinary prisoner.  That, it is submitted, is the meaning of the test that is applied or the first limb of the test that is derived from the South Australian case Smith and is applied in Victoria in Eliasen and is applied in New South Wales on the remittal by the High Court of the matter of Bailey.

So it is submitted that the approach the Court of Appeal took in this case is at odds with all of those approaches which are consistent.  It is also, it is submitted, at odds with the fundamental sentencing principle of equal justice and consistency in sentencing and it is submitted that it is out of kilter with the consideration of the effect of, for example, a psychiatric or psychological disability upon imprisonment such as is derived from the Victorian case of Tsiaras.  So that is the first basis upon which it is submitted that ‑ ‑ ‑

GUMMOW J:   The non-parole period was three years, nine months, was it?

MR HUGHAN:   Yes, your Honour.  As I say, that is the first basis upon which special leave is sought.  The second is that the Court of Appeal erred in its consideration or perhaps I might more correctly say its failure to consider the proposed fresh evidence or the proffered fresh evidence which would show the true significance of the circumstances of the applicant’s ill health and how that related to the imposition of a sentence of custody upon him but the Court of Appeal did so by indicating that the proposed additional ground of appeal in relation to fresh evidence would not be permitted. 

Now, as I say, your Honours, the test is set out in Smith’s Case and it is very clear that there are two circumstances in which the ill health or physical disability of a person standing for sentence will come into consideration as a factor in mitigation and they are set out in the materials and included in the judgment of the Court of Appeal, but in the judgment of R v Smith at page 589 his Honour Chief Justice King said:

Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.

I should point out straight away, what was submitted in the Court of Appeal was that the applicant had before the sentencing judge discharged the onus of establishing the first limb of those two tests.  It was not sought to put that the second limb was relevant in his case, but it was the first limb that was met, so it was said, and so the Court of Appeal said was not met because of what is submitted as a fundamental misinterpretation or misapprehension of the meaning of that test.  It is fair to say that the words of the test themselves as set out by Chief Justice King invite speculation as to the basis of comparison or the object to which comparison is to be made by the words:

imprisonment will be a greater burden on the offender by reason of his state of health -

However, the answer to that comes further down in Chief Justice King’s decision in Smith, again at page 589, in this way, down the bottom of the page in the last paragraph, the third line:

I am conscious, however, that the stress of worry about his potentially fatal condition may well cause imprisonment to bear more heavily upon the appellant than upon a healthy person.  In the interests of the appellant’s future, moreover, I am strongly moved to attempt to minimise the risk of deterioration -

which then goes onto a consideration of what might be described as the second limb of the test.

Now, in the written outline that was provided, I called in aid of the interpretation of that first limb derived from Smith, applied in Eliasen and applied in Bailey, Chief Justice King’s decision in De Vroome which is consistent to that but in the light of the way Chief Justice King dealt with the matter in Smith itself, I do not see the need to take your Honours separately to that case.

Now, in cases in Victoria following Smith, including Eliasen, the same approach has been taken, in my submission, and that is a comparison between the circumstances of this prisoner standing for sentence with physical disability or ill health and, what is described I think as, a notional, ordinary prisoner.

HAYNE J:   Now, Smith was a case where imprisonment was found to be likely to worsen the prisoner’s condition.

MR HUGHAN:   That is so.  That is in the passage that I did not take your Honours to.

HAYNE J:   And that is not this case.

MR HUGHAN:   No.

HAYNE J:   Imprisonment will not affect the applicant’s condition.

MR HUGHAN:   It will not exacerbate it or aggravate it, your Honour, that is so, but there are two limbs, it is said, on behalf of the applicant and the first limb, it is said, was met in the evidence that was provided before the sentencing judge and, indeed, was said by the sentencing judge himself in this respect – it is referred to at page 42 in the application book in the judgment of the Court of Appeal around line 16.  In response to counsel’s submission:

“a man of [the appellant’s] injuries is going to do it harder than an able bodied man of his age”, to which his Honour responded (not surprisingly, I think,):  “Sure….compared to someone else who is fit, in the prison system between the two of them, he’s going to have greater difficulty.”

Now, it is submitted that that finding, that conclusion that his Honour drew there - his Honour the sentencing judge is being quoted – when coupled with the conclusions that his Honour the sentencing judge made in concluding that the applicant suffered from physical disabilities that were significant, then putting those two together, it is submitted that the first limb of Smith was then made out.

The Court of Appeal in this case embarked upon an analysis of the question of whether the burden of imprisonment would fall more heavily upon a person standing for sentence by reason of illness or disability, that that involved a comparison between the life circumstances within and outside the custodial setting and, it is submitted, that that approach is wrong.

As I say, your Honours, the appropriate comparative basis is with the concept of a notional, ordinary prisoner as is said in Smith itself and is said in Bailey and in Eliasen, in my submission, and so that approach, it is submitted, was wrong because it is out of kilter with a whole range of established and longstanding authorities.  Indeed, as I recall it in Eliasen itself the court there said it has long been the case that the approach which is enunciated in the case of Smith in South Australia by Chief Justice King has been applied in the courts of Victoria.

GUMMOW J:   What do you say about the respondent’s argument in paragraph 5 on page 76 and paragraph 6 on page 77?

MR HUGHAN:   The respondent does, as his Honour Justice Chernov and the other members of the Court of Appeal did, seek to indicate that the test is not that which I have stated but the idea of a comparison between circumstances inside the custodial setting, inside the prison and circumstances outside it.  For the reasons that I have submitted and other reasons to come, it is submitted that that approach is not right and that that is the answer to the matters set out that your Honour referred me to. 

Now, in addition to the submission that the approach taken by the Court of Appeal here is out of kilter with a range of authorities are the following submissions.  In looking at circumstances that are analogous to the illness or physical disability, the Court of Appeal in Victoria has taken a view that is different and that is in the case of Tsiaras where the court has taken the view that the impact of a sentence of imprisonment - that psychiatric illness may mean that a given sentence will weigh more heavily upon a prisoner than it would on a prisoner in normal mental health and that approach is entirely consistent with the approach that is submitted the court should have taken here based on the authorities.

Further, your Honours, that in the consideration of cases in which a person standing for sentence has suffered injuries in the course of their offending or in the course of the apprehension from their offending, the court has been minded in such circumstances to impose a lesser sentence upon the injured party and that to do so would not offend the principle of parity insofar as an uninjured co-offender is concerned.

Can I also make this submission, your Honours, that this notion of which I speak is, in my submission, consistent with the idea of equal justice in sentencing and consistent with the statutory principle that there be consistency in sentencing because each of those concepts requires, in my submission, that like be treated alike and that where there are significant and relevant differences, those significant and relevant differences be taken into consideration.

So it is submitted, your Honours, that for a whole range of reasons, the Court of Appeal’s approach in this case was fundamentally flawed and the intervention of this Court is required to correct that approach, to put it back into line with fundamental principle, long‑established authority and to resolve an uncertainty that now arises in the State of Victoria as to how a person standing for sentence who suffers an ill health or disability is to be treated. 

Further, your Honours, insofar as the fresh evidence issue is concerned, it is submitted the Court of Appeal was also wrong in rejecting the fresh evidence.  The Court of Appeal acknowledged itself that the ‑ ‑ ‑

GUMMOW J:   It does not sound like a special leave point.

MR HUGHAN:   Well, the principle is set out within the judgment itself quite correctly but the application of the principle is a complete ‑ ‑ ‑

GUMMOW J:   I know.  That does not sound like a special leave point.

MR HUGHAN:   Well, your Honour, in my submission, that would be, standing alone, a point sufficient to warrant a grant of special leave because there is a miscarriage of justice in the way the Court of Appeal has treated the issue of fresh evidence in the particular case and that a grant of special leave would be warranted on that basis.  Of course, the first basis is that there is a question of public importance in relation to the ill‑health issue, if I can put it that way.  On the other hand, your Honours, in relation to the

fresh evidence issue, it is submitted that there is a miscarriage of justice in the way the Court of Appeal has dealt with it.

In support of that proposition, what I say, your Honours, is that the material before the Court of Appeal clearly demonstrated that there were facts available in the fresh evidence that showed the true significance of the applicant’s physical injuries or physical disability at the time of sentencing and that is a paradigm of the circumstances in which the Court of Appeal will accept fresh evidence on an appeal against sentence.  If your Honours please.

GUMMOW J:   Thank you.  We do not need to call on you, Mr McArdle. 

There is no reason to doubt the correctness of the decision of the Court of Appeal.  Accordingly, there are insufficient prospects of success in either of the proposed grounds in the draft notice of appeal to warrant a grant of special leave.  Special leave is refused. 

AT 12.40 PM THE MATTER WAS CONCLUDED