Britten v The Queen

[2004] HCATrans 424

[2004] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P70 of 2003

B e t w e e n -

CARL BRITTEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.31 AM

Copyright in the High Court of Australia

MR B.S. HANBURY:   If it please the Court, I appear on behalf of the applicant.  (instructed by Beau Hanbury)

MR K.P. BATES:   May it please the Court, with my learned junior, MS N.A. LOCKWOOD, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ:   Yes, Mr Hanbury.

MR HANBURY:   If it please the Court.  Your Honour, grounds for the application for special leave appear at page 64 of the application book.  The applicant does not now contend for 1.1 nor 1.2.  The applicant asks that the Court extends time or enlarges time.

GLEESON CJ:   That is not opposed?

MR BATES:   It is not opposed.

GLEESON CJ:   Yes, you have that.  Really it is 74, is it not, 74 and 75 of the draft?

MR HANBURY:   Your Honour, that is the draft.  The application ‑ ‑ ‑

GLEESON CJ:   So we can delete 1.1 and 1.2?

MR HANBURY:   Yes.

GLEESON CJ:   And we are concerned with 1.3 and 1.4?

MR HANBURY:   Yes.

GLEESON CJ:   Thank you.  Go ahead.

MR HANBURY:   The principle that the applicant contends for in this application, your Honour, is that in the case of McGarry the High Court gave reasons and directions about the way in which section 98 of the Sentencing Act 1995 should be approached.  In this case the applicant had previous convictions and, with respect, I would be grateful if the members of the Court would turn to page 13 of the application book.

The reason for that is because the applicant who had a previous record in New South Wales and Queensland came to Western Australia.  He was convicted of serious offences – this was in 1993 – and at about line 10, just above it, the members of the Court, with respect, would see that in 1993 the applicant was sentenced to 12½ years in gaol and was granted parole for an event in which he was involved.

GLEESON CJ:   What did he do?

MR HANBURY:   The offence was sexual penetration.  He had taken a young woman in a motor vehicle to a remote location, had assaulted the complainant and left her in a bad state.  He was subsequently charged with sexual penetration, amongst other offences.

GLEESON CJ:   He seems to be a sadist, is that right?

MR HANBURY:   I understand, with respect, why your Honour would say that, but certainly in relation to that set of offences he appealed to the Court of Criminal Appeal.  He represented himself, as the members of the Court, with respect, would see at page 13.  His appeal against the 12½ years was dismissed.  He served on that sentence, by my calculation, approximately six years and four months.  He was released upon his release on parole.

GLEESON CJ:   Where was that, Mr Hanbury?  In what jurisdiction, Western Australia?

MR HANBURY:   Western Australia.  At all material times the applicant has been in Western Australia.  He was released to parole on that sentence.  Whilst on parole he was convicted of burglary and received a further term of imprisonment and again was granted parole.  Subsequently, he was released and then committed the offences which give rise to this application. 

Your Honour, in very broad terms those offences were that he came upon a woman in the West Perth area, which is a short distance from where we are now.  It is in a business area.  The complainant was in a motor vehicle.  The applicant approached her.  There was an incident where the applicant assaulted the complainant whilst she was seated in her car, forced his way into the vehicle on the pretext that the complainant had run over his foot.  He then took the vehicle with the complainant in it driving about the West Perth area.  Eventually the applicant, having threatened to kill the complainant and having caused her bodily harm, told her to get out of the vehicle at Kings Park, which is a short distance away from West Perth.  He then drove the complainant’s vehicle towards Mandurah, south of Perth.  He, himself, went to Mandurah. 

My understanding was that he drove the vehicle to Subiaco, a short distance away, and set fire to it.  As a consequence of doing that the vehicle was a write‑off.  Subsequently, the complainant was treated for injuries and because of, perhaps, a pre‑existing heart condition, she sustained heart problems and underwent surgery for those difficulties and ‑ ‑ ‑

GLEESON CJ:   Judge Kennedy, as I recollect, remarked that she was rather taken aback by the appearance of this person and demeanour.  She said that this was the first time she had ever come face‑to‑face with a condition that psychologists describe in a particular way.  Where is that?

MR HANBURY:   Your Honour, the learned sentencing judge – I have marked it, your Honour – could see what was meant by “shallow effect” at page 33 of the application book at about line 20.  The members of the Court, with respect, would see that her Honour the learned sentencing judge said that:

He is disinterested in his offences and his victims and, for the first time, I have seen what psychologists mean when they talk of “shallow effect”.

GLEESON CJ:   Was there evidence that he is on medication or that he was off medication at this time?  What sort of treatment was he undergoing, if any?

MR HANBURY:   Your Honour, subject to anything my learning friend says, there is no evidence that he was receiving treatment at the time. There was mention on the earlier occasion upon which he was sentenced that he was receiving some counselling.

GLEESON CJ:   On the earlier occasion he was said to be manifesting what the psychologist called sadistic aggression.

MR HANBURY:   Yes.

GLEESON CJ:   Was that the explanation for this conduct on this occasion?

MR HANBURY:   I think, with respect, your Honour, the learned sentencing judge described him as a terrorist.  I do not have a recollection, your Honour, with respect, at the minute that her Honour referred to him in ‑ ‑ ‑

GLEESON CJ:   The learned trial judge took the view that he is a very dangerous character.

MR HANBURY:   Yes.

GLEESON CJ:   Was that not open to her?

MR HANBURY:   Your Honour, I think, with respect, one understands why it was that the learned sentencing judge could come to that conclusion, however, the point that is raised and contended for by the applicant is that notwithstanding his commission of very serious and bad offences, as reflected by the facts that were read at his sentencing, it is the applicant’s contention, with respect, that this matter could have been dealt with by the normal principles of sentencing. 

In that regard, your Honour, the sentence that was imposed, the nominal sentence of nine years with no parole, is not and, in my respectful submission, could not be complained of in some senses.  With respect, one might come to the conclusion that that nominal sentence was less than it could have been.  However, her Honour the learned sentencing judge went on to, in effect, extend the term of custody by making the order that she did, having regard to the provisions of section 98. 

The principle, your Honour, that the applicant is contending for in this application is that the High Court, with respect, in McGarry – and the learned sentencing judge, with respect, referred to comments that were made by your Honour the Chief Justice in that case of McGarry as it was before the Court and being argued.  But the principle that the applicant contends for is that, as I understand the decision in McGarry, the High Court, with respect, was not simply saying that it was sufficient to consider whether or not the case was an exceptional case. 

My understanding of the decision is that one has to go further and look at the legislation.  It may appear, as I understand the decision in McGarry, that at first glance that a case is an appropriate case in which to consider the question of whether indefinite imprisonment should be applied.  That having been done, and if the decision is that it would be an appropriate case, then the court would be required, in my respectful submission, to satisfy itself of all of the matters set out in section 98 and then, as I understand the decision in McGarry, it would still, at that stage, much in the way of the totality principle, be incumbent upon the Court to again consider whether or not the case was of such an exceptional nature that it was demonstrably necessary for the protection of the community that such an order be made.

In this case her Honour clearly, with respect, was very concerned.  Her Honour, with respect to page 35 of the book at about line 15, determined that the provisions of:

s 98(2)(a)-(c) have been made out and I am satisfied on the balance of probabilities that when he would otherwise be released from custody, he would be a continuing danger to society.

GUMMOW J:   How old is your client?

MR HANBURY:   Currently, your Honour, he aged 40 years.  My understanding is at the time he stood for sentence he was 37.

GLEESON CJ:   He was first imprisoned in New South Wales in 1984.  How old was he then?

MR HANBURY:   Your Honour, my calculation of that would be around about the age of 19, 20.  I wondered, if it is necessary, I can come back to that point, but it is certainly not contended that this man did not have a record.

GLEESON CJ:   His record is set out on page 50, very briefly.

MR HANBURY:   Yes.

GLEESON CJ:   How long had been out of prison at the time he attacked this woman?

MR HANBURY:   I am sorry, your Honour, I cannot give an exact answer to that, but certainly not for such a period that he could expect any credit for it.

HEYDON J:   Twelve months.

GLEESON CJ:   Can you tell me this, since he has been 20 how much of that time between then and now has he spent in prison and how much of the time has he spent out of it?

MR HANBURY:   My understanding of the materials is that between the time of the first offence and now he would have spent roughly about 15 to 16 months out of gaol.  My friend may be able to assist me there, but my understanding – I cannot find just at the minute – was that ‑ ‑ ‑

GLEESON CJ:   Do you mean over the last 20 years he has only been out of gaol for about 16 months?

MR HANBURY:   I am sorry, your Honour, not for the last 20 years.

GLEESON CJ:   Have a look at page 50, paragraph 32.

MR HANBURY:   Yes.

GLEESON CJ:   He first went to prison, as I understand it, in 1984.  This does not tell us any history of juvenile incarceration that he may have had.

MR HANBURY:   No, your Honour.

GLEESON CJ:   But assuming the first time he went to prison was in 1984, how much time between 1984 and 2004 has he spent in prison and how much time has he spent out of prison?

MR HANBURY:   I am sorry, your Honour, I cannot give an answer to that at the minute.  It is not contended that her Honour, with respect, was not right to have concerns.  Her Honour is an experienced judge in such matters.  It is not contended that her Honour, with respect, was wrong to have a concern.  Clearly, on the evidence, there is some cause for concern.  In very broad terms, it is submitted for the applicant, however, that notwithstanding his relatively poor antecedents and unhappy childhood and his record, that this was not the occasion upon which to make an order providing for his indefinite imprisonment.

Certainly in relation to this applicant, the circumstances are somewhat different from yesterday’s application and the person there concerned.  The present applicant, although he has been in trouble over the years and has been in and out of gaol in several States, it would be my respectful submission that the Court has said, with respect, in the case of McGarry that this is an exceptional power and in very broad terms that it should be used only where demonstrably necessary for the protection of society.

It is not possible, with respect, for me to say that there is not a risk.  Her Honour said that there was.  However, what is contended for is that her Honour, with respect, does not appear to have made a judgment that the applicant will commit further offences in the future, but in her sentencing remarks her Honour referred to the – we use the expressions “that he was likely” and the members of the Court, with respect, would see from page 35 of the application book at about line 15 that as high as it got in the learned sentencing judge’s remarks was that:

He would be very likely to engage in conduct the consequences of the commission of which would properly be called “grave” or “serious” for society as a whole.

Her Honour, with respect, then went on in the next paragraph to indicate her further reasons for it, they being at about line 21:

I do it because I believe it is necessary and that, otherwise, the risk the community is being asked to take is far greater than it can be expected to take.

In my respectful submission, the contention for the applicant is that in addition to the learned sentencing judge satisfying herself that it was an exceptional case it was incumbent upon her Honour to determine the matters individually in the provisions of section 98.  In my respectful submission, the High Court, with respect, has said in McGarry that even when that exercise is finished it is necessary for the Court to regard the circumstances as being exceptional.  I think, unless there is a matter that I can assist the Court with, those are the submissions.

GLEESON CJ:   Thank you, Mr Hanbury.  We do not need to hear you, Mr Bates.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed.

AT 9.50 AM THE MATTER WAS CONCLUDED